Lord Woolf recognised that “the role of ADR can be of great value to the parties and the court in achieving expedition and the saving of expense to the parties and the saving of resources for the court”.885
8.27His objectives have relevance to Hong Kong. These include:
(a)The parties should settle their disputes before resorting to court whenever it is reasonable to do so. Where litigation is unavoidable, it should be conducted with a view to encouraging settlement at the earliest appropriate stage, and
(b)where there is an appropriate ADR mechanism which is capable of resolving a dispute more economically and efficiently, then the parties should be encouraged not to commence or pursue proceedings until after they have made use of that mechanism.886
8.28Lord Woolf recognised that the absence of legal aid for ADR may be a reason for its relatively low use. He suggested that the use of an ADR scheme should be taken into account, if available, when a legal aid certificate for court is being considered.887
8.29In his final report, Access to Justice,888 he recommended legal aid funding for pre-litigation resolution of disputes and for ADR. At the case management conference and pre-trial review the parties should be required to state whether the question of ADR has been discussed and, if not, why not, and if so, with what result. In deciding on the future conduct of a case, the judge should be able to take into account the litigant’s unreasonable refusal to attempt ADR. Additionally the court should take into account whether the parties behaved unreasonably in the course of ADR.
8.30Lord Woolf recognised that lawyers may interpret a suggestion to use ADR as a sign of weakness. Therefore, he encouraged judges to suggest to the parties that substantial costs might be avoided by the use of ADR. This is only to occur when the parties have not discussed ADR. Lord Woolf reserved for consultation the question whether an unreasonable refusal to resort to ADR should be a relevant factor in deciding costs. In his final report he suggested that orders for costs should reflect not only the outcome of proceedings, but also the way in which the parties or their legal representatives have conducted their cases.
8.31Other recommendations were that the Lord Chancellor and the Court Service should treat it as one of their responsibilities to make the public aware of the possibilities which ADR offers. Lord Woolf’s reports stressed the need for the system to become more responsive to the needs of litigants. This would be achieved
885 Chapter 18, paragraph 25, ibid.
886 Ibid at Chapter 4, paragraph 7.
887 Ibid at Chapter 18, paragraph 35.
888 This was issued on 26 July 1996.