The fallout from Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, [2023] WLR(D) 498 continues to scatter; but in an odd way. The UK’s own lord chancellor (as reported in the Gazette) seems not to have read – or at least not to have understood – the judgment.

Master of the rolls Sir Geoffrey Vos defined the issue for the court in Churchill as: ‘[1] … Whether a court can lawfully order the parties to court proceedings to engage in a non-court-based dispute resolution process, and, if so, in what circumstances it should do so.’ After reciting a variety of case law including European jurisprudence he concludes that ‘[58] … as a matter of law, the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process’ (emphasis added). As I read that, Vos’s words summarise simply and elegantly the common law of English and Wales: that parties can be ordered to attend non-court dispute resolution (NCDR), or at least that proceedings can be stayed for them to attempt NCDR.

But no, an issue remains, it seems. In the red corner is the master of the rolls (as above) with professor Dominic Regan (see New Law Journal, 15 December 2023). The professor defines the outcome of Churchill as ‘That old tosh about judges being powerless to order ADR [is] sent to recycling!’. In the blue corner, with the lord chancellor, is Graham Coy's article in the Gazette: 'Where now for mediation?'. Coy makes no reference to Churchill which I could see, and merely laments the lord chancellor’s announcement.

Pre-action protocols and family proceedings

Churchill turned on the failure of Mr Churchill (C) and his lawyers to take advantage of – or at least to try – the mediation scheme which was available as part of a pre-action protocol (PAP) available in cases such as his (where he was claiming damages for a Japanese knotweed problem from the local council). Could NCDR settle C’s claim? Sir Geoffrey explained fully the 1990s genesis of PAPs and their importance in civil litigation and considered that C should at least have tried NCDR.

In Jet2Holidays Ltd v Hughes [2019] EWCA Civ 1858, [2020] 1 WLR 844, protocols (the modern list is set out in para 18 of Section C annexed to Civil Procedure Rules 1998) were described as ‘now an integral and highly important part of litigation architecture’ (at [36]). In Access to Justice: Final Report Lord Woolf (1996) – nearly thirty years ago – explains Woolf's views on protocols in chapter 10. He points out that what is needed ‘is a system which enables the parties to engage in meaningful negotiation as soon as litigation seems likely and ensures then that they exchange relevant information’.

And that is surely as true of family as of all civil proceedings. Yet what is truly disappointing to report is that family law and its procedural rules still offer only one more or less meaningless PAP (‘annexed’ to Part 9 on financial relief). To make the stay proposals of Churchill work properly, there must be an effective system of PAPs over most sets of family proceedings.

This judgment applies to all proceedings where mediation may help to resolve the outcome of the parties' case; and that goes for their lawyers as well. As I read the blue corner contribution, they have overlooked this critical development of the common law as it is set out in Churchill and explained by Professor Regan thus: ‘Churchill v Merthyr has confirmed a court may order ADR. Any order must be reasonable and proportionate. Look at the judgment and be amazed at how Sir Geoffrey Vos glides through a forest of decisions, domestic and European, to arrive at a sane conclusion.’

Short proposals for a way forward for family law mediation

What is now needed for family law (where mediation all started in Bristol in 1976) is a practical lead by family law rule makers building on what the common law (ie Churchill) offers:

  • A clear system of pre-action protocols (in family proceedings) on which judges and parties can rely for an order for stay of proceedings;
  • A system which is understood by private parties for how mediators are to be paid (eg by one or both parties), and by court order as need be;
  • A clear procedure by which application for a stay or order can be made (eg defined by a practice direction under Civil Procedure Rules 1998 (CPR 1998) Part 23 or Family Procedure Rules 2010 (FPR 2010) Part 18).

Oh, and someone is going to have to tell us what happens if a lord chancellor says one thing, and the common law seems to say the opposite – or at least, to say something else…

 

David Burrows is a solicitor advocate and law writer

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