Mr Churchill brought a claim arising from encroachment of Japanese knotweed from adjoining land owned by local Council. The Council applied for a stay of proceedings to refer the complaint to the Council’s Corporate Complaints Procedure. The district judge ruled that Mr Churchill was acting unreasonably in his refusal, but declined the application because it was contrary to Article 6 rights of access to justice.

The Court of Appeal held:

1. The power to stay to ADR is not in itself a breach of Article 6 and is consistent with the Over-riding Objective in the Civil Procedure Rules to deal with cases justly and at proportionate cost:
2. Provided that the order made (a) does not impair the very essence of the claimant’s right to proceed to a judicial hearing; (b) is for the legitimate aim of settling the
   dispute; and (c) is proportionate (i.e., fair, quick and at reasonable cost).
3. Within these parameters, the Courts now have a broad discretion to order a stay of litigation to any sort of ADR they think appropriate.
4. In this case, the Council had been right in principle to seek a stay, but a stay would not be ordered, because too much had already been done in the litigation.

Comment:

1. Sir Geoffrey Voss MR gave the single judgement of the unanimous Court. He
   described the basis for a stay in several slightly different ways, and concluded “I decline to lay down fixed principles as to what would be relevant to determining the question of a stay of proceedings…”
2. At paragraph 66 he said: “I do not believe that the court can or should lay down fixed principles as to what will be relevant to determining those questions”. Voss remarked that certain submissions by the Bar Council, and the existing principles set out in Halsey v Milton Keynes NHS Trust are likely to have some relevance, but other factors may be relevant, depending all the circumstances. “It would be undesirable to provide a checklist or scoresheet for judges to operate.”
3. The question whether the Court’s newly confirmed authority to order compulsory ADR should be exercised or not, now depends largely upon judicial discretion on the day.
4. What about the unsuccessful party who asks for costs after the trial on the basis that the other side was wrong to refuse to go to ADR? This is still dealt with by Halsey, but may become redundant, if in future the parties will be compelled to mediate in any event.
5. NB, despite the general focus on compulsion, the big issue for the Council, and for the interveners from the Housing Law Practitioners’ Association and the Social Law Housing Association, was the new ability to settle using their own complaints services, thwarting “claims farming” against public bodies, and the huge but avoidable legal fees thus generated.