The guidance Resolution is issuing to its members is quite the opposite of the views being expressed in your recent article on Bowman v Fels (see [2005] Gazette, 17 March, 9).
The judgment establishes that certain activities that are not 'litigation from the issue of proceedings and the securing of injunctive relief or a freezing order up to its final disposal by judgment' will fall outside the scope of the section 328 arrangement. The question is whether steps in alternative dispute resolution will do so as well.
The starting point is the judgment itself and the key paragraphs 99-101. The test we are given is whether what is being undertaken is 'negotiating or implementing a consensual resolution of issues in a litigious context'. If so, the judgment concluded, article 7 must also apply to leave unaffected the ordinary course of this business.
We are told that those engaged in alternative dispute resolution must assess whether they are 'facilitating the resolution of a legal dispute and of the parties' legal rights and duties according to law in a manner which is a valuable alternative to the court-imposed solution of litigation to judgment'. The negotiations will be covered provided that there are 'existing or contemplated legal proceedings'.
The fact that the parties have contracted not to pursue litigated proceedings during the continuation of the collaborative process does not alter the fact that:
It may be harder for the collaborative lawyer, from the context of his process, to obtain guidance from the court as to the steps to be taken - and clearly the sooner that there is crystal clarity as regards the situation, the better.
James Pirrie, chairman of Resolution's collaborative practice group, London
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