Hugh Grant made headlines last month, as he announced that his longstanding litigation over phone hacking would come to an end. He suggested he had been forced to settle after a significant Part 36 offer was made. He said he was advised by his Lawyers that the consequences of non-acceptance, well known to practitioners, would be significant, given that he was unlikely to obtain a higher financial reward at trial. Mr Grant publicly vented his frustration that he was not able to prove his allegations publicly in Court and perhaps expose further wrongdoing as a result.

Meanwhile, the Court of Appeal handed down its decision in Sherman v Reader Offers Ltd [2024] EWCA Civ 412. In allowing the appeal, the Court nevertheless criticised the parties suggesting that the matter, which had taken “a total of eleven days before the Court” and in which “nobody died, or was injured or suffered any lasting damage”, should be settled. All three Justices made separate pleas for the matter not to return to Court.

While the rationale behind Part 36 is sound, and the Justices are undoubtedly seeking to aid the parties, they raise a key question of whether vindication by the Court is something civil litigants should be entitled to. The Court is clearly moving towards more Alternative Dispute Resolution (“ADR”) and has recently revered the prohibition on the Court ordering mediation and ADR (see our recent analysis of Churchill v Merthyr Tydfil). Whether this is well intentioned, seeking to save people stressful and expensive litigation, or with an ulterior motive, seeking to lessen the load on an underfunded and overburdened Court, the question remains: should an individual be entitled to a day (or eleven) in Court?

The Court’s view in Sherman v Reader Offers Ltd appears to be no. They suggest that in essence a civil remedy, which is almost always monetary, must be viewed in proportion to the costs and likely outcome of litigation. However, parties often have a variety of motivations for coming to Court, and in reality, those who seek only monetary compensation are already actively engaged in alternative methods of resolution. It also raises the question of whether parties with personally important objectives, but of no particular financial value or significance, should even be allowed access to the Court system. Litigants, for instance, might contest parking tickets or minor traffic accidents, purely because of a point of principle, rather than due to other concerns such as unaffordability.

The concept of the “game not being worth the candle” (from Jameel v Dow Jones and Co) has been a subject of discussion for some time. In essence, whether some claims are of such limited value that they shouldn’t be allocated Court resources. However, surely this principle cannot be designed to deny individuals who seek redress on an issue of great personal importance unless they can point to some greater loss or wider societal ill.

Should Mr Grant have had the right at any expense to challenge the Sun in Court? It is difficult to say. Should the Shermans settle for less in seeking to remedy their lost trip of a lifetime? Again, the Justices seem to raise a valid concern of proportionality. However, in the rush to ensure that Court resources are used proportionately, and in the push towards ADR, an individual’s right to have a Court rule on their claim cannot be undervalued or become the right only of those with high value disputes.