When is ADR knot ADR? And what power does a court have to order a litigant to mediation?

04 December 2023

Can a court lawfully order the parties to court proceedings to engage in a non-court based resolution process? How about in an internal complaints procedure operated by a local authority?

If the court can make such an order, in what circumstances can it do so?

These were the important issues explored by the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Issues sufficiently important to attract a host of interveners – the Bar Council, Law Society, Civil Mediation Council, Centre for Effective Dispute Resolution, Chartered Institute of Arbitrators, Housing Law Practitioners Association, Social Housing Law Association. The only party missing was the Christmas Party.

Background to the court proceedings

The teacher in you will have spotted the typo-clue in the title question. Japanese knotweed was the uninvited guest at the claimant’s property. He started legal proceedings in  nuisance against the council.

The local authority argued the claimant should have used its internal complaints procedure first.

The claimant took the view the council’s internal complaints procedure was:

  • not designed for such circumstances
  • lacked independence

Besides, Article 6 gave him a right to have his case considered by a court.

The council sought a stay for ADR to be explored.

Halsey v Milton Keynes NHS Trust

The judge of first instance considered a passage in an earlier case of Halsey v Milton Keynes NHS Trust [2004] EWCA was binding authority precluding the court’s power to order a stay when one of the parties is resolutely against ADR, as that would obstruct their right of access to the court.

The Court of Appeal judgment

In a thoughtful judgment analysing previous case law, likely to become a “go to” for lawyers dealing with these issues, the Court of Appeal considered the passage in Halsey was obiter.

The court has power to stay proceedings, to be exercised in an Article 6 compliant way.

The complaints raised by the claimant would go to how that discretion is exercised.

The arguments about whether a council’s internal complaints procedure can properly be regarded as a species of ADR was a “definitional issue” that seemed academic.

The court can stay proceedings for negotiations, mediation, early neutral evaluation, or any other process that has a prospect of allowing the parties to resolve their dispute.

The court declined an invitation by the Bar Council  to lay down fixed principles as to how its discretion should be exercised.

While the ones mentioned by it were likely to be relevant, others may be too. It was undesirable to provide a “checklist or score sheet for judges to operate”. When the court said it was a matter of judicial discretion, it meant it.

More broadly, the judgment was receptive to the role of mediation in helping parties resolve disputes cheaply and quickly.

There was inherent scepticism expressed by the claimant about the independence of the local authority’s internal procedure.

The counterargument is public law bodies are bound by public law principles (eg transparency, fairness, rationality, impartiality).

In my experience of working for public bodies, it is not unusual to see, for example, reports produced by in-house experts to be as favourable as those produced by the other side.