Churchill v Merthyr Tydfil County Borough Council (2023) EWCA Civ 1416
The Court of Appeal handed down its judgment in the Churchill matter on 29 November 2023. This was a private law nuisance claim by Mr Churchill against the local authority, Merthyr Tydfil County Borough Council (Merthyr) the owner of the property to the East of his, for encroachment of Japanese knotweed onto his land. The appeal concerned whether a court could order a stay for non-court based alternative dispute resolution (ADR).
In the first instance, Merthyr applied to stay the claim for the matter to be dealt with through the council’s in-house complaints procedure. The first instance judge declined to grant an opposed stay following the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, where the imposition of mediation was an unacceptable obstruction on a party’s right of access to the courts. Merthyr appealed the refusal of a stay, seeking findings that:
- Was the judge right to think that Halsey bound him to dismiss the council's application? This involves a consideration of whether the passages in Halsey relied upon by the judge were part of the main reasoning of that decision.
- If not, can the court lawfully stay proceedings for, or order, the parties to engage in an ADR process?
- If so, how should the court decide whether to stay the proceedings for, or order, the parties to engage in an ADR process? This involves a consideration of the relevance of the kind of ADR process being considered.
- Should the judge have acceded to the Council's application to stay these proceedings to allow Mr Churchill to pursue a complaint under the council's internal complaints procedure?
The Court of Appeal, through Sir Geoffrey Vos, Master of the Rolls, set aside Halsey finding the relevant passages obiter (and expressing a dislike of the use of Latin in judgments) and so judges are not bound by the decision and could order ADR, so long as access to the courts was not blocked or unreasonably delayed, therefore in compliance with Article 6 of the European Convention on Human Rights – right to a fair trial.
Other points of note from the decision are whether an internal complaints procedure could be regarded as ADR or not. The court refused to be drawn into answering this question, nonetheless providing the following comments and directing any decision to be reached on the facts of a case, at paragraph 64:
In this context, I should mention that we heard some argument about whether an internal complaints procedure of the kind offered by the Council is properly to be regarded as a species of ADR at all. That definitional issue seems to me to be academic. The court can stay proceedings for negotiation between the parties, mediation, early neutral evaluation or any other process that has a prospect of allowing the parties to resolve their dispute. The merits and demerits of the process suggested will need to be considered by the court in each case.
The decision is one ACSO welcomes as a way of ensuring the courts have sufficient power to be able to direct parties towards ADR as a means of concluding a dispute. Our ADR Working Group will continue to promote the benefits of ADR alongside existing avenues of redress, gathering further data and insights to support informed policymaking and connecting stakeholders with a common interest in the subject.