30 November 2023
Compulsory Mediation – A Step Forward
On 29th November 2023 the Court of Appeal in England
and Wales issued its judgement in the case of James Churchill v Merthyr Tydfil
County Borough Council  EWCA Civ 1416.
This is an important case for those interested in developments
The Court ruled on whether parties can be compelled to use
alternatives to the Court system. In an
important departure from the seminal case of Halsey -v- Milton Keynes General
NHS Trust  EWCA Civ 576, the Court of Appeal considered that observations
by Lord Dyson were obiter and therefore the original trial Judge in the case
under appeal was not obliged to follow them.
The case under appeal had somewhat ordinary beginnings. Mr Churchill, whose garden abutted lands
owned by Merthyr Tydfil County Borough Council, alleged that the Council had
failed to control Japanese Knot Weed on its land. As a consequence, his garden had been
infested. The Council asked that Mr
Churchill’s claim be stayed so that the Councils’ internal complaints procedure
could be used to endeavour to resolve the matter.
The Court of Appeal were asked whether or not parties could be
compelled to use mediation or some other form of non-court-based resolution
process – such as the Council’s housing disputes scheme.
Lord Dyson said in Halsey “to oblige fully unwilling parties to
refer their disputes to mediation would be to impose an unacceptable
obstruction on their right of excess to the Court”. The original Trial Judge held that not only
was he obliged to follow that Dyson dictum but that Mr Churchill had acted
unreasonably for failing to engage with the Council’s complaints procedure.
In a Court of Appeal comprising the new Lady Chief Justice Lady
Kerr, Lord Justice Birss and Sir Geoffrey Vos, Master of the Rolls, the Court
of Appeal ruled that the observations of Lord Dyson while of general importance
were in fact not a necessary part of the reasoning that led to his decision in
the case. In old fashioned Latin the
dictum was not part of the ratio decidendi and was an obiter dictum.
Liberated from the obligation to adhere to the Halsey position,
the Court of Appeal went on to conclude that it can be appropriate for the
Court, in its discretion, to require parties to use what the Court called “non-court-based
It is of no surprise for those who attended the Commonwealth
Lawyers Association, Mediation Conference in Belfast in May 2022 to find that
Sir Geoffrey Vos delivered the principal Judgement in this Appeal. Sir Geoffrey has long advocated that civil
justice comprises litigation, arbitration, and mediation and all have their
part to play in disputes. At paragraph
59 of his Judgement, he 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
Therefore, the way is now open for Courts to compel initially
unwilling parties to attempt some form of dispute resolution - the most notable
form of which is likely to be mediation.
At paragraph 65 Vos MR observed “the Court should only stay proceedings
for, or order, the parties to engage in a non-Court based dispute resolution
process provided that the order does not impair the very essence of the
claimants right to proceed to a judicial hearing and is proportionate to
achieving the legitimate aim of settling the dispute fairly quickly and at
Some consideration was given to setting out criteria or a list of principles,
but Vos MR concluded that there should not be any fettering of a Court’s
This case was also notable for the number of intervening parties
which included the Law Society of England and Wales. The Bar Council of England and Wales, the Civil
Mediation Council, CEDR the Chartered Institute of Arbitrators and the Housing Law
Practitioner’s Association and the Social Housing Law Association. All had very eminent representatives and
therefore the Churchill and Merthyr Tydfil judgement is likely to redefine the
law for a considerable period to come.
While the acronym NCBDR is not as catchy as ADR nevertheless this
judgement represents an important endorsement of mediation. It will encourage advisers and parties that
they must seek to resolve disputes while at the same time it preserves the
entitlement of the parties to a judicial decision-making process.
It remains to be seen whether Courts will compel parties to take
part in mediation. It also will be
important to gather information as to the experience of parties who have been
obliged to take part in mediation. Will
they “go through the motions”? Or will
they say we have been required to do this therefore let us make the most of it?
Much, I believe, will depend on the skill of the trained mediator
following an appropriate mediation process.
It is noteworthy that for nearly 20 years the UK position has been
to adopt Lord Dyson’s words in Halsey that the Court’s role is to encourage not
to compel. Now we find that under Vos MR
the Court’s role, sometimes, can be to compel.