Luke Foot


DATE PUBLISHED: 12 Jan 2024 LAST UPDATED: 24 Jan 2024

I’ll see you in court…or will I? – The Court’s power to order compulsory ADR

Up until recently, it was largely accepted that parties could not be compelled by the Court to engage in Alternative Dispute Resolution (ADR) to settle their differences. However, in a significant legal development that has the potential of redefining civil litigation, the Court of Appeal recently explored this narrative in Churchill v Merthyr Tyfdil County Court Borough Council [2023] and whether parties can be ordered to engage in non-Court based ADR.

This article considers Churchill and its potential ramifications on the civil litigation landscape.


By way of a whistlestop tour on the history of compulsory ADR, the Civil Procedure Rules includes an obligation on the Court to, amongst others, encourage parties to use a form of ADR if considered appropriate. This is not to be misconstrued as the Court having power to compel parties to ADR.

Indeed, in the landmark case of Halsey v Milton Keynes General NHS Trust [2004], the Court of Appeal likened the notion of ordering compulsory ADR to be a breach of Article 6 of the European Convention of Human Rights, which guarantees the right to a fair trial.

Since then, and more recently in October 2023, following the Ministry of Justice’s announcement earlier that year, we have seen the Court integrate a form of ADR, namely mediation, to all small claims up to the value of £10,000.

Whilst this timely Judgment in Churchill somewhat progresses the recent push for ADR, there is still a long way to go before compulsory ADR is introduced across civil litigation.


Briefly, the case of Churchill surrounds a claim of nuisance brought by the Claimant, Mr Churchill, caused by the encroachment of Japanese Knotweed from a neighbouring property owned by the Council. We consider knotweed claims further in our previous article “Japanese knotweed – a growing cause for concern?“.

From the outset, following Mr Churchill’s issuing of the claim, the Council sought a stay of proceedings for Mr Churchill to exhaust the Council’s internal complaints procedure in the first instance, before proceeding with litigation. After considering Halsey, the County Court rejected this argument however granted the Council’s appeal to the Court of Appeal.

On appeal, the Council asked the Court of Appeal to address the issue on whether Mr Churchill was obliged to engage with its internal complaints procedure before issuing his claim.

In its Judgment, the Court of Appeal ruled that the Court can stay proceedings to direct parties to engage in ADR. The Court of Appeal noted the Halsey precedent however did not consider it to be binding on the lower Courts and, in turn, it would not be an unjust obstruction to one’s Article 6 right to a fair trial. With that being said, the Court of Appeal refrained from directing Mr Churchill to the Council’s complaints procedure, commenting that the Council’s ADR procedure was not suitable in those circumstances.


With reference to the above, in its Judgment in Churchill, the Court of Appeal most significantly recited 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”

Further, the Court of Appeal notably refrained from offering any further guidance as to how and under what circumstances ADR can be ordered and, instead, commented that “it would be undesirable to provide a checklist or a score sheet for judges to operate.” Nonetheless, Churchill may be welcomed by some as a positive step in seeing parties being directed to engage in ADR in the future.

In contrast, the Court of Appeal’s somewhat reluctance to set out any further guidance may put others at ease. Of course, there are parties engaged in Court proceedings who have no appetite to settle and would rather matters progress to a hearing for judgment. Sometimes, such desire and attitude are revealed at the early stages of litigation in which case, regrettably, ADR can be a disingenuous and futile exercise.

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