In August 2021 Mr Churchill issued a claim against the Council in private nuisance for damages resulting from the encroachment of Japanese Knotweed from the Council’s adjoining land, together with an injunction to eradicate the plant. The Council, without prejudice to liability, wished to instigate an internal complaints procedure to treat the knotweed but this was rejected by Mr Churchill.

At the first hearing of the claim, the Council applied for a stay of proceedings to complete the internal complaints process. Whilst the judge did find Mr Churchills behaviour to be unreasonable in his refusal to mediate, the claim was not stayed as the court, by virtue of a passage in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, which suggested that it was unlawful for courts to compel mediation, did not have the power to do so. The Judge did indicate that, but for Halsey, he would have granted the application for a stay.

The Council appealed and successfully leapfrogged the appeal to the Court of Appeal who invited interveners. The interveners included the Law Society, the Social Housing Law Association, the Housing Law Practitioners Association, The Chartered Institute of Arbitrators, Bar Council, the Civil Mediation Council, and the Centre for Effective Dispute Resolution.

The questions before the court were as follows.

1. Whether the Judge was right to not order a stay because of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.
2. Whether the court can lawfully stay a claim to allow the parties to engage in a non-court process.
3. What factors the court should consider when deciding whether to order such a stay
4. Whether the Judge in the instant case should have acceded to the application to stay the claim to compel Mr Churchill to engage in the internal complaints process.

A decision has now been reached. It was confirmed, on 29 November 23, that the decision in Halsey is indeed obiter (that means it was a mere comment and not the actual decision) and that the court does have the power to compel parties to engage in ADR. The more difficult question is when and how that power should be exercised, which the Court of Appeal did not want to lay down any prescriptive rules on. Instead, the court said this at paragraph 66 of its judgment:

“I do not believe that the court can or should lay down fixed principles as to what will be relevant to determining those questions. The matters mentioned by the Bar Council and Mr Churchill, and by the Court of Appeal in Halsey are likely to have some relevance. But other factors too may be relevant depending on all the circumstances. It would be undesirable to provide a checklist or a score sheet for judges to operate. They will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy, and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.”

Whilst no checklist, the court will consider case-specific and party-specific factors including costs and delay caused from the process.

This decision seems to be in keeping with the Governments general ethos towards ADR. As many will know, mediation is mandatory for small claims matters worth £10,000 or less; today’s decision potentially widens the scope for all matters of all sizes. Master of the rolls Sir Geoffrey Vos, in a report in July 2021, concluded that mandatory ADR did not breach Article 6 of the European Convention of Human Rights.

The problems with this decision are a few-fold.

Firstly, if parties don’t have a genuine interest to mediate, settlement will not be achieved, and meditation will simply be an additional later of costs, although, guidance from the Court appeal suggests that this will be considered factor.

Secondly, if a decision is reached, will it have been a fair deal particularly where the parties are not matched in power, experience, and legal representation -arguably, the same reasoning can be applied for court litigation.

Thirdly, and perhaps most notably, the form of ADR offered in this case was an internal complaints procedure and not therefore an independent mediation. It is therefore questionable as to whether this is a fair forum. The court of appeal’s resistance being prescriptive means that by this logic, ombudsman schemes could also be deemed to be appropriate forms of ADR.

The prevailing theme coming from today’s decision is that the courts are viewing ADR more as an integral part of the process, rather than an alternative form of resolution. And that free reign for judges will inevitably open the doors for more satellite litigation to occur as to what forms of ADR can be ordered and when.

However, it is entirely possible that this case will be back before the Court of Appeal. The Court of Appeal has bounced the decision back to the lower court indicating that it can compel the parties to engage in ADR. But that does not answer the question of whether the court should do so. It is perfectly possible that a decision to compel ADR in this case will then be appealed itself, potentially returning the matter to the Court of Appeal.