James Churchill v Merthyr Tydfil County Borough Council

A court may stay existing proceedings or order parties to participate in a non-court-based dispute resolution process. The order must preserve the essence of the claimant’s right to a judicial hearing and be proportionate to the legitimate aim of resolving the dispute fairly, quickly and at reasonable cost.

The court should exercise this power by reference to all the circumstances, including the nature and practical suitability of the proposed process. No fixed checklist applies. Earlier observations suggesting that compelling unwilling parties to mediate would necessarily violate the right of access to a court were not part of the essential reasoning of that decision.

The claimant brought nuisance proceedings alleging that Japanese knotweed had encroached from neighbouring land owned by the defendant council. The council sought a stay so that the claimant could use its internal complaints procedure.

The County Court dismissed the application because it considered itself bound by Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. It nevertheless found that the claimant and his lawyers had acted unreasonably by failing to use the complaints procedure.

The council appealed. The Court of Appeal considered whether the relevant observations in Halsey were binding, whether a court may compel non-court-based dispute resolution, how that power should be exercised, and whether a stay should now be ordered.

1. Appeal allowed in part. The observations at paragraphs 9–10 of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 were not part of the essential reasoning of that decision. Halsey concerned the costs consequences of unreasonably refusing mediation. Its observations about compelling unwilling parties to mediate were therefore obiter and did not bind the County Court.

2. A court may lawfully stay existing proceedings or order parties to engage in a non-court-based dispute resolution process. The court’s established power to control its procedure, the overriding objective and the procedural rules concerning alternative dispute resolution support that conclusion. R (UNISON) v Lord Chancellor [2017] UKSC 51 concerned an impediment preventing access to a judicial determination. It did not preclude a proportionate delay of existing proceedings to facilitate settlement.

3. The power must be exercised consistently with article 6 of the European Convention on Human Rights. An order must preserve the essence of the claimant’s right to a judicial hearing. It must also pursue, and be proportionate to, the legitimate aim of resolving the dispute fairly, quickly and at reasonable cost.

4. The form and characteristics of the proposed process are relevant to discretion, but not to the existence of the power. Potential considerations include representation, effectiveness, delay, limitation, cost, prospects of settlement, inequalities between the parties and the reasons for opposition. The court should not use a fixed checklist or score sheet. It must assess the suitability of the process in all the circumstances and in accordance with the overriding objective.

5. No stay was ordered. Although the County Court would probably have granted one but for its understanding of Halsey, circumstances had moved on. The council’s procedure was principally pre-action in nature and appeared directed towards complaints about council services rather than an entrenched private law dispute between neighbours. A short stay would now achieve nothing, and a mandatory injunction permitting treatment of the knotweed had neither been sought nor argued.

Birss LJ and Carr LCJ agreed with the judgment of Sir Geoffrey Vos MR.

1. Court of Appeal (Civil Division): The appeal was allowed in part. The court held that the County Court was not bound by the relevant observations in Halsey and confirmed the power to order non-court-based dispute resolution, but declined to order a stay.
2. County Court at Merthyr Tydfil: Deputy District Judge Kempton Rees dismissed the council’s stay application on 12 May 2022 because he considered himself bound by Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. He also found that the claimant and his lawyers had acted unreasonably by failing to use the council’s complaints procedure.