In November 2023, the Court of Appeal made a decision on Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 (Churchill) and whether the Court can order a stay in proceedings to allow the parties to engage in alternative dispute resolution (ADR).

The case of Churchill involved a claim for damages for nuisance in relation to Japanese Knotweed infestation in the claimant’s garden which came from the Defendant’s council’s land. Mr Churchill did not use internal complaints procedure with the council before making a claim. The Defendants invited Mr Churchill to engage in utilising this before they issued proceedings, and if they did not do so, they would bring this to the Court’s attention. The Claimant did not engage and issued the claim at Court. The defendants sought a stay in proceedings for 3 months, so Mr Churchill could utilise their internal complaints procedure as previously advised.

In the first instance, the Defendants application was denied based on previous case law decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 (Halsey) that prevented the courts from making ADR mandatory. This was due to concerns it would disrupt an individual right to access the Court as per Article 6 of the Human Rights Act. Halsey has since been the leading authority when considering mediation and stay in proceedings. The deputy district judge in that instance recognised the Claimant had not been reasonable and behaved in a way that was contrary to the overriding objective of the pre-action protocol, but they were bound by the Halsey decision.

Upon appeal the application was granted, and the matter was stayed to allow parties to engage in ADR. Sir Geoffrey Vos leading the judgment stated that:

“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.”

Whilst described as a welcome development by many, there will still need to be more clarification and guidance moving forward on when Judges can intervene to encourage ADR. For the time being it appears it will be on a case-by-case basis

What does this mean going forward?

Whilst the recent decision has not made ADR compulsory, it has highlighted the significance for parties in any claim to engage in honest mediation and ADR attempts to try and settle disputes prior to litigation. The overall aim being to save costs and Court time. Sir Vos stated the Court of Appeal decision was supported by a 2021 Civil Justice Council Report on Compulsory ADR which confirmed, “any form of ADR which is not disproportionality onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 right”.

Parties should always consider ADR throughout a claims life and consider when a good time is to settle, as it is likely more cases will follow in the footsteps of Churchill.