Court Of Appeal Decide – Judges Can Lawfully Order Parties To Engage In ADR

James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416

Background

The Claimant (Mr Churchill) purchased his property in 2015. He brought a nuisance claim against the Council, which owned the land bordering the Claimant’s property. Mr Churchill claims that since 2016, Japanese knotweed from the Council’s land has been encroaching on his land, causing damage to his garden and a loss of value and enjoyment to his land. The damages sought were for £43,000.

The Council’s position was that Mr Churchill failed to comply with their complaint’s procedure. They informed him they would apply for an order to stay the proceedings for three months if he were to issue proceedings without going through their internal procedure for complaints. Mr Churchill ignored the Council’s plea and issued proceedings, so the Council applied to stay the proceedings. However, the Council’s application was dismissed with reference to Dyson LJ’s comments in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576.

Dyson LJ stated that it would be an “unacceptable constraint on the right of access to the court and, therefore, a violation of article 6” if an unwilling party was compelled to engage in alternative dispute resolution (ADR). The District Judge held that he was bound to follow Dyson’s commentary in this case. However, the Court of Appeal disagreed and decided that Dyson’s statement did not bind the Judge to dismiss the Council’s application for a stay of proceedings, as the comments were not part of the essential reasoning in Halsey.

The Court of Appeal held that a Court could lawfully stay proceedings for, or order, the parties to engage in ADR, so long as it was not “disproportionately onerous” and did not prevent their ability to have access to the Courts. The Court wanted to also highlight that it would be left to the Judge’s discretion in each case as to whether an order to engage in ADR would be appropriate.

Comment

ADR allows parties the chance to settle their disputes out of court and not incur the costs or risks of a final hearing.

A Court can lawfully order parties who are unwilling to engage with one another to settle the dispute quickly, fairly and at a reasonable cost. The Court of Appeal emphasised the huge benefit for parties to settle their differences swiftly and relatively inexpensively. Parties initially unwilling can find that positive engagement through non-Court dispute resolution can result in success.

Although the Court of Appeal declined to order the stay in this case, they suggested the parties agree on a temporary stay and engage in ADR to resolve the dispute between them.