Court of Appeal to hear council case that claimants with low value damages claims should exhaust internal complaints process before litigation
Merthyr Tydfil County Borough Council is set to argue in the Court of Appeal that a claimant behind a damages claim should have exhausted their alternative dispute resolution options – including an internal complaints process – before being permitted to engage in litigation.
In her decision to permit the claim to be heard, Lady Justice Andrews said the case "raises an extremely important issue relating to access to justice".
The case arose from a claim for damages for nuisance caused by an alleged incursion of Japanese Knotweed from council-owned land.
Merthyr Tydfil is currently defending a number of knotweed claims in the County Court, which it says is placing a strain on its limited financial resources.
Iain Wightwick, a barrister at Unity Street Chambers who is representing the council in the case (led by Michel Kallipetis KC), said the local authority will argue that people making relatively low-value claims against public authorities should be required to exhaust any internal complaints process before they engage in litigation, including following any relevant Pre-Action Protocol".
He added that although the case is a knotweed claim, the principle is the same for all claims against publicly funded organisations.
Andrews J described the issue at hand as: "[Concerning] whether a claimant who unreasonably refuses to engage in ADR in breach of the requirements of the Practice Direction (Pre-Action Conduct and Protocols) can be precluded from bringing or advancing a claim in court."
She noted that the court will need to consider whether, and if so, to what extent, the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 is affected by the Pre-Action Conduct and Protocols, particularly paragraph 15, which came into force in 2015.
The Court of Appeal concluded in Halsey v Milton Keynes General NHS Trust that "if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it".
Paragraph 15 of the 'Practice direction – pre-action conduct and protocols' states:
Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
- the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
- sanctions are to be applied.
As part of her decision to accept the transfer up of the appeal, Andrews J said the stay on the other proceedings the council is handling should remain in place, pending the resolution of the appeal, rather than that there should be an expedited hearing of the appeal. This is, in part, to allow organisations to make submissions.
The appeal follows the dismissal of an application by the claimant for permission to appeal the decision of the County Court at Bristol in Hockett v Bristol City Council.
Describing the housing disrepair claim, in which Bristol Council instructed him, Wightwick said: "[The] court held that pre-action disclosure applications should be dismissed if the claimant hasn't tried using a subject access request and has rejected cost-free ADR through the complaints process."
The judge rejected the idea that claimants could ignore paragraph 4 of the Pre-action Protocol on Housing Disrepair (as it then was), which concerns ADR, and proceed with litigation instead, Wightwick noted.
Adam Carey
