Court of Appeal grants ADR bodies right to intervene in a case to overturn a judgment that parties cannot be compelled to mediate

  • Market Insight 10 July 2023 10 July 2023
  • UK & Europe

  • Insurance

The Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (CIArb) and the Centre for Effective Dispute Resolution (CEDR) have been granted the right to intervene in a case which may overturn the decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 (Halsey). In Halsey, the Court of Appeal concluded that the court had no jurisdiction to compel parties to mediate as it would be a breach of the right to a fair trial in Article 6 of the European Convention on Human Rights (Article 6).


In Halsey, relying on breach of Article 6, the Court of Appeal stated:

"It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court….it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6".

Subsequent judgments have followed Halsey and the court has been constrained to strongly encouraging parties to mediate. However, over the years since Halsey, various judges have expressed a desire for the court to review the decision.

On 12 July 2021, the Civil Justice Council (CJC) published its report on “Compulsory ADR”. It concluded that mandatory ADR was compatible with Article 6 essentially because there was no obligation on the parties to settle in the course of any compulsory ADR process and the parties remained free to choose between settlement and continuing the litigation; this choice meant that there was not an unacceptable constraint on the right of access to the court. In response to the report, the Master of the Rolls, Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, stated that “ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”.

However, despite this commitment to compulsory ADR, Halsey remains the legal precedent. This became apparent in the recent case of Mills & Reeve Trust Corporation Ltd v Martin and others [2023] EWHC 654 (Ch) (24 May 2023) in which the High Court considered itself bound by the dicta in Halsey and concluded that it did not have the power to compel the parties to mediate.

The intervention

On 27 June 2023, the CMC published a press release, announcing that the CMC, the CIArb and CEDR will provide a written intervention in the case of Churchill v Merthyr Tydfil County Borough Council (Churchill) before the Court of Appeal later in 2023. The CMC has stated that the aim of the intervention is to set aside the Halsey judgment on Article 6 which it considers has been “a thorn in the side of mediation in England and Wales, stopping parties from being referred to mediation in many cases”. The underlying facts in Churchill concern a Japanese knotweed claim - the defendant, in disputing the claim, said that the claimant should have followed ADR options before pursuing legal action. The county court rejected the defendant’s argument but permitted a challenge straight to the Court of Appeal. A later hearing date has been granted to allow the joint intervention from the trio of commercial ADR bodies.

If Churchill overturns the decision in Halsey, it will arguably enable the court, in the appropriate circumstances, to stay proceedings and compel parties to mediate even if the parties do not wish to do so.  This may give rise to related considerations, the resolution of which is not yet known, such as who would determine the particulars of the mediation and whether mediation services should be regulated.

Churchill is awaiting a judicial determination on the papers, and we will be tracking this case. The intervention papers can be found on the CMC’s website here.

If you would like to discuss this update, please contact Tom White or your usual Clyde & Co contact.


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