“The headline questions in this case are whether a court can lawfully order the parties to court proceedings to engage in a non-court-based dispute resolution process, and, if so, in what circumstances it should do so. […] A question has also arisen as to whether, and in what way, the nature of the non-court-based dispute resolution process should be taken into account by the court.”
Dismissing the claimant’s appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, Sir Geoffrey Vos MR (with whom Birss LJ and Carr LCJ agreed), answered both questions in favour of the Council, holding that the claimant had been unreasonable in failing to engage with the Council’s non-binding complaints procedure and that the court could, in the exercise of its discretion, order parties to engage in an out-of-court disputes resolution procedure where it was appropriate to do so.
Mr Churchill had brought a claim against the local authority for damages to his property caused by Japanese knotweed which had encroached onto it from neighbouring land owned by the Council. In response to his solicitors’ letter before action, the local authority had invited Mr Churchill to use its Corporate Complaints Procedure to resolve the matter, saying that, if Mr Churchill issued proceedings without having done so, it would apply for a stay and for costs. Mr Churchill issued his proceedings against the Council, and the Council duly applied for a stay.
Following indications from the Court of Appeal in Halsey v Milton Keynes General NHS Trust, the deputy district judge who heard the stay application dismissed it, holding that he was bound by Dyson LJ’s statementthat “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
Sir Geoffrey Vos took a different view. He said,
“Experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly. Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method of non-court-based dispute resolution in a particular case is a matter of the court’s discretion, to which many factors will be relevant.”
The approach of the Master of the Rolls favouring ADR, whilst carefully preserving the court’s discretion, will come as no surprise in the light of his support for the 2021 report of the Civil Justice Council, which concluded that compulsory ADR was not an obstruction to a party’s right of access to the courts and therefore not incompatible with art 6 rights under the European Convention on Human Rights. He said:
“I am grateful to Lady Justice Asplin and the working group for this excellent report. They conclude that it is possible, where a court process remains available, lawfully to mandate (alternative) dispute resolution.
As I have said before, ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process; that process should focus on ‘resolution’ rather than ‘dispute’. This report opens the door to a significant shift towards earlier resolution.”
The decision of the Court of Appeal in Churchill v Merthyr Tydfil would seem to be another step on the way to greater pressure, perhaps even compulsion, to use ADR first instead of the courts in the future.