James Churchill v Merthyr Tydfil CBC – a knotty problem for the Court of Appeal?

Merthyr Tydfil lies in the heart of the Welsh Valleys between Swansea and the hills known as Bannau Brycheiniog (formerly the Brecon Beacons). It is an idyllic location with the magnificent Victorian Cefn Coed viaduct stretching across the valley which gently nestles the town. Is this bucolic scene about to be battered by high stakes litigation played out before the Court of Appeal, no less?

It’s a long way from the Valleys of South Wales to the Royal Courts of Justice on the Strand. How did the claimant, James Churchill, find himself in such un-bucolic surroundings?

South Wales is a hotbed of infestation by the notoriously irremovable Japanese knotweed. The Royal Horticultural Society explains that knotweed ‘spreads rapidly’ and that ‘Eradication requires determination as it is very hard to remove by hand or eradicate with chemicals.’

The details of the case

When Mr Churchill bought his property in 2015, he never dreamt he would become the subject of such an irreducible infestation. Yet by 2020 his property was under virulent attack from his next-door neighbour’s land, a property owned by Merthyr Tydfil County Borough Council. A Letter of Claim sent to the Council by his solicitors on 29 October 2021 finally drew a reply on 22 January 2022, two months later, in which the Council urged Mr Churchill to avail himself of their internal complaints process (ICP). Why the Council did not treat the Letter of Claim as a complaint is not clear. Sadly, this complaint was not resolved and proceedings issued in August 2021 seeking damages for nuisance included the cost of eradication.

On 15 February 2022, the Council issued an application for a 3-month stay to allow the parties to engage in alternative dispute resolution (ADR) using the ICP. One question the court might address is whether an ICP administered by one of the parties to a dispute could ever be considered a form of (A)DR. Especially as research undertaken by DisputesEfiling shows such ICPs take months if not years to resolve.

On 24 February 2022, Mr Churchill cross-applied to strike out those parts of the defence relating to the Council’s attempts to persuade Mr Churchill to engage with the ICP and the response by Mr Churchill.

At first instance District Judge Kempton-Rees, sitting at Swansea County Court, handed down a reserved judgment on 12 May 2002 in which he dismissed both applications holding, arguably obiter, while pre-action negotiation could be a form of (A)DR the court could not order Mr Churchill to pursue the ICP route because the decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 was binding on him and, thus, following the now famous/infamous obiter remarks in Halsey, he could not compel (A)DR to take place.

Where are we now?

The decision found its way via a leapfrog appeal to the Court of Appeal last year. Refusing an application for expedition Andrews, LJ held (on 21 November 2022) that the appeal should be heard in early course because it, “raises an extremely important issue relating to access to justice.” That issue, she explained, concerns: “[…] whether a claimant who unreasonably refuses to engage in ADR in breach of the requirements of the Practice Direction (Pre-Action Conduct and Protocols) can be precluded from bringing or advancing a claim in court.”

Issues such as what is unreasonable refusal and what is (A)DR leap to mind. Whether the court chooses to take these on remains to be seen.

Similar cases in which the Council is involved are stayed, while we understand informal stays have been agreed in many other cases around the country. 

All of this is before the Court of Appeal on 28 June 2023 (floating) for six hours. Will the court follow the conclusion of the Civil Justice Council’s report on compulsory ADR: ‘[…] appropriate forms of compulsory ADR, where a return to the normal adjudicative process is always available, are capable of overcoming the objections voiced in the case law and elsewhere and could be introduced.’

Not long to wait now. I’m booking my seat! 

As of 13 June 2023 the hearing on 28 June has been vacated as only one day was allowed and the time estimate is two days. I expect the hearing to relisted in October or November 2023.

Tony Guise is a director at DisputesEfiling
disputesefiling.com