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Courts have the power to order compulsory ADR – Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416. Decision considered by Isabel Hitching KC member of the Civil Procedure Rule Committee.

Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416

In a judgment handed down on 29 November 2023 the Court of Appeal, emphasising the courts’ power to govern its own procedure under the Civil Procedure Rules, held that they have the power to stay proceedings for or order that parties engage in alternative dispute resolution.

In delivering the leading judgment, with which the Lady Chief Justice and Birss LJ, the Deputy Head of Civil Justice, agreed, the Master of the Rolls held:

  1. It was not a necessary part of the reasoning that led to the decision in Halsey that a court did not have the power to stay proceedings for, or order, the parties to engage in an alternative dispute resolution process. Any comments that suggested otherwise were obiter rather than part of the ratio.  The issue had not been directly before the court in Halsey.

The Court of Appeal, considering the issue in this case where it did arise directly further held:

  1. A court did have the power to stay proceedings for, or order, the parties to engage in an alternative dispute resolution process. The Master of the Rolls analysed domestic case law, cases from the European Court of Human Rights and pre-Brexit cases from the Court of Justice of the European Union.  He held that the existence of such a power was not a contravention of Article 6 of the European Convention on Human Rights (the right to a fair trial).

How such a power should be exercised in an individual case to ensure that a separate question to be determined on the facts of each case including the nature of the alternative dispute resolution process proposed.  In relation to that issue:

  1. The Master of the Rolls declined to lay down fixed principles, or provide a ‘checklist or a score sheet for judges to operate’. He noted factors that have been considered in other cases but declined to set out a closed list saying that other factors may be relevant ‘depending on all the circumstances’.  The Master of the Rolls stated that judges were well qualified to decide whether a particular process was appropriate in particular circumstances for bringing about a fair, speedy and cost-effective solution to the dispute in accordance with the overriding objective stated in the Civil Procedure Rules.

The decision is an important reminder of the courts’ ability to regulate their own processes and provides the clarity needed that this involves ordering engagement with alternative dispute resolution procedures if appropriate.

Considering the circumstances of the case before it:

The Court of Appeal held that it was obvious that a stay would have been granted in this case had the judge ‘been able to see this judgment’.   However the issue for the Court was what was an appropriate order at the date the matter was before it and given the limited bases of appeal which did not challenge certain of the judge’s findings as to Mr Churchill’s behaviour.  The Court therefore did not make a stay in the terms sought, ordering compliance with the Council’s own complaints procedure, but indicated a ‘provisional view’ that the parties ought to consider whether they could agree a stay for mediation or ‘some other form of non-court-based adjudication’.

Isabel Hitching KC is a member of the Civil Procedure Rule Committee, chaired by Birss LJ on behalf of the Master of the Rolls.  She has recently been appointed chair of the sub-committee focussing on simplifying the Civil Procedure Rules.  She is editor of Emden on Construction Law and authors the chapter on Alternative Dispute Resolution.

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