Refusing Non-Court Dispute Resolution (NCDR) Could Now Cost You
From 1st October 2024, courts in England and Wales will have new powers to impose legal cost penalties on parties who refuse to engage in non-court dispute resolution (NCDR) in TOLATA claims (under the Trusts of Land and Appointment of Trustees Act 1996) and disputes under the Inheritance (Provision for Family and Dependants) Act 1975.
This is a significant development that aligns with changes already introduced to financial remedy proceedings in April 2024. The aim is clear: to reduce unnecessary litigation and encourage separating or disputing parties to find common ground wherever possible.
What’s Changing and Why It Matters
Previously, in cases like inheritance disputes or property claims between cohabiting couples, there was no cost penalty for refusing to consider alternatives to court, such as mediation or other forms of NCDR. That has now changed.
As of 1st October, the court can depart from the usual “no order as to costs” principle where a party has unreasonably refused to participate in NCDR. This means that declining to engage in a reasonable non-court process could come with a price, not just emotionally, but financially too.
These rules bring TOLATA and 1975 Act claims more in line with other civil proceedings, where cost sanctions already apply. While family courts still cannot force parties to participate in NCDR, they can now issue cost orders for unreasonable refusals, a powerful incentive to engage in meaningful dialogue early.
The Legal Background: From Halsey to Churchill
The change follows the landmark Court of Appeal ruling in Churchill v Merthyr Tydfil CBC [2023]. This decision overturned the long-standing Halsey precedent, which suggested that compelling NCDR would breach Article 6 of the European Convention on Human Rights, the right to a fair trial.
In Churchill, the court clarified that requiring parties to consider or engage in alternative dispute resolution does not deny them a fair trial. This opened the door to wider changes in both civil and family law, ultimately leading to this expansion of the cost penalty framework.
What This Means for Separating Couples and Families
Whether you’re going through a cohabitation breakdown, an inheritance dispute, or facing a financial settlement after divorce, the message is clear: collaborate where you can.
This change isn’t about removing your right to go to court, it’s about ensuring that court is a last resort, not a first step. Taking reasonable steps to resolve matters outside the courtroom is now more than just advisable, it can protect you financially, emotionally, and legally.
For couples wanting to avoid the courtroom, our One Couple One Lawyer® approach enables both parties to receive impartial legal advice together from one lawyer, helping you resolve your legal and financial issues in a constructive, efficient way.
Our Take at The Divorce Surgery
At The Divorce Surgery, we support any measure that encourages cooperative separation and fair outcomes for all parties involved. We specialise in helping couples and families resolve disputes together, with legal advice shared jointly, ensuring everyone understands their rights and responsibilities without escalating conflict.
Our Start Together consultation offers guidance at the beginning of separation, helping both parties find a constructive path forward before positions become entrenched.
And for families looking to build sustainable post-separation arrangements, our Co-Parenting Service helps separating parents agree on how to raise their children after separation.
While we don’t offer services specifically for inheritance disputes, our ethos of clarity, cooperation and fairness applies across all areas where families are in conflict.
Final Thought
If you are involved in a TOLATA claim, an inheritance dispute, or any situation where non-court resolution might be an option, it’s now more important than ever to consider these avenues seriously.
Engaging early with a collaborative process isn’t just a sensible choice, it may now be the most cost-effective one too.
Author Name: Editor
Published content by The Divorce Surgery Editorial Team.
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