A case due to be heard in the Court of Appeal at the end of June could substantially alter the landscape in relation to mediation and other forms of ADR. In Churchill v Merthyr Tydfil CBC the argument is over whether a potential claimant is required to use internal complaints processes before they start using pre-action protocols and commencing court proceedings. This is something that a number of local authorities have recently argued in a range of cases involving claims against them. Michael Gove, the Secretary of State at the DLUHC, has given some support to this view by suggesting that tenants should use internal processes rather than commencing disrepair claims. This is all ostensibly to save costs in dealing with low value claims but it has also been suggested that it is more about saving costs by making it harder for people to make claims and to settle them for lower amounts than they would if they got legal advice and went to court.

In this case the claim was about Japanese Knotweed. The council disputed the claim but have an Internal Complaints Process. They asserted that this process should be followed before any other process on the basis of previous cases which have asserted the importance of using Alternative Dispute Resolution before turning to the Courts. The county court rejected this argument but permitted an appeal straight to the Court of Appeal which is currently expected to hear the matter on 27 June.

There are several key issues here. First is a local authority internal complaints process ADR. It is not what most people would think of as being ADR as it does not involve independent attempts to resolve a dispute, but ADR is a broad church and covers a range of different means of resolving problems. The second big issue is can parties be forced to use ADR. The Court of Appeal has previously suggested that they cannot and to do so would breach the European Convention on Human Rights. But in doing so they relied on a very odd reading of a very old case. Since then, bodies both in the UK and Europe have been clear that it is perfectly lawful to compel parties to use mediation, indeed a number of European countries do just that. However, there is another wrinkle. It is one thing for Parliament to pass legislation requiring the use of ADR, rather another for a local authority to assert that parties making claims against it must do so by using slightly tortured readings of the rules of the court.

All of this makes for an important decision. If the court holds that compulsory mediation is lawful that will give impetus to government court reforms which are already considering precisely this. If the court goes further and holds that local authority internal complaints processes are also forms of ADR that must be used then the landscape of claims against public bodies of all types will be radically altered and this will affect a wide range of parties from landowners complaining about nuisances or planning decisions through to social tenants complaining about disrepair in council-provided housing.