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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 (29 November 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/1416.html Cite as: 215 Con LR 53, [2024] 1 WLR 3827, [2024] Costs LR 249, [2023] EWCA Civ 1416, [2024] 1 FCR 699, [2024] 3 All ER 771, [2024] WLR 3827, [2024] HLR 8, [2024] Env LR 25, [2023] WLR(D) 498 |
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ON APPEAL FROM THE
COUNTY
COURT AT
MERTHYR
TYDFIL
Deputy
District Judge Kempton Rees
Strand, London, WC2A 2LL |
||
B e f o r e :
SIR GEOFFREY
VOS,
MASTER OF THE ROLLS
and
LORD JUSTICE BIRSS
BETWEEN:
____________________
JAMES CHURCHILL | Claimant/Respondent | |
| and | ||
MERTHYR TYDFIL COUNTY BOROUGH COUNCIL | Defendant/Appellant | |
| and | ||
| (1) THE LAW SOCIETY | ||
(2) THE BAR COUNCIL | ||
(3) THE CIVIL MEDIATION COUNCIL | ||
| (4) THE CENTRE FOR EFFECTIVE DISPUTE RESOLUTION | ||
| (5) THE CHARTERED INSTITUTE OF ARBITRATORS | ||
| (6) HOUSING LAW PRACTITIONERS' ASSOCIATION | ||
| (7) THE SOCIAL HOUSING LAW ASSOCIATION | Interveners |
____________________
Merthyr
Tydfil
County
Borough
Council)
for the appellant/defendant (the
Council)
Robert Weir KC and Tom Carter (instructed by McDermott Smith Law Ltd) for the respondent/claimant (Mr
Churchill)
Rupert Cohen (instructed by Law Society Legal Services Team) for the Law Society of England and Wales (the Law Society)
Nicholas
Vineall
KC and Amy Rogers for the Bar
Council
(the Bar
Council)
Edwin Glasgow KC and Kelly Stricklin-Coutinho (instructed by Stewarts) for the Civil Mediation
Council,
Centre for Effective Dispute Resolution, and the Chartered Institute of Arbitrators
Justin Bates and Tom Morris (instructed by Anthony Gold Solicitors LLP) for the Housing Law Practitioners Association
Elizabeth England (instructed by Capsticks LLP) for the Social Housing Law Association
Hearing dates: 8-10 November 2023
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
SIR GEOFFREY
VOS,
MASTER OF THE ROLLS:
Introduction
Churchill
bought a property at 9 Gellifaelog Terrace, Penydarren,
Merthyr
Tydfil,
CF47 9HL (the property) in 2015. The
Council
owns adjoining land (the land) to the east of the property. Mr
Churchill
claims that, since 2016, Japanese knotweed has encroached from the land onto the property causing damage to it, a reduction in its
value
and loss of enjoyment. Mr
Churchill's
solicitors sent the
Council
a letter of claim on 29 October 2020, to which the
Council
responded on 20 January 2021. The
Council's
response queried why Mr
Churchill
had not made use of its Corporate Complaints Procedure.[1] It said that, if Mr
Churchill
were to issue proceedings without having done so, the
Council
would apply to the court for a stay and for costs. Despite that warning, Mr
Churchill
issued proceedings in nuisance against the
Council
in July 2021. On 15 February 2022, the
Council
duly issued the stay application, as it had threatened.
v.
Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 (Halsey) to the effect 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". The judge also held that Mr
Churchill
and his lawyers had acted unreasonably by failing to engage with the
Council's
complaints procedure. That conduct was contrary to the spirit and the letter of the relevant pre-action protocol. On 4 August 2022, HH Judge Harrison granted the
Council
permission to appeal. He referred the matter to this court on the grounds that it raised an important point of principle and practice and that there were many other similar cases.
Churchill's
nuisance claim. It may be obvious, but it is worth stating expressly, that the PD applies to pre-action conduct, whilst this case concerns the powers of the court once proceedings have been issued. I will return to that point.
i) Was the judge right to think that Halsey bound him to dismiss the
Council's
application? This involves a consideration of whether the passages in Halsey relied upon by the judge were part of the main reasoning of that decision.
ii) If not, can the court lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
iii) If so, how should the court decide whether to stay the proceedings for, or order, the parties to engage in a non-court-based dispute resolution process? This involves a consideration of the relevance of the kind of non-court-based dispute resolution process being considered.
iv) Should the judge have acceded to the
Council's
application to stay these proceedings to allow Mr
Churchill
to pursue a complaint under the
Council's
internal complaints procedure?
Issue 1: Was the judge right to think that Halsey bound him to dismiss the
Council's
application for a stay of the proceedings?
v.
Joy, concerned consolidated personal injury claims by the same claimant against two separate defendants who had, admittedly, caused the claimant injury in incidents 2 years apart. The substantive issue concerned the failed contribution claim brought by the first defendant against the second defendant. The first defendant contended that the second defendant had failed to respond to their offer to mediate, so that the first defendant should not have been ordered to pay the costs of the contribution claim.
virtues
of mediation.
9. We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us 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. The court in Strasbourg has said in relation to article 6 of the European Convention on Human Rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to "particularly careful review" to ensure that the claimant is not subject to "constraint": see Deweerv
Belgium (1980) 2 EHRR 439, para 49. If that is the approach of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a
violation
of article 6. Even if (contrary to our
view)
the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of
Volume
1 of the White Book (2003) say at para 1.4.11:
"The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processesvoluntarily
entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate."
10. If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes theview
that the case is suitable for ADR, then he or she is not, of course, obliged to take at face
value
the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it.
In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In ourview,
the burden is on the unsuccessful party to show why there should be a departure from the general rule. The fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR. We shall endeavour in this judgment to provide some guidance as to the factors that should be considered by the court in deciding whether a refusal to agree to ADR is unreasonable.
v.
The Parole Board [2019] EWCA Civ 229, Leggatt LJ delivered an incisive concurring judgment (with which Nicola Davies and Haddon-Cave LJJ did not expressly agree) concerned with the proper meaning of the Latin terms "ratio decidendi" and "obiter dicta". The analysis at [48]-[59] is worth reading in full. At [48] Leggatt LJ cited the classic definition of the necessary reasoning of a decision (leaving the Latin aside) as "any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him". The proviso that he added that is relevant for our purposes was in [51] as follows:
It therefore seems to me that, when the ratio decidendi is described as a ruling or reason which is treated as "necessary" for the decision, this cannot mean logically or causally necessary. Rather, such statements must, I think, be understood more broadly as indicating that the ratio is (or is regarded by the judge as being) part of the best or preferred justification for the conclusion reached: it is necessary in the sense that the justification for that conclusion would be, if not altogether lacking, then at any rate weaker if a different rule were adopted [emphasis added].
view,
in considering Dyson LJ's full reasoning, it is even clearer that his ruling on whether the court had power to order the parties to mediate was not expressly or impliedly a necessary step in reaching the conclusions on the costs questions decided in the two cases. The costs questions were, as I have said, as to how the court decided whether a refusal to mediate was unreasonable. The factors identified by the court as relevant to that question were relevant whether or not the court had power to require the parties to mediate.
Issue 2: Can the court lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
Churchill
made three rather different submissions. First, he submitted that his right to bring and progress proceedings could not be impeded by a requirement to pursue an internal complaints procedure that was not designed to address his cause of action. Secondly, he said that any impediment to his right of access to the courts required a "secure statutory footing", which impliedly was not present here. Thirdly, he submitted that, even if there were such a statutory footing, "it [was to be] interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question" (see R (UNISON)
v.
Lord Chancellor [2017] UKSC 51, [2020] AC 869 at [80] (UNISON)).
Council
and the interveners submitted that the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made: (a) did not impair the
very
essence of the claimant's right to a fair trial, (b) was made in pursuit of a legitimate aim, and (c) was proportionate to achieving that legitimate aim.
The ECHR, legislation and rules
1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
County
Court, the High Court and the Civil Division of the Court of Appeal. Section 1(3) provided that the power to make Civil Procedure Rules was to be exercised "with a
view
to securing that the civil justice system is accessible, fair and efficient". Practice Directions are provided for by section 5 and Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
ECtHR cases
Deweer
v.
Belgium (1980) 2 EHRR 439 (Deweer)
Nevertheless, in a democratic society too great an importance attaches to the 'right to a court' … for its benefit to be forfeited solely by reason of the fact that an individual is a party to a settlement reached in the course of a procedure ancillary to court proceedings. In an area concerning the public order (ordre public) of the member States of theCouncil
of Europe, any measure or decision alleged to be in breach of Article 6 calls for particularly careful review … .
Ashingdane
v.
United Kingdom (1985) 7 EHRR 528 (Ashingdane)
Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by itsvery
nature calls for regulation by the State, regulation which may
vary
in time and place according to the needs and resources of the community and of individuals' …
Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that thevery
essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
Tolstoy Miloslavsky
v.
United Kingdom (1995) 20 EHRR 442 (Miloslavsky)
Z and others
v.
United Kingdom (2002) 34 EHRR 3 (Z and others)
Momcilovic
v.
Croatia (2019) 69 EHRR 14 (Momcilovic)
CJEU cases
Alassini
v.
Telecom Italia SpA (Joined Cases C-317/08, C-301/08, C-319/08 and C-320/08) [2010] 3 CMLR 17 (Alassini)
various
factors showed that the mandatory settlement procedure in question did not make it in practice impossible or excessively difficult to exercise the rights granted by the directive, because (a) the outcome was not binding on the parties and did not prejudice the right to sue, (b) the procedure did not result in substantial delay, (c) limitation was suspended, (d) there were no fees for the procedure, and (e) non-electronic means were available. At [61]-[63], the CJEU explained that:
61. … the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in [articles] 6 and 13 of the ECHR …
62. In that regard, it is common ground in the cases before the referring court that, by making the admissibility of legal proceedings concerning electronic communications services conditional upon the implementation of a mandatory attempt at settlement, the national legislation introduces an additional step for access to the courts. That condition might prejudice implementation of the principle of effective judicial protection.
63. Nevertheless, it is settled case law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon thevery
substance of the rights guaranteed.
Menini
v.
Banco Popolare Società Cooperativa [2018] CMLR 15 (Menini)
51. Accordingly, what is important is not whether the mediation system is mandatory or optional, but the fact that the parties' right of access to the judicial system is maintained. …
56. … Member States are free to choose the means they deem appropriate for the purposes of ensuring that access to the judicial system is not hindered. The fact, first, that the outcome of the ADR procedure is not binding on the parties and, secondly, the fact that the limitation periods do not expire during such a procedure are two means which, amongst others, would be appropriate for the purposes of achieving that objective. …
59. … Article 12 of [the mediation directive] provides that Member States are to ensure that parties who have recourse to an ADR procedure in an attempt to settle a dispute are not subsequently prevented from initiating judicial proceedings as a result of the expiry of the limitation period during that procedure. …
61. Accordingly, the requirement for a mediation procedure as a condition for the admissibility of proceedings before the courts may prove compatible with the principle of effective judicial protection, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs — or gives rise tovery
low costs — for the parties, and only if electronic means are not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires. …
Domestic cases
UNISON
78. Most of the cases so far mentioned were concerned with barriers to the bringing of proceedings. But impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament. Examples include Raymondv
Honey [1983] 1 AC 1, where prison rules requiring a prison governor to delay forwarding a prisoner's application to the courts, until the matter complained of had been the subject of an internal investigation, were held to be ultra
vires;
and R
v
Secretary of State for the Home Department, Ex p Anderson [1984] QB 778, where rules which prevented a prisoner from obtaining legal advice in connection with proceedings that he wished to undertake, until he had raised his complaint internally, were also held to be ultra
vires.
![]()
79. The court's approach in these cases was to ask itself whether the impediment or hindrance in question had been clearly authorised by primary legislation. …
80. Even where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question. …
various
means, could be unlawful without primary legislation authorising it expressly. The overriding objective requires the court to manage cases actively and to encourage and facilitate ADR, and expressly contemplates stays for such processes to be undertaken (see [29] above). The PD has supporting provisions (see [5] above).
various
contexts, and by way of example only, Arden J in Guinle
v.
Kirreh [2000] CP Rep 62 under the heading "ADR", Woolf LCJ in R. (Cowl)
v.
Plymouth CC [2002] 1 WLR 803 at [14], Blackburne J in Shirayama Shokusan Co Ltd
v.
Danovo Ltd (No 2) [2004] 1 WLR 2985 at [12]-[20], Smith LJ in Uren
v.
Corporate Leisure (UK) Ltd [2011] EWCA Civ 66 at [73], Mostyn J in Mann
v.
Mann [2014] EWHC 537 (Fam) at [16]-[17] and [36]), Norris J in Bradley
v.
Heslin [2014] EWHC 3267 (Ch) at [24], and Moylan LJ in Lomax
v.
Lomax [2019] EWCA Civ 1467, [2019] 1 WLR 6527 at [24]-[32]).
Discussion of issue 2
very
essence of the claimant's article 6 rights, in pursuit of a legitimate aim, and in such a way that it is proportionate to achieving that legitimate aim. Mr
Churchill,
though, submits that no such power can exist, because of the nature of the internal complaints procedure in this case, without an express statutory footing. I do not agree.
Churchill's
submission seeks to confuse the two questions, because he submits the internal complaints procedure itself is unsatisfactory. That may be a good reason to support the argument that no stay should ultimately be ordered, but it does not affect the question of whether the power exists in the first place.
Churchill's
submission again confuses the question of the existence of the power with its exercise, by arguing that no stay can be granted for any resolution process that: (i) does not allow the parties to be represented by lawyers, (ii) does not allow for the payment of the claimant's legal costs, and (iii) is not independent of the defendant's management. These are, no doubt, three of many factors that could affect the court's discretion in exercising its power (if it exists). But they do not go to the existence of the power itself. As I have already said, in controlling its own process, the court can obviously delay resolution of a claim to allow the parties to negotiate, whether they all want to or not. Likewise, the court can, in my judgment, control its own process, by staying or delaying any existing proceedings whilst any other settlement process is undertaken. Access to lawyers, payments of costs and the status of any mediator or decision-maker in such processes all go to the exercise of the discretion as to whether to grant such a stay, not to the power itself.
very
essence of the claimant's right to a fair trial, (b) is made in pursuit of a legitimate aim, and (c) is proportionate to achieving that legitimate aim.
Churchill's
suggestion that these cases only applied to statutory non-court-based processes is, in my judgment, wrong. It is true that statutory processes were in issue in Momcilovic, Alassini and Menini. But the principles were established and enunciated in Ashingdane, Z and others, and Miloslavsky, where different kinds of impediments to the conclusion of legal proceedings were in issue.
Churchill
relied on Peters
v.
East Midlands Strategic Health Authority [2009] EWCA Civ 145, [2010] QB 48 (Peters) at [41] as demonstrating that a party could not be required to engage with a dispute resolution procedure if that process was designed to address something different from that party's specific claim. In fact, Peters simply decided that claimants can decide whom they wish to sue for compensation, where they have claims against more than one party. The case says nothing about whether or not parties can or should be required, in the context of existing legal proceedings, to engage with any specific kind of non-court-based dispute resolution process.
Council's
June 2021 Report on Compulsory ADR which expressed the
view
at [58] and [60] that "any form of ADR which is not disproportionately onerous and does not foreclose the parties' effective access to the court will be compatible with the parties' Article 6 rights", and "we think the balance of the argument favours the
view
that it is compatible with Article 6 for a court or a set of procedural rules to require ADR".
Issue 3: How should the court decide whether to stay the proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
Churchill
argued that different legal principles applied when different methods of non-court-based dispute resolution were being considered. I have rejected that argument in deciding issue 2 above. As a matter of legal principle, in my judgment, the court can properly regulate its own procedure so as to stay proceedings or order the parties to proceedings to engage in any non-court-based dispute resolution process. I have no doubt, however, that the characteristics of the particular method of non-court-based dispute resolution process being considered will be relevant to the exercise of the court's discretion as to whether to order or facilitate it.
Council
submitted that the following factors were relevant to the exercise of the court's discretion: (i) the form of ADR being considered, (ii) whether the parties were legally advised or represented, (iii) whether ADR was likely to be effective or appropriate without such advice or representation, (iv) whether it was made clear to the parties that, if they did not settle, they were free to pursue their claim or defence, (
v)
the urgency of the case and the reasonableness of the delay caused by ADR, (
vi)
whether that delay would
vitiate
the claim or give rise to or exacerbate any limitation issue, (
vii)
the costs of ADR, both in absolute terms, and relative to the parties' resources and the
value
of the claim, (
viii)
whether there was any realistic prospect of the claim being resolved through ADR, (ix) whether there was a significant imbalance in the parties' levels of resource, bargaining power, or sophistication, (x) the reasons given by a party for not wishing to mediate: for example, if there had already been a recent unsuccessful attempt at ADR, and (xi) the reasonableness and proportionality of the sanction, in the event that a party declined ADR in the face of an order of the Court.
Churchill
submitted that the internal complaints procedure in this case was, in any event, a disproportionate fetter on the right of access to court because (a) there was no neutral third party involved and the claim was dealt with by the manager of the
Council's
own knotweed department, (b) no legal advice was available to the claimant, (c) there was no settled written procedure by which it operated, (d) it had no statutory backing, (e) it was a process that had no fixed timescale and might take an open ended amount of time, (f) the limitation period was not suspended during the process, (g) there was no provision for the payment of a claimant's costs, and (h) there was no express provision allowing for the payment of compensation in addition to eradicating the knotweed.
Council
is properly to be regarded as a species of ADR at all. That definitional issue seems to me to be academic. The court can stay proceedings for negotiation between the parties, mediation, early neutral evaluation or any other process that has a prospect of allowing the parties to resolve their dispute. The merits and demerits of the process suggested will need to be considered by the court in each case.
very
essence of the claimant's right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
Council
and Mr
Churchill,
and by the Court of Appeal in Halsey are likely to have some relevance. But other factors too may be relevant depending on all the circumstances. It would be undesirable to provide a checklist or a score sheet for judges to operate. They will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.
Issue 4: Should the judge have granted the
Council's
application to stay these proceedings to allow Mr
Churchill
to pursue a complaint under the
Council's
internal complaints procedure?
Churchill's
complaints about the nature of the
Council's
internal complaints procedure at [63] above. These demerits led Mr
Churchill
to submit that the judge was right not to have ordered the stay that the
Council
sought. Conversely, the
Council
submitted that this court ought now to order a stay for one month so as to allow Mr
Churchill
to consider whether or not to engage in the internal complaints procedure and specifically to consider allowing the
Council
to do what it had offered to do, namely to treat the knotweed in Mr
Churchill's
garden.
Council's
Notice of Appeal seeks a stay for three months for the parties to engage in the
Council's
internal complaints procedure. The relevant grounds of that appeal are simply that: (i) the judge was wrong to hold that Halsey prevented him from staying the claim for that purpose, and (ii) the CPR, the overriding objective and the principle that litigation should be the last resort, allows the court to stay premature claims for non-court-based dispute resolution and to stay or strike out claims where a party has been found to have unreasonably refused to do so. These points have already been substantively resolved above.
Churchill
and his lawyers had acted unreasonably and contrary to the spirit and the letter of the PD in refusing to use the internal complaints procedure. He said at [42] that he disagreed with Mr
Churchill
that true ADR had to be a wholly independent process. He rejected at [43]-[46] Mr
Churchill's
three other complaints at that stage, namely that (i) it was an inappropriate process, (ii) it did not deal with matters more than 12 months old, and (iii) it did not allow for the recovery of the claimant's costs. At [47]-[48], the judge declined to make any further immediate findings or costs orders, but left the costs orders to the trial judge. None of these findings has been the subject of a Respondent's Notice from Mr
Churchill,
as implicitly acknowledged in his first skeleton.
Churchill's
criticisms of the internal complaints procedure carry the implication that he was not unreasonable to refuse to engage in it, when the court has found that he was, and he has not appealed that finding. Had he challenged the finding, it would have been open to us to reach the opposite conclusion on the question of reasonableness, and the arguments before the court would have been different.
Churchill
has refused to allow the
Council
to treat the knotweed in his garden, standing on his right to seek compensation and costs from the court. Thirdly, whilst the stay was sought after the issue of legal proceedings, the
Council's
internal complaints procedure is plainly intended to operate before proceedings have been issued. We are told that it is in a form that is in widespread use by
Councils.
Fourthly, the procedure itself seems, predominantly at least, to envisage a complaint about the
Council's
services to
council
tax payers as opposed to private law claims against the
Council
as a neighbour. Finally, whilst the
Council
submits that its internal complaints procedure is crucial, because the total
value
of all knotweed claims brought by adjoining owners against the
Council
is
very
high indeed, it may not be the most appropriate process for an entrenched dispute of this kind.
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.
Conclusions
i) [9]-[10] of Halsey was not part of the essential reasoning in that case and did not bind the judge to dismiss the
Council's
application for the stay of these proceedings.
ii) The court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the
very
essence of the claimant's right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
iii) I decline to lay down fixed principles as to what will be relevant to determining the questions of a stay of proceedings or an order that the parties engage in a non-court-based dispute resolution process. Many of the factors mentioned at [61]-[63] above and the nature of the process contemplated will be relevant, as will other circumstances.
iv) I would decline to make any order for a stay of these proceedings at this stage for the reasons given at [67]-[73] above.
view
that: (i) there should be no order as to costs of this appeal as between the parties to the proceedings, and (ii) the parties ought to consider whether they can agree to a temporary stay for mediation or some other form of non-court-based adjudication.
Lord Justice Birss:
Lady Carr, Lady Chief Justice:
Note 1 Apparently referring to a Corporate Complaints, Representations and Compliments Policy Note 2 The Glossary itself says that it “is a guide to the meaning of certain legal expressions as used in these Rules, but it does not give the expressions any meaning in the Rules which they do not otherwise have in the law”. [Back] Note 3 See the formal statement agreed by all the parties and interveners on the second day of the hearing before this court: “The question of whether compulsory mediation is lawful was not in issue at first instance inHalsey. In the Court of Appeal proceedings, the issue was not raised in the Appellant’s Notice and none of the written skeleton arguments addressed that issue.” [Back]
version 1.0 dated September 2014. [Back]