The court can lawfully order parties to engage in ADR

November 30, 2023

The much-anticipated decision of the Court of Appeal in James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 has been handed down.


The dispute underlying the case concerns an encroachment of Japanese Knotweed onto Mr Churchill’s property from the Council’s adjoining land and whether Mr Churchill’s claim against the Council ought to be stayed so that it can be considered through a Council-run complaints procedure first. The latter issue meant that the decision in the appeal had potentially much wider implications concerning the court’s power to order parties to litigation to engage in non-court-based dispute resolution and the circumstances in which such power should be exercised.  The case therefore attracted interventions from the Bar Council, the Law Society and bodies representing the ADR community including the Civil Mediation Council, the Centre for Effective Dispute Resolution, and the Chartered Institute of Arbitrators.


Giving a judgment with which both the Lady Chief Justice Lady Carr and Lord Justice Birss agreed, the Master of the Rolls Sir Geoffrey Vos first addressed passages in Lord Justice Dyson’s judgment in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 which the judge at first instance in Churchill had considered binding.

Those passages (found at paragraphs 9 and 10 of Dyson LJ’s judgment) are to the effect that whilst a court can encourage or attempt to facilitate ADR, it cannot order parties to engage in ADR against their will, since to do so would violate Article 6 of the ECHR.  Whilst accepting the meaning was unambiguous, the Master of the Rolls found that the statement was not a necessary part of the reasoning leading to the decision in Halsey and as an obiter dictum was not binding.

The Power to Order ADR

Having disposed of that part of Halsey in that way, the court then went on to review recent domestic and European jurisprudence drawing a distinction between the principle of the existence of the court’s power to order non-court-based dispute resolution and the factors affecting whether and when the power – if it exists – should be exercised.

The court found that many of the objections raised to the existence of such a power concerned the characteristics of a particular form of ADR or the circumstances in which the use of ADR was being considered or some combination of the two and that such considerations were relevant to the second issue – that of whether and when the power should be exercised – rather than to whether the court had such a power in the first place.

The court held that as a matter of law, the court can lawfully stay existing proceedings for, or order the parties to engage in a non-court-based form of dispute resolution.

Whether and When to Exercise the Power

As to whether the court should do so in a particular case, those hoping that the court would lay down fixed principles or what the Master of the Rolls termed a “checklist” or “scoresheet” for judges to follow when deciding whether to order ADR will be disappointed.  The court declined to do so, on the basis that judges will be well qualified to decide whether a particular process is or is not likely to be suitable in order to achieve a fair, speedy, and cost-effective resolution to a particular dispute in the light of the surrounding circumstances.

The Bar Council had suggested nine factors as likely to be relevant to whether a stay for ADR should be ordered.  Mr Churchill had suggested eight reasons why the complaints procedure being suggested a means of resolving his dispute with the Council was unsuitable. The court observed that the respective submissions illustrated the relevance of the particular process being considered and it characteristics. The Master of the Rolls put it like this:

“The court can stay proceedings for negotiation between the parties, mediation, early neutral evaluation or any other process that has a prospect of allowing the parties to resolve their dispute.  The merits and demerits of the process suggested will need to be considered by the courts in each case.”


The judgment clears the way for the court to order ADR in the face of objections from the parties and in tone and content is largely supportive of the use of the various methods of ADR where to do so would enable a fair, speedy and cost-effective solution to the dispute in accordance with the overriding objective.  It remains to be seen how willing judges will be to exercise the power that the Court of Appeal has unanimously found them to possess.

by PETER DIXON  Barrister and CMC Registered Mediator