The claimant owned a property which adjoined land owned by the local authority from which he contended that Japanese knotweed had encroached onto his property. causing damage, a reduction in value and loss of enjoyment. In response to claim letter sent by the claimant's solicitors, the local authority queried why he had not made use of its “corporate complaints procedure”, and stating that if the claimant were to issue proceedings without having done so, the council would apply for a stay to enable that process to be utilised. In the event the claimant issued proceedings, and the council duly applied for a stay. In dismissing the council’s application for a stay, thedeputy district judge held that although the claimant and his lawyers had acted unreasonably by failing to engage with the council’s complaints procedure, he was bound by authority to the effect that the compulsion of unwilling parties to refer disputes to alternative dispute resolution would impose an unacceptable obstruction on the right of access to the court. The local authority appealed, contending that the judge had been wrong to conclude that he was bound to dismiss the stay application, and that there had in fact been a power to order the stay to enable the local authority’s complaints procedure to be engaged as a non-court-based dispute resolution process.
Held, appeal allowed in part. In exercise of its long-standing power to control its own process, the court had the power lawfully to stay proceedings for, or to order, parties to litigation to engage in a non-court-based dispute resolution process, provided that the order made did not impair the very essence of the claimant’s right to a fair trial, was made in pursuit of a legitimate aim and was proportionate to achieving that aim. In particular, the existence of such a power was consistent with the overriding objective in the CPR, which among other things required courts to manage cases actively and to encourage and facilitate alternative dispute resolution, and with the jurisprudence of both the domestic courts and that of the European Court of Human Rights and Court of Justice the European Union. Although the characteristics of the particular method of non-court-based dispute resolution process being considered were not relevant to the existence of the power to stay proceedings, they would be relevant to the exercise of the court’s discretion as to whether to order or facilitate it, and the merits and demerits of the process suggested would need to be considered by the court in each case. It followed that in the present case the deputy district judge had fallen into error in concluding that he was bound to hold that he had no power to order the stay sought by the local authority, an to that extent the appeal would be allowed. However, since the proceedings had move on since the hearing before the judge, it would not now be appropriate to order the one-month stay sought by the local authority (paras 13, 18–21, 24, 58, 60, 65–66, 70, 73–75, 76, 77).
Michel Kallipetis KC, Iain Wightwick and Maya Chilaeva (instructed by Senior Solicitor, Merthyr Tydfil County Borough Council) for the council.
Robert Weir KC and Tom Carter (instructed by McDermott Smith Law Ltd, Liverpool) for the claimant.
Rupert Cohen (instructed by Law Society Legal Services Team) for the Law Society of England and Wales, intervening.
Nicholas Vineall KC and Amy Rogers for the Bar Council, intervening.
Edwin Glasgow KC and Kelly Stricklin-Coutinho (instructed by Stewarts) for the Civil Mediation Council, the Centre for Effective Dispute Resolution, and the Chartered Institute of Arbitrators, intervening.
Justin Bates and Tom Morris (instructed by Anthony Gold Solicitors LLP) for Housing Law Practitioners Association, intervening.
Elizabeth England (instructed by Capsticks LLP) the Social Housing Law Association, intervening.