“The Direction of Travel” for Mediation and ADR in the Courts of England and Wales.

Today, in the Court of Appeal (Civil Division), Lady Chief Justice, Master of the Rolls and Lord Justice Biras commenced the hearing of a potentially pivotal case in the determination of the role of mediation as a mandated precursor to, or alternative to, court litigation. This case is so important that leave to intervene has been given to the Bar Council, Law Society, mediation bodies and various other interested parties. The case comes at a time when the Ministry of Justice is also considering the introduction of mandatory mediation as a precursor to small claims litigation. In the words of the Master of the Rolls, “What we say will set a direction of travel for other cases and other situations. We need to address the issue as to what is the Court’s power if a party is behaving unreasonably”.

The “knotty” case of Churchill (claimant/respondent) v Merthyr Tydfil County Borough Council (defendant/appellant) involves the failure of a claimant to engage in an internal complaints procedure offered by his local council who owned land adjoining the claimant’s property. Mr Churchill discovered the invasive plant, Japanese Knotweed, on his land, but instead of informally contacting the council, instructed a law firm to send a letter of claim. The council wanted to use its internal complaints procedure and made an open offer to clear the Knotweed free of charge, but Mr Churchill refused and issued county court proceedings.

The District Judge at first instance felt bound by the comments made by Dyson LJ in Halsey v Milton Keynes General NHS Trust 2004 and so to address whether those comments were obiter or law, granted the council leave to appeal. With combined court costs estimated at £200,000 in respect of a £25,000 claim for Knotweed clearance, the council want proceedings stayed for Mr Churchill to reconsider.

The Bar Council, as intervenor on the issue of mandatory ADR, stated “Halsey has been a road block to the development of mediation as a tool for resolving disputes, but a road block of uncertain proportions because of lingering doubts as to whether it is obiter or not”. Mr Churchill’s legal team argue that Halsey supports Mr Churchill in his refusal to engage in the internal complaints process, which is perceived loosely as a form of alternative dispute resolution. They assert that a requirement that Mr Churchill engage in ADR is contrary to his Article 6 ECHR right to a fair and public hearing.

The case of Halsey, through Dyson LJ’s words concerning mediation, stood contrary to a series of earlier cases where mediation had been ordered by the court during the course of litigation. It is the intention of the appellant and intervenors to persuade the Court of Appeal that not only is Dyson LJ’s comments concerning Article 6 obiter, but also wrong at law with reference to Strasbourg jurisprudence and common law. The hearing of this case is ongoing.



Judith Hogarth

Faiza Alleg Dolivet

Elizabeth Bilton

Byron Tyson

Kevin Smyth

Neil Boothroyd

Ann Allen Encontre

Helen Johnson

Appointment service required:

Tim Carter

Sheila Gooderham