Vos: Dyson’s comments were obiter
Courts can order parties to engage in alternative dispute resolution (ADR), so long as it does not restrict their ability to proceed to a judicial hearing, the Court of Appeal ruled today.
In its much-anticipated consideration of the 2004 Halsey ruling, the three top civil judges in the country said such a move must also be “proportionate” to settling the dispute fairly, quickly and at reasonable cost.
Giving the unanimous decision, the Master of the Rolls, Sir Geoffrey Vos, said that the comment of Lord Justice Dyson in Halsey – “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” – was obiter and that the deputy district judge in the present case was wrong to consider himself bound by it.
The Lady Chief Justice Lady Carr and deputy head of civil justice Lord Justice Birss concurred with the MR.
The key passage said: “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.”
Churchill v Merthyr Tydfill County Borough Council concerned 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.
Deputy District Judge Kempton Rees found that he was bound by Halsey and dismissed the application. The case was then leapfrogged to the Court of Appeal, where several bodies intervened.
Vos MR said the courts had the power to stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process, an approach that he noted was supported by the Civil Justice Council’s June 2021 report on compulsory ADR (which he commissioned).
This 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.
In Halsey, the Court of Appeal said that, even if the court had jurisdiction to order unwilling parties to refer their disputes to mediation, it was “difficult to conceive of circumstances in which it would be appropriate to exercise [that jurisdiction]”.
Vos MR commented: “I would not go so far. Experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly. Even with initially unwilling parties, mediation can often be successful…
“Whether the court should order or facilitate any particular method of non-court-based dispute resolution in a particular case is a matter of the court’s discretion, to which many factors will be relevant.”
There was argument at the hearing about whether the council’s internal complaints procedure was actually ADR at all.
“That definitional issue seems to me to be academic,” the MR said. “The court can stay proceedings for negotiation between the parties, mediation, early neutral evaluation or any other process that has a prospect of allowing the parties to resolve their dispute.
“The merits and demerits of the process suggested will need to be considered by the court in each case.”
But he declined to lay down fixed principles as to what will be relevant to determining this.
“It would be undesirable to provide a checklist or a score sheet for judges to operate. They will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.”
On the actual case, Vos MR said that, whilst it was “obvious” that the judge would have stayed the claim had he been able to see this judgment, matters had since moved on.
He declined to order a stay and instead said he would “allow the merits and demerits of this particular internal complaints procedure to be resolved on another occasion”.
He encouraged the parties to consider “whether they can agree to a temporary stay for mediation or some other form of non-court-based adjudication”.
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