The Court of Appeal will today conclude a three-day hearing on whether the courts can stay proceedings and require parties to engage in ADR as a condition of being able to continue their claims.
The three most senior judges in the civil courts – Lady Chief Justice Lady Carr, Master of the Rolls Sir Geoffrey Vos and deputy head of civil justice Lord Justice Birss – are effectively deciding whether to overturn the Court of Appeal’s 2004 Halsey ruling.
In this, Lord Dyson said “it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6”.
The present court is being asked whether that comment was obiter or otherwise non-binding.
Churchill v Merthyr Tydfill County Borough Council concerns a claim for damages in nuisance of up to £43,000 in respect of an alleged Japanese knotweed infestation in the claimant’s garden, which he says came from the council’s land.
Mr Churchill did not complain to the council before sending a letter before claim and the council sought an order staying the proceedings for three months so that he could go through its internal complaints procedure.
The deputy district judge found that he was bound by Halsey and dismissed the application. The case was then leapfrogged to the Court of Appeal.
There are multiple intervenors: the Housing Law Practitioners Association (HLPA), the Law Society, the Bar Council, the Social Housing Law Association and, jointly, the Civil Mediation Council, Chartered Institute of Arbitrators (Ciarb) and the Centre for Effective Dispute Resolution (CEDR).
According to Landmark Chambers, whose barristers are acting for the first two, the HLPA’s position is that housing condition claims are very different from knotweed and other claims in that in almost all cases the cause of action is not complete until notice has been given to a landlord of a breach, and the landlord has failed to remedy its breach within a reasonable time.
It argues that an internal complaints procedure is not ADR in the true sense: it is not independent and involves a landlord having a second opportunity to do what they have already failed to do.
Indeed, the first question from the bench on the first day of the hearing on Wednesday was exactly whether the procedure was ADR.
The HLPA says it would therefore not be appropriate or just for courts to have the power to compel housing conditions claimants to complete an internal complaints procedure before continuing with a claim in any case, let alone urgent cases requiring interim relief or where the issues are raised in a counterclaim.
The Law Society’s position is that Halsey no longer represents good law such that compelling mediation would not, of itself, automatically violate a party’s article 6 rights.
Whether in fact it would do so would depend on a myriad of case- and party-specific factors including the cost of the process, the stage at which it is imposed, the nature of the underlying dispute and the delay caused.
Law Society president Nick Emmerson said: “The Law Society has strong reservations that this is a suitable case to challenge the outcome of Halsey.
“We believe that ADR that is independent of those involved will frequently be in the best interests of the parties and that compulsory referral will not necessarily be unlawful in all cases. But such a complex and sensitive issue should be considered in the round, rather than in a context where reform is constrained by the individual facts of the case before the court.”
The three ADR providers are only providing a written intervention, describing Halsey as “a thorn in the side of mediation in England and Wales, stopping parties from being referred to mediation in many cases”.
Catherine Dixon, director-general of Ciarb, said: “Halsey has proved hugely problematic for the wider adoption of mediation. It is generally considered to be bad law and this case offers the Court of Appeal the opportunity to clarify that automatically referring parties to mediation does not breach their human rights.”
James South, chief Executive of CEDR, added: “Now is the time for the Court of Appeal to adopt a more permissive approach, and to allow judges, in appropriate cases, to order parties to attend mediation and provide more disputants with access to the benefits that we know mediation can bring them.”
In 2021, a Civil Justice Council expert group commissioned by Sir Geoffrey Vos concluded that any form of compulsory ADR which was “not disproportionately onerous and does not foreclose the parties’ effective access to the court” was lawful.