Mediation in Public Law Cases

1. Mediation in Public Law Cases Toolkit & Road Map Part 1

2. TOOLKIT & ROAD-MAP This 3-part toolkit & road map sets out the legal framework underpinning the use of mediation in public and administrative law cases and provides a checklist of points for successful use of mediation in these cases.  Release dates: Toolkit - Part 1 – Monday 13th May 2019 Toolkit – Part 2 – Monday 20th May 2019 Road Map – Tuesday 28th May 2019 We hope this series will help both litigators and mediators use mediation more effectively in public law cases.

3. TOOLKITPART 1 INDEX • INTRODUCTION • A plea from the judiciary about administrative law and governmental disputes • ADR and the Government’s Dispute Resolution Commitment (DRC) • The statutory footing for mediation in the Tribunals Service • Pre-action Protocol for Judicial Review • R (Cowl) v Plymouth City Council

4. INTRODUCTION RICHARD PRICE OBE QC CHRISTOPHER BAKER Our toolkit and road map are intended to help unlock the significant potential for successful mediation in public and administrative law disputes, including judicial review claims. Public bodies of all kinds and the organizations and individuals with whom they interact – and their respective lawyers – should make much fuller use of the benefits of mediation in this field. The greatest scope for this is in relation to disputes where there is something to be resolved beyond the ordinary legal confines of the court’s jurisdiction. In part, responsibility may lie with the mediators themselves for the unexplored and untapped potential. Few mediators or their professional bodies highlight involvement in public and administrative law disputes. They tend to concentrate on areas such as commercial, consumer, workplace and family disputes. It is perhaps true that relatively few mediators have a wealth of experience and understanding about public law, public administration or judicial review procedure. This is where 4-5’s Mediation Group can help. This toolkit sets out the key elements of the legal framework which underpin the use of mediation in public and administrative law cases. The road map which follows contains a checklist of points for successful use of mediation in these cases. We hope that our toolkit and road map help both litigators and mediators use mediation more effectively in this field. This in-depth article is in three parts, being published sequentially.

5. A plea from the judiciary about administrative law and governmental disputes A recent judicial review claim is indicative of the current position. In R (Essex County Council) v Secretary of State for Education [2016] EWHC 1724 (Admin), the local authority challenged the Secretary of State’s decision to reduce funding for early years learning. The case had its origin in a decision originally made in November 2010, the local authority’s challenge against which was successful on one limited ground ([2012] EWHC 1460 (Admin), Mitting J). The Secretary of State then made a fresh decision in July 2013, which the local authority again challenged, but they were unsuccessful at the hearing in July 2016. At the beginning of his judgment, Holman J expressed judicial exasperation about the failure even to attempt mediation or other forms of ADR: “3. This dispute has thus become something of a carousel which, to my mind, does no credit to the field of administrative law, nor to the relationship of cooperation which should exist between the national and local arms of the government of this country. Underlyingly, the dispute relates purely to money, now said to be about £13 million. The subject matter is historical and a fact specific ‘one off’ which raises no recurring issue of principle or policy. “4. I asked whether in this long saga there had been any attempts at mediation or a negotiated solution, and I was told that there had been none. … I regret that these parties have not even at least explored the possibility of doing so. … I wish to stress that there is no reason at all why mediation or other forms of ADR should not have a significant role in the field of judicial review, at any rate in cases which do not raise important questions of law, principle or policy. The power of talk should be at its strongest between arms of government.”

6. ADR and the Government’s Dispute Resolution Commitment (DRC) The comments of Holman J in the Essex case appear, in context, ironic. In 2001, the Government had made an alternative resolution pledge, which was subsequently updated, and in 2011 became the DRC. The Ministry of Justice has confirmed that all governmental departments and agencies must adhere to the DRC. Under the DRC, government departments and agencies commit to: • Avoid the need to resort to formal dispute mechanisms wherever possible. • Engage in a process of appropriate dispute resolution as an alternative to litigation. • Choose processes appropriate in style and proportionate in costs to the issues that need to be resolved. • Recognise that use of appropriate dispute resolution processes can often avoid the high cost in time and resources of going to court. There have been proposals to extend the DRC concept to local authorities, but these have not yet been implemented. A draft version of the local authority DRC was published by the Civil Mediation Council, which recommends the use of mediation as an effective method of early intervention in suitable situations. The benefits of mediation are listed as: • Cost effective – and cheaper than more formal methods • Swift – no lengthy evidence gathering • Flexible – an informal process meeting the needs of the parties • Confidential – outcome will not set legal precedents • Impartial – mediators don’t take sides or make judgments • Empowering – parties decide what happens and when it happens • Long lasting – parties have ownership of the agreements made.

7. The statutory footing for mediation in the Tribunal Service It is often not understood that mediation and other forms of ADR have been afforded a statutory footing in the current framework for the Tribunal Service, which embraces a very wide of dispute resolution including areas of public administration. In the 2004 White Paper, Transforming Public Services: Complaints, Redress and Tribunals (Cm. 6243), the Government set out a wide-ranging “Route to a New System” for dispute resolution to improve public services and access to justice, with significant reference to mediation. The White Paper led to the Tribunals, Courts and Enforcement Act 2007 which contains the framework for the current tribunal system, creating among other things the office of Senior President of Tribunals (presently Sir Ernest Ryder). One of his statutory responsibilities is to have regard to “the need to develop innovative methods of resolving disputes that are of a type that may be brought before tribunals” (s2(3)(d)). Section 24 is concerned specifically with mediation and makes provision in relation to practice directions, including members of tribunals acting as mediators. The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) include at r3 provision that the “Upper Tribunal should seek, where appropriate (a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and (b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure”. The Senior President’s Annual Report 2018 includes discussion of mediation in the Property Chamber, where judicial mediation is offered in some cases. The President of Employment Tribunals has also issued guidance (22 January 2018), introducing a protocol for an initial Judicial Assessment to encourage settlement, including by way of Judicial Mediation (Appendix 1, para 18). There is clearly scope, however, to expand the availability and take-up of mediation across the jurisdictions of the Tribunals Service. It has, for example, taken until 2018 for Residential Property judges even to be given mediation training.

8. Pre-action Protocol for Judicial Review Turning to Judicial Review, the initial gateway for most claims is the Pre-action Protocol. The aims for this include enabling “parties to prospective claims to … (c) try to settle the dispute without proceedings or reduce the issues in dispute; (d) avoid unnecessary expense and keep down the costs of resolving the dispute” (para 3). In relation to ADR generally, para 9 exhorts litigants as follows, with para 10 including specific reference to mediation: “The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs. …” Adherence to and enforcement of the Pre-Action Protocol seems patchy, for a number of likely reasons. The parties and/or their legal representatives may not always be aware of options for ADR; if they are aware, they may consider them to be unnecessary or inapplicable, for example because ADR tends to be associated with private law disputes rather than public law; and/or they may consider that there is some advantage in issuing proceedings or disadvantage in using ADR. One particular concern in Judicial Review cases is the need to bring the claim promptly and in any event within 3 months (CPR 54.5(1)) and the incapacity of the parties to extend the time limit by agreement CPR 54.5(2). Late instructions or inactivity can therefore produce a situation where there is no option but to issue proceedings. Conversely, in cases where urgency and/or interim relief is sought, the stages envisaged by the Protocol become inapplicable. Moreover, any judicial insistence at the permission stage about using ADR largely depends on the defendant having clearly raised the point and actively offered to engage with a specific process. As the Essex case shows, however, this is far from routine.

9. R (Cowl) v Plymouth City Council One of the earliest and most-cited expositions of judicial encouragement towards ADR in judicial review work is R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935; [2002] 1 WLR 803. It is worth recalling what the case concerned, i.e. a challenge to a local authority’s decision to close a residential home and move the residents, alleging unlawful deficiency in the detail of the authority’s assessment process before making the decision. The claim failed at first instance ([2001] EWHC Admin 734; (2001) 4 CCL Rep 475) and the Court of Appeal was highly critical of the prolongation of the litigation and the claimants’ failure to accept the local authority’s invitation to use a statutory complaints procedure. In the words of Lord Woolf CJ (emphases added): “1 The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. … 2 The appeal also demonstrates that courts should scrutinise extremely carefully applications for judicial review in the case of applications of the class with which this appeal is concerned. The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. The legal aid authorities should co-operate in support of this approach. 3 To achieve this objective the court may have to hold, on its own initiative, an inter parteshearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of alternative dispute resolution has not been used or adapted to resolve or reduce the issues which are in dispute. 25 ... [There is an] unfortunate culture in litigation of this nature of over-judicialising the processes which are involved. It is indeed unfortunate that, that process having started, instead of the parties focusing on the future they insisted on arguing about what had occurred in the past. So far as the claimants were concerned, that was of no value since Plymouth were prepared, as they ultimately made clear was their position, to reconsider the whole issue. Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. … 27 This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. ...” Although Cowl is often relied on by defendants, this is far from universal or completely effective. Administrators sometimes approach the threat of litigation as a binary choice between one of their own decisions (either past or on reconsideration) or a judicial decision. The option of engaging with a Claimant and (in the case of mediation) an independent third party can seem alien to their culture and administrative convenience. For their part, claimants in Judicial Review proceedings will sometimes present the challenge as an issue of legal principle and future policy or process, in order to make the case seem more important and take it out of the category of an historical or anomalous “one off”.

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