Australians who choose to litigate their commercial disputes rather than seeking settlements through alternative dispute resolution (ADR) may soon be penalised for their decision. Judges are showing signs of getting tougher with organisations that insist on their day in court.

Lawyer Frank Paton of Hunt & Hunt says the likelihood of Australian courts changing the way they approach commercial disputes may increase after a recent English Court of Appeal decision.

The UK decision occurred when an owner of several horses killed in a train accident tried to sue a privatised rail company for his losses. The judge suggested the man try ADR, but the rail company involved instead offered an insufficient settlement. Noting the rail company’s refusal to co-operate, the Court of Appeal in turn refused to grant an order that the horse owner pay their legal costs.

“It’s likely that in the future we may see judges using costs orders involved in a case to penalise anyone who refuses to enter into ADR,” Mr Paton said.