The pressure to allow courts to order compulsory ADR has been building for some while and today change has finally come with the Court of appeal judgment of Sir Geoffrey Vos, MR (with which Lord Justice Birss and Lady Carr, LCJ concurred) in Churchill -v- Merthyr Tydfil County Borough Council. 

The case concerned a claim by Mr Churchill against his local borough council for nuisance seeking damages arising from an invasion of Japanese knotweed into his garden. Upon issue of proceedings the council sought a stay on the basis that it had a complaints procedure that he could use to pursue his claim. At first instance, the court felt although the failure to use the procedure was unreasonable and not in keeping with the spirit of the Pre-Action Conduct and Protocols, it was bound by Halsey -v- Milton Keynes General NHS Trust where Dyson LJ said that requiring parties to mediate would “impose an unacceptable obstruction on their right of access to the court”.

Since the Halsey decision in 2004 the law has been settled: although a court cannot force parties to mediate, it can penalise an unreasonable refusal to do so in costs. The circumstances in which a refusal to mediate has been considered reasonable have been relatively few and far between. 

The Court of Appeal in Churchill considered that the statement of Dyson LJ in Halsey was obiter dicta and not binding on the court in this case. On analysis, it concluded that in light of case law, Article 6 of the European Convention on Human Rights (Right to a fair trial) was not impeded by a court ordered referral to ADR and also having looked at domestic case law, civil procedure legislation and rules, concluded that there was no law preventing a court ordered referral.   

The question of what factors will be taken into account by a court in considering an application for an order that the parties engage in a non-court based dispute resolution process is unresolved. The bar council suggested various factors might be relevant, including: type of ADR proposed; its prospect of success; availability of legal representation; costs of ADR; delay in the case; previous ADR efforts; reasonableness and proportionality of sanction in the event of refusal in the face of an order to go to ADR. The judgment agreed that these and other factors are likely to be relevant but declined to lay down any fixed principles. In the current case, the Court of Appeal declined to order a stay of proceedings in favour of the complaints procedure as sought by the council. 

This is a significant change for civil procedure. However, whether or not the tests applied by the courts on an application for a court ordered referral to ADR will actually move far from the current approach to assessing whether a refusal to mediate was unreasonable or not, remains to be seen.