Internal complaints procedures should not be considered a form of alternative dispute resolution, the Court of Appeal heard this week in a high-profile case over mandatory mediation.
The case centres on a nuisance claim brought against Merthyr Tydfil County Borough Council. It is alleged that Japanese knotweed spread from council land onto private property.
Court 71 of the Royal Courts of Justice this week heard opening submissions from the local authority as well as intervenors including the Law Society and the Bar Council.
Michel Kallipetis KC told the court the Welsh authority had tried to engage with claimant James Churchill by offering to get rid of the plant if they were given permission to go on to his land, which was refused.
Rupert Cohen, for the Law Society, said internal complaint procedures should not be counted as ADR, a term which should be used as referred to in the Civil Justice Council’s report where an external third party agent is used to explore potential settlement. Cohen added: ‘Even if internal complaint procedure is to be seen by this court as being ADR, [we] invite this court to give an exhaustive explanation of what ADR means. The term ADR is nothing if not inconsistent. For some, it ultimately [means] that third party independent process.’
Nick Vineall, for the Bar Council, said ‘interference with access to the court will be unlawful unless it can be justified to meet a legitimate objective. To make it absolutely clear, we are enthusiasts for mediation but there is a difference [between that and going to court]. If you go to court, the judge is there to make sure you make a just outcome and there is nobody like that in a mediation.’
The case, which is listed for three days, continues.
