Should Alternative Dispute Resolution be mandatory? Or, alternatively, are you entitled to “your day in Court”

At AST Hampsons we consider there to be various advantages to the parties engaging in Alternative Dispute Resolution (ADR) such as mediation arbitration and joint settlement meetings. This is a view largely taken by the Courts. It can be argued that since Lord Woolf’s review of the civil justice system in 1996 the Courts have stressed time and again that litigation be treated as a last resort. After all litigation is often a slow, complex and costly process.

Despite these efforts, the Courts have never ruled that engaging in ADR should be compulsory. In the 2004 case of Halsey v Milton Keynes General NHS Trust, the Court of Appeal ruled that forcing the parties to mediate “would be to impose an unacceptable obstruction on their right of access to the court” – a breach of Article 6 under the European Convention on Human Rights (ECHR).

The question of compulsory ADR is now being revisited by the Court of Appeal in Churchill v Merthyr Tydfil Borough Council – a claim relating to Japanese Knotweed against a local authority. When rejecting the claim, the Defendant referred the Claimant to their internal complaints process. The Defendant subsequently argued that this process, which is argued by the Council to be a form of ADR, should have been followed prior to the commencement of legal action. This argument was rejected by the County Court but permission was allowed for the appeal to be heard in the Court of Appeal.

If the appeal in Churchill succeeds then the 19-year precedent of Halsey will be reversed. It could well affect all forms of civil litigation – no matter the dispute. It is no surprise then that a number of bodies have intervened in the case. Just recently the Law Society Gazette has published details of the Civil Mediation Council’s, the Chartered Institute of Arbitrators’ (Ciarb) and the Centre of Effective Dispute Resolution’s (CEDR) involvement.

The case of Churchill is due to be decided at a future date.

At AST Hampsons we promote ADR as a cost-effective and quicker way to resolve disputes. For more information, contact Giselle or Mason.

Tuesday, 5 September, 2023 - 14:54