CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – THE MOVEMENT TOWARDS MANDATORY ADR OR ALTERNATIVE DISPUTE RESOLUTION

15 February 2025 11:04 am

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether the legal environment is shifting towards mandatory ADR or alternative dispute resolution and what this could mean for will contest claims and/or will disputes

There is no doubt that the movement towards mandatory ADR or alternative dispute resolution is gathering pace

The movement towards mandatory ADR (alternative dispute resolution) is gathering pace.

In an earlier blog (in 2023) we reported on what was then a recent decision whereby the Court of Appeal had ordered the parties to a dispute to engage in a mediation:

alternative dispute resolution

The case in question was called Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 and followed an earlier decision in 2019 in the same court called Lomax v Lomax 2019 EWCA Civ 1467 in which it was found that the Court could order the parties to engage in something called an “ENE” (early neutral evaluation) – akin to a mediation but with the Judge sitting as a mediator and recusing him or herself following that hearing. In some respects an ENE appointment is even more powerful than a Mediation where the appointed Mediator will not give legal advice. In contrast the Judge in an ENE is being asked to provide his/her opinion and frankly is not shy at giving it. This is a particularly helpful device where one of the will contesting parties is being particularly intransigent.

DKH Retail Group and others v City Football Group Limited

This has only just been reported on by The Law Society Gazette – see:

High Court orders compulsory mediation despite defendant objections | Law Gazette

It deals with the scenario where one of the parties to a dispute (not a Will claim and/or Will contest dispute in this instance) maintains that a mediation would be pointless – often because they perceive they have a cast iron claim or defence. Here the Court determined that it could and would order one regardless. The basis for this appears to be related to the often surprising effectiveness of mediations. It is quite revelatory really how even some of the most intractable claims are capable of a resolution in this way.

The actual decision can be found here:

DKH Retail Limited & Ors v City Football Group Limited – Find Case Law – The National Archives

Mr Justice Miles, presiding over the case, commented at paragraph 40 of his helpful Judgment:

“There is also some force in the submission of counsel for the defendant that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement, one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere. The purpose of mediation is to remove roadblocks to settlement. I am unable to accept the submissions of the defendant that a mediation here has low prospects of success and that adjudication by a court is necessarily required. The range of options available to the parties to resolve the dispute through mediation goes beyond the binary answer a court could provide. There may be solutions other than yes or no”

This leads us to provide yet another reason to mediate which is of course that the range of settlement options (by and large) is much wider than that which the Court can Order since its hands are usually tied by statute. For example, in financial provision claims under s. 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), it is s. 2 of the Act which determines the Orders which the Court or Judge can make whereas the parties to that dispute can come to completely novel agreements to include for example:

1. an agreement in relation to the deceased’s ashes and other personal items including photographs;

2. an agreement to ringfence a part of the estate (against the claim) whereas the Court is obliged to deal with the entire net estate;

3. an agreement to vary the terms of the deceased’s Will to create and/or adjust Trusts which deal with not just the applicant’s requirements but also the defendants’;

4. an agreement which deals with property and assets beyond just those forming part of the deceased’s net estate;

5. an arrangement for the payment of costs which the Court may not in general Order including an agreement that the parties costs be paid by the estate.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.