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Tied up in knots - A case of dispute resolution


The Court of Appeal has handed down judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 on whether a court can compel the parties to engage in a ‘non-court based dispute resolution process’.

The matter involved the alleged spread of Japanese Knotweed from the defendant’s land to the claimant’s property, appropriating a continuing nuisance. The defendant applied for a stay in proceedings so that the claimant could follow the local authority defendant’s internal complaints procedure first.

At first instance, the County Court dismissed the application, referring to the case of Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576 where it was stated that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”. Relying on Halsey, the judge decided they did not have jurisdiction to order a stay in proceedings but did make a finding that the claimant had acted unreasonably in not following the internal complaints procedure.

The Court of Appeal granted permission for the decision to be appealed directly to the Court of Appeal.

The Court of Appeal found that the courts do have the power to compel parties to engage in compulsory dispute resolution albeit it did not set out exactly what guidelines would need to be applied to make that decision. The court stated that different courts will be able to consider the merits of different forms of ADR relating to the facts of each individual case and therefore “it would be undesirable to provide a checklist or a score sheet for judges to operate.” The court did, however, include a list of such factors which may include:

  • The type of dispute resolution;
  • Whether the parties are both legally represented;
  • The costs;
  • The urgency of the case;
  • The proportionality and reasonableness of the method of dispute resolution;
  • Whether there is a realistic prospect of dispute resolution.

The court did not comment on the merits of the defendants’ internal complaints procedure as a method of dispute resolution as that point had not been appealed as part of this appeal. The Judge did however say:

 “In these circumstances, whilst it is obvious that the judge would have stayed the claim back in May 2022, had he been able to see this judgment, things have moved on. There is little point in doing so now, since nothing will be gained if a one-month stay were granted as the Council seeks. This court cannot properly grant a mandatory injunction against Mr Churchill requiring him to allow the Council to treat his knotweed. That has been neither formally sought nor argued.”

This case provides an important lesson to practitioners in respect of their approach to dispute resolution. Parties who wish to avoid engaging in dispute resolution will have to be mindful that courts have the power to compel certain types of dispute resolution. They will have to take care only to refuse in cases where it is reasonable to do so.

Furthermore, should any party wish to make an application requesting the court compel dispute resolution, it will have to be mindful of this judgment. The request will need to be reasonable and proportionate in the circumstances of the case where dispute resolution has a reasonable prospect of success.

To find out more about this topic, please get in touch.


Matthew Kirk, Associate, Property Risks & Coverage

Email: mkirk@keoghs.co.uk


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