In what is being called a landmark judgment, the Court of Appeal has handed down its judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The case, stemming from the criticisms by the Claimant over the Defendant’s approach to alternative dispute resolution when addressing his complaint of an alleged failure by the Council to prevent Japanese Knotweed from spreading onto the Claimant’s land, has reopened the contentious issue of court-mandated engagement.  

Previously, in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 567, Dyson LJ’s remarks were widely interpreted to suggest that forcing unwilling parties to engage in mediation was a breach of their Article 6 right to have access to the courts. There then followed a litany of inconsistent decisions debating the effect to which Halsey was binding or whether the comments were obiter in nature.  

In a unanimous decision, the Bench concluded that while the principles in Halsey remain influential, they were merely obiter comments and not an absolute bind on the Court’s discretion.

Instead, Sir Geoffrey Vos MR said:

“The court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.” 

The decision in Churchill has been hailed by ADR providers, the Law Society of England and Wales, the Bar Council and practitioners alike, praising what is seen as the Court’s endorsement of the push to make ADR compulsory in an effort to help reduce the number of hearings going through to trial, tackle backlogs and generally ease the ever-growing strain on the Court system.  

The Court of Appeal sought to provide an important reminder of the system’s ability to regulate its own processes and clarifies its stance on whether ADR is essential or optional. However, the extent to which this regulation operates in practice remains unclear. The Court were reluctant to lay down rules or considerations prescribing when measures should be applied.  

However, despite clarifying the issue of whether compulsory ADR interferes with a person’s ECHR rights, questions remain as to the use of ADR generally. What forms can ADR take? Do internal complaints procedures count? To what extent can the court stay proceedings of their own initiative for ADR to take place? What counts as engagement? Will unreasonably refusing to engage in ADR lead to any consequences, whether in costs or otherwise?

Whether any guidance is given on these practical steps is yet to be seen, but it appears from this judgment to be unlikely that further Judicial input will soon be forthcoming.