Court of Appeal to hear dispute over whether claimant should have exhausted council internal complaints process before launching claim

The Court of Appeal will this week (8-10 November) hear an appeal by Merthyr Tydfil County Borough Council in a Japanese knotweed case where the local authority will argue that the claim should be stayed until the claimant has engaged with its internal complaints process.

The case of Churchill (claimant/respondent) v Merthyr Tydfil County Borough Council (defendant/appellant) will be livestreamed from Wednesday, 8 November, to Friday, 10 November.

The Social Housing Law Association (SHLA), the Housing Law Practitioners Association (HLPA, the Law Society, the Bar Council, the Civil Mediation Council, CEDR, and the Chartered Institute of Arbitrators have all been given permission to intervene.

The background to the case, as set out by the Court of Appeal, is that by Appellants Notice sealed on 9 November 2022, the defendant council (D) appeals the order of DDJ Kempton-Rees dated 12 May 2022 sitting in Cardiff County Court.

DDJ Kempton-Rees dismissed two applications:

(1) made by Merthyr Tydfil CBC dated 15 February 2022 seeking a stay of proceedings pending the claimant’s (C’s) engagement in alternative dispute resolution (ADR) via the D’s internal complaints process

(2) made by C dated 24 February 2022 seeking to strike out parts of D’s Defence.

HHJ Harrison granted permission to appeal and ordered the transfer up of the appeal pursuant to CPR 52.23.

Ahead of the hearing, the Court of Appeal said the case is “one of a significant number of Japanese knotweed nuisance cases brought against local authorities alleging that Japanese knotweed has spread from Council land onto private landowners’ property. Said to be a new and expanding type of claim.”

It added that the defendant council argued that the claimant had refused to engage in a form of ADR (D’s internal complaints process), and that the claim should be stayed and the Court should order the claimant to engage.

The council relied on the Practice Direction on Pre-Action Conduct and Protocol and the obligation to consider ADR before commencing proceedings.

In June Local Government Lawyer reported that Merthyr Tydfil was set to 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.

On being granted permission in June this year to intervene, SHLA said: “This case is important for Registered Providers of Social Housing because it concerns the place of Alternative Dispute Resolution (“ADR”) in civil proceedings.

“One specific question is whether ADR, including the exhaustion of an organisation’s internal complaints procedure, should be compulsory before a civil claim can be issued. The issue is particularly pertinent for social landlords who often face claims for disrepair from claimants who do not follow the pre-action protocol before issuing a claim.”

Ahead of the trial, HLPA, which has taken issue with the council's view on "low-value claims", said on X (formerly Twitter) that orders in the appeal refer to issues being relevant to other kinds of cases, including housing cases. “Hence HLPA’s intervention, which was the first in a number of applications to intervene, some successful, some not.”