The Knotty Problem of Compulsory Alternative Dispute Resolution (‘ADR’)

As a result of a recent decision in a case involving Japanese knotweed, the Court of Appeal will later this year decide whether litigants in low value claims should be forced to exhaust internal complaints procedures before even engaging with the relevant pre-action protocols, e.g. ‘the Practice Direction – Pre-action Conduct and Protocols’.

The claimant, Mr Churchill claimed that Japanese knotweed had spread to his garden from adjoining public land owned by Merthyr Tydfil CBC (‘the Council’).  Upon receiving a letter from Mr Churchill’s solicitors, the council argued that instead of instructing lawyers, he should have used their internal complaints procedure.  They also proposed that their specialist team should treat the knotweed in Mr Churchill’s garden for free although the treatment was actually expected to cost the Council approximately £250 overall.  There was also the question of whether there was any reduction in the value of Mr Churchill’s  house by virtue of the presence of knotweed.

Invitations to engage in ADR by the Council were apparently refused repeatedly by Mr Churchill, who also refused to allow the Council to spray his garden.

When Mr Churchill issued proceedings, the Council applied for a stay for three months to enable alternative dispute resolution by means of  their internal complaints procedure.  Although the deputy district judge found that Mr Churchill’s solicitors had acted unreasonably and contrary to the spirit and letter of the Practice Direction – Pre Action Conduct and Protocols, they found that precedent in particular, the long-established case of Halsey -v- Milton Keynes NHS, prevented the court from staying the proceedings without the consent of Mr Churchill.

It is settled law that an unreasonable refusal to participate in mediation can result in cost penalties as can silence in the face of an offer to mediate or agreeing to mediate but then dragging your feet or imposing unreasonable conditions.

In Autumn 2021, the Civil Justice Council published a report on Alternative Dispute Resolution concluding that mandatory ADR was not incompatible with Article 6 of the European Convention on Human Rights.

Although it would appear that there is some judicial enthusiasm for mandatory mediation, in my discussions with other experienced mediators most, if not all, are against the idea.  Conducting a mediation might be compared with hosting a party for guests most of whom would prefer not to have been invited, and a point worth making at the start of any mediation is that all of the parties have voluntarily decided to attend.

The latest battle in Mr Churchill’s war against the Council was due to be heard in the Court of Appeal on 27^th/28^th June but it has now been re-listed for hearing between October and December this year because a number of interested parties have applied to intervene in the case which could clearly have far reaching implications.  Guests to that party include:

• The Civil Mediation Council
• The Centre for Effective Dispute Resolution
• The General Council of the Bar of England
• The Law Society

Paradoxically of course, in view of the expanded nature of the case, it may be one of those limited situations which is extremely difficult, if not impossible, to resolve by mediation!

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