A Court of Appeal hearing opening today will decide on whether a claim over Japanese knotweed should be stayed until parties have engaged with a form of alternative dispute resolution. The Law Society is among the bodies intervening in Churchill v Merthyr Tydfil County Borough Council, which has been described as ‘raising an extremely important issue relating to access to justice’.
The case is being heard over three days at the Royal Courts of Justice before lady chief justice Sue Carr, master of the rolls Sir Geoffrey Vos and lord justice Birss.
The dispute centres on a Japanese knotweed nuisance claim brought against the Welsh local authority. It is alleged that the plant has spread from council land onto private property.
The council argued the claimant should have followed ADR options, such as its internal complaints procedure, before pursuing legal action while the claimant sought to strike out parts of the local authority’s defence.
The lower court dismissed the applications, but permission was granted to bring the case to the Court of Appeal.
The findings in the case could overturn the decision in Halsey v Milton Keynes General NHS Trust [2004], which established that parties could not be compelled to mediate as it would breach their right to a fair trial under Article 6 of the European Convention on Human Rights.
The Civil Mediation Council, the Chartered Institute of Arbitrators and the Centre of Effective Dispute Resolution have jointly intervened in the case. The groups have submitted written arguments to the court as to why Halsey should be set aside, previously describing it as a ‘thorn in the side of mediation’.
The case is one of an increasing number of Japanese knotweed nuisance claims being brought against local authorities. Judgment is expected to be reserved.
Law Society president Nick Emmerson said: 'The Law Society has strong reservations that this is a suitable case to challenge the outcome of Halsey. We believe that ADR that is independent of those involved will frequently be in the best interests of the parties and that compulsory referral will not necessarily be unlawful in all cases. But such a complex and sensitive issue should be considered in the round, rather than in a context where reform is constrained by the individual facts of the case before the court.'
