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We shall fight them on the beaches, we shall fight them on the lawns, but must we mediate first?

We shall fight them on the beaches, we shall fight them on the lawns, but must we mediate first?

We shall fight them on the beaches, we shall fight them on the lawns, but must we mediate first?

The important case for mediators of Churchill -v-Merthyr Tydfil County Borough Council was the subject of a Court of Appeal decision last week.   Bearing in mind that the purpose of mediation is to try to avoid disputes getting anywhere near a court hearing, Court of Appeal decisions on mediation cases are something of a rarity.

This appeal was about whether a deputy district judge was bound to follow a statement in an earlier Court of Appeal judgement in the case of Halsey decided as long ago as 2004 to the effect 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”.

Mr Churchill bought a property in Merthyr Tydfil adjoining council owned land.  Mr Churchill claimed that since 2016 Japanese knotweed had encroached from the council’s land onto his own property causing damage to it, a reduction in its value and a loss of enjoyment.

When Mr Churchill’s solicitors sent a letter of claim the council responded by referring to its own corporate complaints procedure stating that if Mr Churchill went ahead and issued proceedings without engaging in that procedure first, the council would apply to the court for a stay which when Mr Churchill’s solicitors duly issued proceedings, the council duly did.   The deputy district judge however refused to grant a stay because he felt bound by the earlier Court of Appeal decision.

Having referred to the Civil Justice Council’s June 2021 report on compulsory alternative dispute resolution (ADR) which expressed the view that “any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights” (right to a fair trial)  the court decided that a court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court based dispute resolution process.

As the court said, “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”.

The court however declined to lay down any fixed principles as to whether mediation should be ordered in particular cases.   Mr Churchill’s lawyers had a number of criticisms of the council’s internal complaints procedure, in particular that: –

  • there was no neutral third party such as a mediator involved
  • no legal advice was available to the claimant
  • there was no settled written procedure
  • the complaints procedure had no statutory backing
  • it was a process that had no fixed timescale in circumstances where the limitation period was not suspended
  • there was no provision for the payment of the claimant’s costs
  • there was no express provision allowing for the payment of compensation in addition to eradicating the knotweed.

Having declined to order a stay of proceedings in this particular case, the court nevertheless expressed the view that “the parties ought to consider whether they can agree to a temporary stay for mediation or some other form of non-court-based adjudication”.

The importance of the case was underlined by the number of interveners which included the Law Society, the Bar Council, and the Civil Mediation Council.

Having decided that the statement above from the case of Halsey was not a necessary part of the Court of Appeal’s decision and was instead “obiter” the Master of the Rolls, who delivered the court’s judgement, said “I prefer to avoid the use of Latin in order to make the court’s judgment as accessible as possible”.  This reminds me of the old Peter Cooke joke that “I could have been a Judge, but I didn’t have the Latin”.   It would now appear that a lack of Latin is no longer a bar to judicial appointment and that the court can order parties to a dispute to mediate.

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