Increased ADR focus in new Commercial Court guidance
Specific provisions directing parties to consider alternative forms of dispute resolution (ADR) are among the new requirements for commercial actions set out in Court of Session Practice Note No 1 of 2017, which took effect this week (27 March 2017).
The new practice note, which replaces Practice Note No 6 of 2004, now requires parties to consider ADR at an early stage, advise the court on the steps taken to achieve settlement and in most cases to attend a joint meeting.
Before beginning court proceedings, parties should now “consider carefully and discuss whether some or all of their disputes may be amenable to some form of alternative dispute resolution”. Again, ahead of the procedural hearing, parties should “consider and discuss whether resorting to alternative dispute resolution might be appropriate in respect of some or all of the issues”. At that hearing the court will expect them to advise it on the steps that have been taken to date to achieve an extrajudicial settlement and on the likelihood of such a settlement being achieved, and whether the court itself might have a role in achieving this.
Commercial judges now have an express power to order parties to hold a joint meeting, “with a view to exploring whether the dispute is capable of extra-judicial settlement or, alternatively, whether the issues requiring judicial determination can be restricted”. While “such an order will not be made as a matter of course", the note adds, "it is likely that a joint meeting will be ordered in most cases”.