The received wisdom in English law was that compelling unwilling parties to mediate constituted an unlawful fetter on their right of access to the court under Article 6 of the ECHR. This view, cemented by the judgment of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, has now been overturned.
In DKH Retail Limited v City Football Group Limited [2024] EWHC 3231 (Ch), Miles J observed that the landscape had been transformed by two recent developments: the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and the subsequent amendments to CPRs (at [29]–[30] in DKH).
The Fallacy of Halsey
In Churchill, Sir Geoffrey Vos MR exposed the central fallacy of Halsey: its reliance on the ECtHR decision in Deweer v Belgium (1980) 2 EHRR 439. Halsey had cited Deweer as authority for the proposition that compulsion violated Article 6. However, the Master of the Rolls clarified that Deweer concerned a waiver of the right to a hearing under threat of business closure. As Sir Geoffrey Vos rightly noted (at [32] in Churchill), there is a fundamental distinction between a permanent waiver of the right to a fair trial and a temporary procedural stay for the purposes of ADR. It is submitted that His Lordship’s reasoning is compelling; the Halsey view that compulsion violates Article 6 conflates a procedural stay with a substantive bar on access to the court.
The shift from Halsey to Churchill represents more than a mere correction of human rights interpretation. It reflects a practical and commercial recognition that the efficient administration of justice requires parties to be ordered to behave rationally.
The New Regime
Consequently, the absolute bar in Halsey has been displaced by a flexible 3-stage proportionality analysis (at [54] in Churchill):
“the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made: (a) does not impair the very essence of the claimant’s right to a fair trial, (b) is made in pursuit of a legitimate aim, and (c) is proportionate to achieving that legitimate aim.”
