Court's power to order ADR and costs consequences of refusing to engage (CPR 3.1(2)(o), 44.2(5)(e))
Fenwick Logistics Ltd is defending a £240,000 multi-track claim for breach of a warehousing contract brought by Orla Byrne Foods Ltd in the County Court. At the case management conference in June 2026 the claimant invites the court to direct mediation. Fenwick's managing director instructs its solicitor to oppose this, saying that Fenwick is confident of winning at trial and that, if it wins, the court will have to award it its costs whatever happens about mediation.
Which of the following best describes the position?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: The court may order the parties to engage in ADR, and non-compliance, or an unreasonable refusal to engage, is conduct it may take into account on costs.
THE RULE TO REMEMBER
The court may order parties to engage in ADR (CPR 3.1(2)(o)); failing to comply, or unreasonably failing to engage, is conduct relevant to costs under CPR 44.2(5)(e).
Court's power to order ADR and costs consequences of refusing to engage (CPR 3.1(2)(o), 44.2(5)(e))
Dealing with a case justly includes promoting or using ADR (CPR 1.1(2)(f)), and active case management includes ordering or encouraging the parties to use ADR (CPR 1.4(2)(e)). CPR 3.1(2)(o) gives the court an express case management power to order the parties to engage in alternative dispute resolution, reflecting Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416. Costs remain discretionary: under CPR 44.2(2) the general rule is that the loser pays, but the court may make a different order, and under CPR 44.2(5)(e) the conduct it considers includes whether a party failed to comply with an order for ADR or unreasonably failed to engage in ADR. Fenwick's managing director is therefore wrong on both points. The court may direct mediation, and even if Fenwick wins at trial, an unreasonable refusal to engage could lead to a reduced or adverse costs order.
Why A is wrong: CPR 3.1(2)(o) expressly empowers the court to order the parties to engage in ADR.
Why B is wrong: Costs are discretionary under CPR 44.2, and a failure to engage in ADR is relevant conduct even for a winning party.
Why C is wrong: Striking out is not an automatic consequence; the usual sanction for unreasonable refusal is in costs.
Why D is wrong: Parties must consider settlement and ADR at all times, and the court's ADR powers apply throughout the proceedings.
A little more practice done.
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A GOOD HABIT, DELIVERED
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