In September last year in a piece entitled The changing role of ADR in the civil justice system: the implications of the government’s response to consultation, Matthew Marsh, formerly the Chief Chancery Master and now a member of the Three Stone Mediation Team, examined the trend in favour of compulsory ADR in the wake of the report of the Civil Justice Council signalling likely moves in that direction. A recent decision of the Court of Appeal represents a further step along that road.

The judgment of the Court of Appeal in Halsey v Milton Keynes General NHS Trust  [2004] EWCA Civ 567 has generally been taken to mean  that ordering parties to litigation to mediate would be an unacceptable obstruction to their right of access to the courts under article 6 of the European Convention on Human Rights. In Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal distinguished Halsey, holding that the power to order an early neutral evaluation did not require the consent of the parties. The judgment of Sir Geoffrey Vos MR in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, handed down on 29 November 2023, marks a further move in the same direction.

Mr Churchill had bought a property in Merthyr Tydfil. The adjoining land belonged to the local Council. Mr Churchill claimed that Japanese knotweed had encroached from it onto his property, causing damage, a reduction in its value and loss of enjoyment. The Council complained that Mr Churchill had not made use of its Corporate Complaints Procedure: it responded to his letter before action by threatening that, if Mr Churchill issued proceedings without having done so, it would apply for a stay and for costs. Mr Churchill issued his claim. The Council applied for a stay.

The deputy district judge who heard the application to stay dismissed it, holding that he was bound by Dyson LJ’s statement in Halsey v Milton Keynes General NHS Trust 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,” although he also held that Mr Churchill had acted unreasonably in failing to engage with the Council’s complaints procedure. The Council was given permission to appeal to the Court of Appeal on the ground that the appeal raised an important point of principle and practice that was relevant to other similar cases.

Allowing the appeal, Sir Geoffrey Vos (with whom Birss LJ and Carr LCJ agreed), said,

Experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly. Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method of non-court-based dispute resolution in a particular case is a matter of the court’s discretion, to which many factors will be relevant.

The decision, which will come as no surprise, will bolster the movement in favour of compulsory ADR, even if it falls short of empowering the courts to make it mandatory in every case: access to the courts remains an important consideration, and the courts themselves still enjoy a very broad discretion. It will carry considerable weight as a result of having been fully argued with the benefit of intervention on the part of the Law Society, the Bar Council and a range of other interested parties.


Stephen Baister is a member of the Three Stone Mediation Team.  If you would like to discuss using one of the team, please contact one of Justin Brown.