21st November 2023

At root this is a case about Japanese knotweed. However, it has attracted wide attention because it has given the Court of Appeal the opportunity to consider the tangled issue of mandatory alternative dispute resolution (ADR) and to clarify its decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.

It is therefore widely seen as a “test case” on the issue of compulsory ADR/mediation and the Court of Appeal heard the case from 8-10 November 2023 (you can view a recording of the proceedings here). Judgment is being awaited. Given the important principles raised, many parties have obtained permission to intervene including the Law Society and the Bar Council.

The Underlying Case

In August 2021, Mr Churchill started a nuisance claim against Merthyr Tydfil County Borough Council (the Council) seeking damages for an alleged infestation of Japanese knotweed in his garden, which was said to have originated on the Council’s neighbouring land. In February 2022, the Council sought a stay of the proceedings so that the parties could engage in ADR through the use of the Council’s internal complaints procedure. The application was heard by the County Court at Cardiff in May 2022.

The Deputy District Judge dismissed the application, expressly relying on Halsey, stating: “…however, if Halsey remains good law, then this does not get around the difficulty for the Defendant that it would appear that I cannot compel the Claimant to engage in a particular form of ADR.” (DDJ Km Rees at [36]).

As the case raised important points of principle and practice, the Court of Appeal granted permission to directly appeal to the Court of Appeal rather than the County Court.

The Key Issues

There is a question as to whether an internal complaints procedure is properly conceptualised as a form of ADR, but the main issue the Court of Appeal has been asked to consider is whether mandatory ADR / mediation is consistent with Article 6 of the European Convention of Human Rights (the ECHR) and access to justice. Is a requirement on parties to engage in ADR necessarily a breach of Article 6 ECHR? If this is not the case, the Court has been asked to elaborate on the circumstances and/or criteria which would make such a requirement lawful.

Art. 6(1) ECHR confers “an effective right of access to the courts for the determination of ‘civil rights and obligations’” (Airey v Ireland (1979-80) 2 EHRR 305). However, it is well established that this right is not absolute and may be subject to limitations. The Court will therefore have to decide whether, as Lord Dyson put it in Halsey, compulsion of ADR would likely “be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6.” (Dyson LJ (as he then was) at [9])

Interestingly, Lord Dyson has since extrajudicially commented: “what I would now say is that ordering parties to mediate in and of itself does not infringe their Article 6 rights” and that “only in certain circumstances might compulsory mediation impose an unacceptable obstruction on parties’ right of access to the court” (Lord Dyson, Justice: Continuity and Change (Oxford: Hart Publishing, 2018), ‘Halsey 10 Years On – The Decision Revisited’ pp.381–383).

Access to justice is the bedrock of the justice system, rule of law and functioning of a democratic society, as powerfully articulated in Lord Reed in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51:

“68. At the heart of the concept of the rule of law is the idea that society is governed  by law. … Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance  with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.”

At the same time, ADR is an important tool that permits parties to resolve disputes at an early stage and before costs of litigation are incurred or have escalated. If parties are able to resolve their disputes in such a manner, this relieves pressure on the justice system which may lead to an overall reduction in waiting times before cases can be heard. However, a requirement to mediate may lead to a delay in the specific case at hand and particular caution may be needed in cases, such as those involving unrepresented parties or public bodies or where a delay clearly favours one side.

It will be very interesting to see how the Court of Appeal strikes a balance between these competing concerns.

By Anna Hoffmann 


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