Headlines are proclaiming Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 as a landmark decision on the English court’s embrace of ADR. Continuing to walk the tightrope between the obvious benefits of ADR and the right of access to court guaranteed by the European Convention of Human Rights and domestic law, the Court of Appeal has decided that courts can order a reluctant party to engage in ADR or stay proceedings to enable ADR to happen.
The ruling, which related to a Council’s non contractual disputes procedure rather than voluntary mediation, is subject to two important caveats: first, any such order must not “impair the very essence of a party’s right to a fair trial “ and, second, must be proportionate to the generally accepted goal of settling disputes fairly, quickly, and at a reasonable cost.
In arriving at this decision the Court has bypassed the comments of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (on the grounds that they were not part of the ratio for the decision in that case) that the court does not have the power to compel a party to mediate against its will.
In the Churchill case the Court of Appeal expressly rejected Mr Churchill’s submission that any barrier to his right of access to justice through the courts required express legislative authority. There is now a discretion to stay or delay proceedings, or to order parties to engage in ADR if there is legitimate reason for doing so.
The Court considered the comment in Halsey that, even if the court had had the jurisdiction to order unwilling parties to refer their disputes to mediation, they found “it difficult to conceive of circumstances in which it would be appropriate to exercise [that jurisdiction]”. The Court found that this comment was obiter dicta and that, in any event, 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.”
Having held that the Court did have a discretion to stay proceedings or to order parties to non-court-based dispute resolution, the Court rejected the idea that it should set out fixed principles as to how this discretion should be exercised. The Master of the Rolls quoted with approval from a Bar Council list of relevant factors:
- the form of ADR
- Whether the parties are legally represented
- Urgency
- Limitation issues
- The costs of ADR
- Realistic prospects of resolution
- Imbalance of bargaining power
- Reasons given for not mediating
But emphasised that these were not exhaustive and said that it “would be undesirable to provide a checklist or score sheet for judges to operate”.
Where does this leave us? It is important to note two things about this case. It related to a internal complaints procedure rather than mediation and the fact that the Court of Appeal ultimately decided not to impose a stay should not be interpreted as suggesting that a stay was not appropriate in these circumstances – the issue of the stay turned very much on its facts and that, in this instance, nothing would have been gained if the Court had granted the stay sought by the Council, least of all because of the passage of time.
However, this judgment makes clear the direction of travel and clarifies the powers of the Court, powers which are already being exercised, as the new rules to compel mediation in Employment Tribunals and Small Claims demonstrate.
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