Japanese Knotweed case signals flexibility in ADR

Latest Japanese knotweed ruling suggests greater flexibility in alternative dispute resolution

In a decision in December 2023, the Court of Appeal ruled in the case of Churchill v Merthyr Tydfil County Borough Council that the courts can stay proceedings to order parties in dispute to engage in alternative dispute resolution (ADR).

The case concerned a property owned by Mr Churchill. The property is situated adjacent to land owned by Merthyr Tydfil County Borough Council. Mr Churchill claimed that the council's land had Japanese knotweed which was encroaching and causing damage to his property. Mr Churchill served the council with a letter of claim rather than use its Corporate Complaints Procedure. Upon service of the claim, the council applied for a stay of the proceedings on the basis that Mr Churchill had not engaged in ADR by way of the Complaints Procedure.

The judge initially, dismissed the application for a stay, on the basis that he felt bound by the principle established in Halsey v Milton Keynes General which states that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”

Bound by Hasley

The issue was whether the principle in Halsey was a necessary part of the court’s reasoning in deciding the original Halsey case. The court held that it was not, reasoning that Halsey concerned the issue of costs sanctions and not whether the parties should be ordered to participate in ADR. As such, it was found that the judge at first instance was not bound by it.

The court’s authority

Mr Churchill argued that the court did not have the power to stay the proceedings for non-compliance with the Complaints Procedure. The reason, he submitted, was that the Complaints Procedure was unsatisfactory and a disproportionate restriction on his right of access to the court.

The court considered the balance to be struck between not impairing a party’s right to proceed to a judicial hearing by staying proceedings for ADR, and fair settlement of the dispute at a reasonable cost. It held that the court has the power and discretion to control its own proceedings, including to stay proceedings in order to allow the parties to engage in ADR.

Exercising powers

In his judgment, the Master of the Rolls, Sir Geoffrey Vos, made clear that it was not the court’s place to set out fixed principles as to what factors will be relevant to determining whether a court should stay proceedings for non-court-based dispute resolution; this should be left to the discretion of the judge dealing with the matter.

Mediation

The court noted that the judge at first instance would likely have granted a stay of proceedings had he been aware he was not bound by the principle in Halsey. While the court considered there to be little point in granting a stay to allow the parties to engage with the Complaints Procedure given the advanced stage the proceedings had reached, it allowed the appeal and suggested that the parties consider using mediation as a form of ADR to resolve the dispute.

Key Points

The Court of Appeal’s ruling further establishes ADR as an integral part of the justice system. The court’s finding that integrating ADR into the civil justice system does not breach Article 6 of the European Convention on Human Rights (the right to a fair trial) is an important development.

While the court has been reticent to lay down strict guidelines as to what may be considered an acceptable form of ADR, this ruling is an indication of the trend towards increasing flexibility in this regard.

Paul Grant is an associate at Signature Litigation

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