corresponding appellate tribunal and from there to
the Court of Appeal.
■All appointments of chairmen and members of
tribunals should be by the Lord Chancellor. Train-
ing, particularly in interpersonal skills, should be
improved.
■There should be active case management, similar to
the system used in the civil courts following the
Woolf reforms.
■Tribunals should work with user groups to improve
the accessibility of tribunals, for example, by ensuring
that: (i) original decision-makers produce reasoned
decisions; (ii) the Tribunal Service provides informa-
tion about, for example, how to start a case, present it
at a hearing and how to appeal; (iii) voluntary and
other user groups are properly funded to assist users;
and (iv) tribunal chairmen are appropriately trained
to assist users to present their cases and make the pro-
ceedings intelligible.
■IT systems should be improved both to enhance
administrative efficiency and also to improve public
understanding of the work of tribunals.
The government’s response was contained in a White
Paper, Transforming Public Services: Complaints, Red-
ress and Tribunals (2004). In April 2006 the Tribunals
Service was established as an executive agency of the
Department for Constitutional Affairs (now the Ministry
for Justice) to provide a common administrative support
to the main tribunals. Part 1 of the Tribunals, Courts
and Enforcement Act 2007, which received the Royal
Assent on 19 July 2007, introduces a new simplified
statutory framework for tribunals. Existing tribunals
will be brought into a unified structure, consisting of
two new tribunals – the First Tier Tribunal and the
Upper Tribunal, each organised into Chambers (groups
of tribunals) headed by a Chamber President. The pro-
posed Chambers are:
First TierSocial entitlement, General Regulatory,
Health, Education and Social Care, Taxation and Land,
Property and Housing
Upper TierAdministrative appeals, Finance and Tax,
Lands.
The tribunal judiciary will be overseen by a new judicial
office, the Senior President of Tribunals.
The Council on Tribunals will be replaced by the
Administrative Justice and Tribunals Council which will
have a wider remit.
Alternative dispute resolution
So far in this chapter we have examined formal methods
of settling disputes by means of legal action, known as
litigation, in a court or tribunal. In practice, only a relat-
ively small number of disputes are resolved in this way.
The vast majority of disputes are settled by other means
outside the formal court system. There are many good
reasons why the parties themselves may prefer an ‘out-
of-court’ compromise to courtroom conflict: e.g. fear of
spoiling an otherwise satisfactory relationship; the cost
of legal action, the amount of money at stake; difficulty
in predicting the outcome of the case; or the likelihood
of bad publicity. The drawbacks of pursuing a court
action act as a powerful incentive for the parties to seek
alternatives to litigation.
In its 1998 White Paper, Modernising Justice, the
government stated that one of its objectives was to
increase access to justice and to ensure that there were
effective solutions available to people who needed
help, which were proportionate to the issue at stake. In
its view, litigation in courts and tribunals should only
be used as a last resort. The different alternatives to
litigation are usually referred to as alternative dispute
resolution (ADR). In recent years, potential litigants
have received strong encouragement to resolve their
differences by using ADR. The new Civil Procedure
Rules require courts to encourage the use of ADR in
appropriate cases. So what is the position if one of the
parties does not want to participate in ADR? The Court
of Appeal cases of Halsey v Milton Keynes General NHS
Trustand Steel v Joy(2004) both considered the circum-
stances in which a court should impose a costs sanction
against a successful litigant on the grounds that he has
refused to take part in ADR. The court’s guidelines are
as follows:■A court cannot compel the parties to engage in
mediation. ADR is a process which is entered into
voluntarily and an order to engage in ADR may be
a breach of Art 6 of the European Convention on
Human Rights (right of access to the courts).
■The role of the court is to encourage ADR. The
encouragement may be ‘robust’.
■Costs may be awarded against the successful party if
he has unreasonably refused to agree to ADR.
■The burden of showing that the refusal was unrea-
sonable rests with the unsuccessful party.Part 1Introduction to law