It is fairly well accepted that court cases can be expensive and time-consuming. Even when your case appears strong there are no guarantees that you’ll emerge from court victorious. And when a judge finds in your favour there are complex rules about recovering costs that mean you may still end up out of pocket. These are some of the reasons why at Gamlins Solicitors LLP we will always work hard in appropriate cases to try and resolve your case before it reaches a final court hearing.
A 2023 case involving the Council in Merthyr Tydfil makes clear that the courts have the power to oblige parties to make use of alternatives to court to resolve disputes (ADR). We discuss the case below and explain what it might mean for anyone involved in a court case.
If you are engaged in some kind of legal dispute – whether you are considering bringing a claim or you have had proceedings issued against you, call us on 01492 532 275 or contact the team online. Our litigation solicitors are experienced in all types of dispute, and with a network of offices across North West Wales are always able to offer you a local, personal service.
Churchill v Merthyr Tydfill (2023): What Happened?
The facts of the case were relatively straightforward. In 2015 Mr Churchill bought a property in Merthyr Tydfil that was situated next to Council owned land. Mr Churchill claimed that, since 2016, Japanese knotweed had grown from the Council’s land onto his property and damaged it. Mr Churchill’s solicitors sent the Council a letter of claim in October 2020. In response the Council wondered why Mr Churchill had not made use of the Council’s Corporate Complaints Procedure. It said that, if Mr Churchill were to issue court proceedings, the Council would ask the judge to stop proceedings so that the Complaints Procedure could be followed. The Council also indicated it would ask for Mr Churchill to pay its legal costs. Despite this warning, Mr Churchill issued proceedings against the Council in July 2021. The Council then asked the court to halt proceedings as it had threatened.
The court refused the Council’s request indicating that because of earlier cases (in particular the case of Halsey from 2004) it could not oblige truly unwilling parties to refer their disputes to a council complaints procedure or any other form of ADR. But the court also said 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 litigation rules.
In light of this finding of unreasonableness it was perhaps not surprising that the Council got permission to appeal the decision.
Appeal Court Decides
At the outset the Appeal Court decided that the previous judge did not in fact have to follow the earlier case of Halsey (this decision was for technical legal reasons to do with how judgments are interpreted which needn’t concern us here). Instead the appeal judges looked at other cases and Article 6 of the European Convention on Human Rights (which guarantees the right to a fair trial). It reached the conclusion that it could in principle stop proceedings to force parties to engage in alternative dispute resolution (ADR) like mediation, arbitration (or as here internal complaints procedures). It noted however that because of Article 6 it could only do so provided that:
- Stopping proceedings would not impair the very essence of the claimant’s right to proceed to a judicial hearing; and
- To do so would be a proportionate way to achieve the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
In the Churchill case itself things had gone so far that ordering the parties to go back to the council’s internal complaints system was impractical.
Comment
So what does this mean for our clients who might be engaged in a legal dispute? First and foremost the case demonstrates the weight courts attach to ADR as a way of resolving all kinds of dispute away from court. We also think that as a result of decisions like Churchill courts will be stricter about insisting that parties show a willingness to engage in mediation, informal negotiation and other types of ADR. Where parties refuse to try ADR, they should now expect courts to require an explanation as to why they felt ADR was inappropriate.
At Gamlins Solicitors LLP we handle a wide range of litigation cases, from will disputes to company/partnership disputes. Getting the best results for clients is always the priority and we will use a wide range of approaches and tactics to achieve this. We think the trend toward courts insisting on more use of ADR techniques is no bad thing. If anything it should serve to concentrate the mind of even the most unreasonable litigant, and for him or her to consider a non-court-based solution.
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For advice please call us on 01492 532 275 or contact the team online
