A knotty mediation problem, about Japanese knotweed and access to justice is to be decided by the UK Court of Appeal.

In the UK, Sir Geoffrey Vos, Master the Rolls, on the occasion of the 12 July 2021 Civil Justice Council's report on compulsory alternative dispute resolution said that "ADR should no longer be viewed as "alternative" but as an integral part of the dispute resolution processes; process should focus on resolution rather than dispute". https://www.judiciary.uk/guidance-and-resources/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/ ?

The UK Court of Appeal is due to consider this important issue in the ADR case of Churchill v Merthyr Tydfil County Borough Council (CA-2022-001778). The appeal is from the order of District Judge DDJ Rees, Cardiff Civil and Family Justice Centre dated 12 May 2022.

In her decision to permit the claim to be heard, Lady Justice Andrews said the case "raises an extremely important issue relating to access to justice". The issue? – Should a claimant be forced to go through ADR processes before even being allowed to issue legal proceedings?

The case arose from a claim for damages against Merthyr Tydfil County Borough Council (MTCBC) for nuisance caused by an alleged incursion of Japanese Knotweed from council-owned land.

MTCBC is currently defending a number of knotweed claims in the County Court, which it says is placing a strain on its limited financial resources. MTCBC is set to argue in the Court of Appeal that a claimant behind a damages claim should have exhausted their alternative dispute resolution options – including an internal complaints process – before being permitted to engage in litigation.

The court will therefore be asked to decide whether a claimant who unreasonably refused to engage in the Council's ADR processes can be prevented from bringing or advancing a claim in court. This raises some interesting issues in respect of access to justice in the UK and the steps to be taken before court proceedings are issued, (such as exhausting internal complaints procedures and adhering to pre-action protocols). The case also raises issues in relation to the role of ADR in the civil justice system generally in the UK.

Iain Wightwick, a barrister at Unity Street Chambers who is representing the council in the case (led by Michel Kallipetis KC), said the local authority will argue that people making relatively low-value claims against public authorities should be required to exhaust any internal complaints process before they engage in litigation, including following any relevant Pre-Action Protocol", adding that although the case is a knotweed claim, the principle is the same for all claims against publicly funded authorities and organisations.

Andrews J described the issue at hand as: "[Concerning] whether a claimant who unreasonably refuses to engage in ADR in breach of the requirements of the Practice Direction (Pre-Action Conduct and Protocols) can be precluded from bringing or advancing a claim in court." She noted that the court will need to consider whether, and if so, to what extent, the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 is affected by the Pre-Action Conduct and Protocols, particularly paragraph 15, which came into force in 2015.

The UK Court of Appeal concluded in Halsey v Milton Keynes General NHS Trust that "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".

As part of her decision to accept the transfer up of the appeal, Andrews J said the stay on the other proceedings the Council is handling should remain in place, pending the resolution of the appeal, rather than that there should be an expedited hearing of the appeal. This is, in part, to allow organisations to make submissions. It has been suggested that the CJC, Local Government Association, the Law Council and the Bar Council may wish to intervene and make submissions.

The ultimate decision is one which will undoubtedly be of interest to Irish practitioners as well having regard to the courts' powers under section 21 of the Mediation Act 2017, to consider the conduct of the parties in relation to requests to mediate, when it comes to considering orders as to costs.