Refuse to engage in dispute resolution at your peril. Or can the court lawfully order a party to take part in dispute resolution?

A brief look into Churchill v Merthyr Tydfill County Borough Council

The Court of Appeal has very recently considered the issue of whether a court can interfere with a party’s right of access to justice and oblige parties to refer their dispute to mediation even if they are unwilling. 

In the case of Churchill v Merthyr Tydfill County Borough Council which involved a claim relating to Japanese Knotweed, the lower court felt that ordering the parties to engage in mediation would be a step too far- in reaching that decision the court referred to an earlier case, Halsey v Milton Keynes General NHS Trust [2004] to confirm 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”.

Under Halsey, there was some comfort that although the court would expect the parties to attempt to settle any dispute by various alternative dispute resolution (ADR) methods, it would not actually order a party to do so.  After all, there are basic rights available to any party with a dispute to have access to the court and that right should not be interfered with.

Permission to appeal was, however, granted in the Churchill case and that appeal was heard at the end of November 2023.  The Court of Appeal found that the lower court was not bound by Halsey, meaning that it considered that the court can lawfully stay proceedings for, or order the parties to engage in dispute resolution, as long as that order does not interfere with a parties’ right to proceed to a judicial hearing.  It must also be the case that any stay is proportionate to achieving the legitimate aim of settling the dispute “fairly, quickly and at reasonable cost”.

What is clear is that all the factors will be taken into account when the court determines if a stay of proceedings or an order for ADR should be made.   This will include giving consideration to issues such as the type of ADR being considered whether the parties have legal representation and also the nature of the process contemplated. 

There is therefore a qualification to the court’s involvement in making the parties engage in ADR; it is not the case that there will be a mandatory order from the court in every case and there will always be consideration of all the facts, but in the light of the Court of Appeal’s decision, it is now clear that there is every chance that the court is going to get even more involved in seeking an earlier resolution to disputes and will be prepared to order a stay or a mediation if the court thinks it appropriate to do so.  

It is worth noting that this decision was in the area of nuisance and therefore on a narrow analysis it could be argued that this decision can be confined to that area.  That said, on a wider basis, it is a sign of the direction in which the courts are likely to go.  Any party to litigation should therefore be very aware of the need to try to resolve a dispute wherever possible.  A party will refuse to engage in any form of ADR at its own peril (and certainly at a serious risk on costs).

For further information, please contact our Joanne Davies at or on 01543 420059.

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