Landmark Chambers barristers appear in Court of Appeal in landmark test case on compulsory ADR

Japanese knotweed infestation Canva

In an appeal of critical importance, the Court of Appeal is being asked to consider whether the courts can stay proceedings and require parties to engage in ADR as a condition of being able to continue their claims.

In Churchill v Merthyr Tydfill County Borough Council, Mr Churchill sued the Council for damages in nuisance (of up to £42,840) in respect of an alleged Japanese knotweed infestation in his garden, said to have originated from the Council’s land. The Council took objection to Mr Churchill’s failure to raise any complaint with it prior to sending his letter before claim and, ahead of the first costs and case management conference, made an application for an order staying the proceedings for three months for Mr Churchill to make use of its internal complaints procedure. The Council’s submission was that, since the Claimant had unreasonably refused to engage with its internal complaints procedure, the claim amounted to an abuse.

The Deputy District Judge found that he was bound by the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust [2004] 1 W.L.R. 3002 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”. He dismissed the Application. The Council obtained permission for a ‘leapfrog’ appeal to the Court of Appeal. The Housing Law Practitioners’ Association and Law Society obtained permission to intervene by way of written and oral submissions.

Opposing the appeal, 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 (i) notice has been given to a landlord of a breach, and (ii) the landlord has failed to remedy its breach within a reasonable time. 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. It would 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The Law Society’s position is that Halsey no longer represents good law such that compelling mediation would not, of itself, automatically violate a party’s article 6 rights; whether in fact it would do so would depend on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: (i) the sanction imposed for in question; (ii) the cost of the process; (iii) the stage at which the order / requirement is imposed; (iv) the nature of the underlying dispute; (v) the financial resources of the parties and whether they are legally represented; and (vi) the delay caused.

The appeal is being heard over three days before the Lord Chief Justice, the Master of the Rolls and Lord Justice Birss.

Rupert Cohen acts for and is instructed by the Law Society.

Justin Bates and Tom Morris act for the Housing Law Practitioners’ Association, instructed, on behalf of HLPA, by Giles Peaker of Anthony Gold Solicitors.

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