Mr Hurst appears to have developed a dangerous obsession with litigation as a result of the disastrous partnership dispute that led to his bankruptcy. He appears to have pursued claims irrespective of his prospects of success. The interminable Jarndyce vs Jarndyce from Dickens' Bleak House springs to mind.
Against that background, it is hardly surprising that the court had some sympathy with his former barrister's refusal to mediate. However, even in Hurst vs Leeming the court acknowledged the principle that a party that refuses to mediate may be punished by way of cost sanctions, even though it declined to do so in this instance. Given that Mr Hurst was bankrupt, the practical significance of the costs order would have been limited anyway.
The finding in Hurst is not inconsistent with the approach in Cowl vs Plymouth City Council and Dunnett vs Railtrack Plc, where the Court of Appeal made reference to the overriding objective of the courts, namely to deal with cases justly by way of active management. The duty of the parties is to assist the court to further that objective through serious consideration of the use of alternative dispute resolution procedures.
The Court of Appeal observed that whether or not the parties had discharged their duty was relevant to the question of costs.
The Hurst case is also a million miles from disputes between commercial organisations advised by experienced firms of solicitors and counsel, knowledgeable in the ways of construction industry disputes. I would suggest that it would be dangerous to rely on Hurst vs Leeming in commercial disputes of this kind.
Although it is clear from recent events and case law that the judiciary is intent on encouraging parties to use alternative dispute resolution, we should not forget the Civil Procedure Rules, part 1.4 of which says that the courts should encourage the parties to use ADR where it considers it appropriate and help them to use such procedures. This is all part of furthering the "overriding objective" of dealing with cases justly by way of active management.
The latest development is the announcement by the Court of Appeal on 10 March that it has appointed the Centre for Effective Dispute Resolution body "CEDR Solve" to relaunch the Court of Appeal mediation scheme.
This is a scheme to encourage mediation after the first instance decision but before the appeal has been heard. The Lord Chancellor's Division also published a report on 20 March into the use of ADR.
The CAMS was not successful first time around and the report recognises that certain changes need to be made for it to succeed this time. For example, the report highlights the need for courts to be more selective when it comes to deciding the circumstances in which the parties should be encouraged to mediate. It notes that blanket invitations should be avoided.
It is also suggested that the US Appellate Court mediation scheme, which has worked with considerable success, points the way forward – although the high rate of success in the USA may be connected with the considerable experience US courts already have of ADR and mediation.
If this is right, then it may mean that English judges require more training in ADR and mediation to achieve the scheme's full potential. Overall, although the relaunch of the CAMS is important in itself, it also tells us a lot about the senior judiciary's continued commitment to ADR.
The relaunch of CAMS reinforces the fact that lawyers acting for either party to a dispute are under a clear obligation to resort to litigation only where it is unavoidable. It also serves as a timely reminder to all parties that mediation cannot be refused without unpleasant consequences – unless, of course, one can persuade the court that your opponent is of a similar disposition to Mr Hurst. Even then, refusing to mediate is a dangerous game.
Mark Roe is a senior partner in Masons' international construction group and head of its alternative dispute resolution unit. Co-author Marcia Jennings is a solicitor.