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[00:00]
A
Foreign.
[00:16]
B
Hello, welcome to another installment of the this Is Housing podcast presented by me, Richard Mahal, the host of the podcast. I'm joined today by some of my wonderful colleagues. Say hello.
[00:31]
C
Hello. Hello.
[00:32]
D
Hello.
[00:33]
B
Everyone sounds very excited to discuss the topic that we are discussing today on this bonus episode, which is the long awaited decision of the Court of Appeal in the case of Churchill and Merthyr Tydville County Borough Council. So let's get straight into it. Is someone in a position to summarize what this case was all about? Dalgette, the floor is yours. Would you be able to as briefly as possible summarise what this case was all about?
[01:07]
A
So Mr. Churchill bought a property in Merthyr Tydfil Council owned the joining land and he says since about 2016, Japanese knotweed encroached from that land onto his own property causing damage, his reductionist value and loss of his personal enjoyment of that property, that land. So Mr. Churchill solicitors sent a letter of claim in October 2020. Council responded to in January 21st and they said, well you should actually use our corporate complaints procedure. And if they he didn't go down that route, issue the claim, they would look to stay it, to pause proceedings and they will be seeking their costs of making the applications and all the costs that they incurred. Mr. Churchill went ahead and just issued the claim and then the council, good to their word, issued an application to stay the proceedings at the first court of the county court, the lower court. The judge found that there's a previous case as a precedent case, case of Halsey and Milton Keynes 2004 and he held that in that case the court said you can't oblige unwilling parties to refer to their disputes to mediation as it would be, it would impose an unacceptable obstruction on their right to access to the court. As a result, their claim to stay was dismissed. And then the council appealed to the Court of Appeal, the Court of Appeal. In this case their main question was whether a court can lawfully order parties who are engaged in court proceedings to engage in a non court based dispute resolution process. It's very wordy, we'll just you refer to as ADR in this podcast. It makes it easier and if they can order a stay to proceedings to engage in adr, what circumstances it should do. So I think that was what the whole case was about. So it's a really interesting case for both tenants and landlords because it will kind of set the tone of what steps need to be taken by a tenant or someone making a complaint of disrepairing a property and whether or not a council, housing association or local authority can force mediation or an alternative dispute resolution before a matter goes to court.
[03:16]
B
Thanks, Dalja. That's really interesting. Does anyone else have any comments, thoughts or analysis that they want to share? Daniel Amandi, this is the first time you're joining us on the podcast. Do you have any thoughts, thoughts about the judgment?
[03:33]
E
Thank you, Richard. It's nice, nice to be here on the, on your podcast.
[03:39]
D
Thank you, Richard, for having me on the podcast.
[03:42]
B
You're most welcome.
[03:44]
D
I think there are a number of issues with the Court of Appeal regarding this case. The Court of Appeal, they decided that you can lawfully stay proceedings. However, they didn't lay down fixed principles as to how to determine whether proceedings should be stayed or to order parties to engage in adr.
[04:05]
B
Daniel, anything to add?
[04:06]
E
It's almost one of these slightly unhelpful Court of Appeal decisions in that the answer is it depends on the facts of each case. And when something goes all the way to the Court of Appeal, it'd be very helpful to get more clarity in terms of what that actually means. And this decision, in some respects is a continuation of status quo in as far as judges have been able to encourage and have a general ability to stay proceedings if they think that ADR is the appropriate route to at least try out. And if the parties can agree to do that, then I've had cases of mine stayed for the parties to attempt to agree adr, and the judge in question has thought it was a good idea to allow that time for the parties to see if anything can be agreed outside of court. It hasn't worked in that occasion, but judges have generally been able to, depending on the facts of the case, give opportunities for adr. And clearly there's a general preference, and I think there has been for some time, that if parties can resolve their matters outside of court, then they should, and if they refuse to do so, they need to give a good reason as to why they're refusing to do so. So I'm not sure this Court of Appeal decision is entirely as helpful as it could be, given that the response is it depends on the facts of the case.
[05:39]
D
I agree with you, Daniel. Since the decision in Halsey, there's been a real move towards ADR in civil proceedings. And I think Churchill marks a significant development in furthering the trend.
[05:51]
E
Yes, yeah, a general preference for adr, but equally without a huge amount of steerage as to when the court will force the issue and when they won't, and to say that it will depend on the facts of the case is almost sort of simply a continuation of the status quo, albeit a continuation of the developing trend that prefers ADR as far as possible.
[06:17]
B
So Manjinder, what do you think the implications or some of the potential implications of this judgment are for our clients, for our clients who come to us who are experiencing disrepair?
[06:29]
F
I think this judgment will not have a major impact on the disrepair clients that we currently assist with. We do recommend ADR in any event and it's part of our pre action protocol letter when we serve that to the landlords. I think the mistake landlords are going to make is this judgment will give them the right to make an application to stay the claim in order for the tenants to comply with their in house complaints procedure. And I think that's the mistake most of the landlords are going to make. But then it's up to us as a solicitors lawyers to establish why ADR may be refused. Majority of our clients prefer to resolve the dispute without going to court. A majority of our cases do settle before issuing. It's only in a small amount of cases, for my experience that I've dealt with with disrepair cases where we've had two issues because the landlords refused to carry out the remedial work and is an urgent case for the client. I've not recently had any stay applications prior to this case, but I am, I do believe that there will be a lot more cases or even a lot of landlords asking our clients to follow their internal complaints policy before issuing. But I think the landlords need to realise that their complaints policy is not a resolution and I think any policies that the landlords have need to be efficient and effective to the case. So if it's a disrepair matter, the complaints policy needs to be reasonable and I'm not sure most of the especially social landlords, local authorities, their policies are effective. What do you guys think?
[08:17]
D
Manjinda, I agree with your point of view. I think if there are ADR procedures in place, such complaint policies in place, these should be thoroughly considered by the councils and if appropriate, these avenues should be exhausted before proceedings are issued. Anybody else, what do you think of ASR?
[08:36]
C
Yeah, thank you Amandeep. Yeah, definitely. ADR can be a useful resource. I mean I've had it for one of my cases recently as well where parties do get together and they're trying to find a suitable outcome which prevents them going to trial and I mean it can be a good thing. But it's important to note that with ADR or any form of mediation, it can be quite stressful, it can be compact and quite rushed because they can try to compress it in one day or over a short number of days and you're trying to reach a resolution as quickly as possible. So for some matters, yes, it may be suitable, but in others, it might not be. Especially if the people that we represent or any party has got some sort of mental health condition is vulnerable, it might not be suitable for them. It might exacerbate their existing conditions as well.
[09:34]
F
So vase a case. Who is referring to, I'm assuming it's mediation you attended with your client?
[09:41]
C
Yes, it was mediation that we attended.
[09:43]
F
Okay, so mediation, as you know, is a form of adr. I have found attending mediation with clients who have mental health condition or anxiety, depression, it has a, it has a major impact on, on their health and especially when you're cramming in the whole case into one day and trying to settle. And I find that a lot of pressure is put on the clients to try and settle. I mean, that's how they feel. Did you find that having the same impact on your client during mediation?
[10:13]
C
Yes, quite a lot, actually. So with, with, with my client being in mediation, she, she wasn't even too keen on it. I think there was a lot of information that was being put to her and it brought back a lot of unpleasant memories. And yes, she engaged as much as she could, but again, she wanted more time to deliberate over any offers that were being made, any proposals being put forward to bring the matter to a close. And sometimes again, because mediation can be so time restrictive, it just didn't help her position at all and unfortunately not a lot of great success there.
[10:55]
B
So, Amandeep, how important is ADR moving forward following this decision at the Court of Appeal?
[11:03]
D
There is clearly a pressure to engage in some form of ADR at the earliest appropriate opportunity. And it is important. However, it needs to be on equal footing and has to be a balancing exercise.
[11:16]
E
Yeah, I think the first issue is the Court of Appeal case. I know there's the Bar Council guidelines, but when I was saying earlier about it's almost like a continuation of the status quo, do you think that's, do you think, is that something that you agree with as well, or do you think that's not quite. Because courts have already been able to encourage. And all the Court of Appeal has said is, yeah, okay, we can force it, but it depends on the facts of the case. But it's always depends on the facts. I agree. And you know what? Council really has an internal complaints procedure that's really good enough. Is it fast enough? Does it actually resolve the issues? And on the issue of damages, my local council, they've just introduced sort of a new sort of standard, sort of payment scheme. So if you've got this type of disrepair, then they'll give you sort of £100 or something. And that's all part of their internal process, but it's just a way of essentially fobbing tenants off. A lot of these internal processes are essentially a way of councils trying to fob off tenants with a lower amount of compensation than, for example, they might be able to obtain through the courts. The complaints procedure. Do we know of any complaints procedures that actually work effectively and efficiently and quickly enough to resolve things in a manner that's appropriate? Do any local authorities really have a complaints procedure that's fit for purpose, that would allow. Allow them to say, we're going to rely on this entirely now? And what they will try and do, and what they have tried to do in the past sometimes is essentially exclude the tenant's ability to reach for courts to resolve their matters. And I was assisting one of our other colleagues with one of his cases a few months ago, and that's exactly what the council was trying to do. They were trying to say, and this is. This is well before this judgment, they were trying to say, no, you can't issue, because you need to go through our internal complaints procedure first. We have this process. It's not fit for purpose, but we have this process and you have to follow it. You can't just go off to court. So they were trying to limit and exclude the general jurisdiction of the courts and the ability of the tenants to access that by pigeonholing the tenant into only following the complaints procedure. And that's not right. It limits the tenant in every way. If the council had a perfect complaints procedure which was efficient and effective, then maybe it would be a different situation. But I don't know how many councils actually have that type of internal complaints procedure that is efficient and effective. And usually councils, they only start taking action. They only start taking notice once you send letters to their legal departments by way of court proceedings. It's only at that point that the councils actually start rolling into action. And it's understandable from the council's point of view, because they're so overworked and they're so underfunded and they've got so many duties that are placed on them that of course, they try and gatekeep the problems that they're Dealing with, of course, they try and delay things, you know, if they're not actually being forced to deal with it, they've got so much on, it's understandable, the way they behave. But equally for our tenants, for their tenants to enforce their rights, that whole context requires the involvement of the court often. And I think that's what we see in the cases that we take on and it's what we see in terms of how the council responds to tenants or to us.
[15:16]
F
No, I totally agree with you, Daniel. That was exactly my thoughts. And I think the problem with the in house complaints procedures is exactly what you said, Daniel, is most of the policies that I've seen from council and social landlords are not going to be effective. But we also need to understand this judgment, which landlords might refer to in their responses is all about post issue. It's nothing about pre issue. So when we send a pre action protocol letter for disrepair, for instance, this case really wouldn't have a lot of impact on disrepair. So I'm not quite sure what the real point of this case was. That's just my opinion. And I believe the council did not even receive obtained costs. So it's a really expensive way just to affirm that the courts have the right to, you know, have their discretion,
[16:13]
E
which is just so.
[16:16]
F
I'm not quite sure. I believe, I mean, my thoughts are maybe the council of social landlords might start now amending their in house complaints procedure to address some of the issues that were raised in this case. So their complaints policies procedures are a little bit more effective. I'm not quite sure, so that'd be quite interesting to see. And I also think the landlords, they shouldn't make a mistake of assuming a complaints response. It's the same as a resolution of a potential claim. Because I understand the ombudsman, the housing Ombudsman has directed social landlords to treat a letter of claim, a pre action protocol, as a complaint under the complaint scheme, as well as engaging with the pre action protocol. And from experience, I find council social landlords assume when we send a pre action protocol and they, you know, demand our clients and tenants to follow the in house complaints procedure, they think that's a resolution. My concern is what if these tenants are not legally represented? What if they've not received legal advice and they attend this, some type of ADR or a meeting, a mediation, what impact do you think that would have?
[17:30]
G
It may be the case that tenants may not understand the holistic approach of what ADR is, what they're entering into. And as a result of that, they may not have full comprehensive advice available to them. So they don't essentially know what their rights are, what they should and should not essentially do. That's placing them at a disadvantage and therefore could be very prejudicial to them.
[17:56]
F
And also, I think we should, you know, we should also let our audience know that if they are suffering from disrepair and the landlords or social landlord or council have asked you to attend mediation or attend their offices to try to negotiate, it is important or is advisable that you do obtain some legal advice. Because, you know, in circumstances that, you know, I've encountered clients in situations where the local authorities offered them some form of compensation, damages, which doesn't really reflect the. What the client went through or the disrepair they suffered. But for someone in a position where they may not be able to afford their rent or cost of living has impacted their financial position, £500 is a lot of money. But essentially, as lawyers, we might advise that this case might be worth a lot more. So what do you think? Because as we all know, legal aid has impacted people obtaining legal advice in disrepair cases. What do you think?
[19:01]
A
That's literally one of the issues that we've always faced. Legal aid has been cut. So previously, when they might have got assistance to rock up to a local authority, a social landlord or whatever, to get support, they won't have that same access now. So they kind of. It's a lot more limited because of the decline in legal aid for those sort of matters. I think that's a very, very valid point. Going back to what Daniel said, really, of any sort of form of ADR would be great for them because it would delay matters. But as the corporate people said, it's not going to be reasonable for you to keep on delaying the matters. It's all going to depend on the level of disrepair and the policies that social landlords have. Imagine, he said, the council's social landlords might update their policies. I think a lot of people would welcome it.
[19:44]
F
Yeah, definitely.
[19:45]
A
I think it's so out of date. I think all these things that have just been overlooked and just been stagnant, that when they go to these sort of ADR sort of meetings, whatever they might be, they're kind of at a loss. A lot of things can be told to them and they wouldn't know any better. And without that sort of legal representation, without the support of legal Aid, you're just. It's going to be really hard for them. So engaging in ADR while It sounds brilliant. People are kind of reliant on what they're being told and they can be led astray. You know, I mean, no disrespect to any, like council officers or whatever, but. Or local social housing officers, whatever, but they can be led astray because they want to. They want to reach an outcome that's beneficial for them as much as they may want it for the. For their tenant. So it's in real practice, Would it if someone's asked, I suppose, an open question, if someone is told that you have to engage in adr, do you think they'd have to do it just to comply with or not to fall foul of this new judgment?
[20:39]
D
I would go even further and say that with ADR and without legal representation, tenants are forced to accept deals or agreements which they don't understand, so. So it's unfair on tenants.
[20:52]
F
Also, I think the question is, would legal aid be available if a tenant has, you know, approaches us or approaches a housing solicitor about attending a form of adr? Is legal aid going to be available to attend this ADR mediation pre issue?
[21:11]
E
I think so long as the disrepair's sufficiently serious to fall in scope for the legal help scheme, then yes, I think so.
[21:22]
G
Further to what you said, Daniel, I do think also another consideration would be if a form of ADR or media, for example, mediation, finding appropriate experts to actually agree to legal aid rates to assist with the cases. It may be difficult, it may be easy, it's just finding someone who's actually agreeable to these rates.
[21:43]
F
That's a. That's a really good point as well, Rita. I mean, we've struggled to find mediators who are willing to accept legal aid rates which haven't increased for God knows how many years. But that's another topic for another day, I believe.
[21:58]
B
Well, that was a really interesting discussion and I think we, we all consider it and we would advise any prospective clients and tenants to seriously consider engaging in adr, particularly at an early stage of any disrepair complaint or dispute. Well, it will certainly anyway, be interesting to see after this judgment whether social landlords and how many social landlords are make applications to stay any proceedings in order for there to be some ADR process for the parties to undertake. I suppose we'll just have to. We'll just have to wait and see. Anyway, it's been, as I say, a very interesting episode and until the next one, this has been the Duncan Lewis Housing Law Podcast, presented to you by Rich Mahal and the team of expert solicitors in the Housing department at Duncan Lewis. Bye bye.
[23:03]
A
Sa.

Summary7 min read

Podcast Summary: "Mediate or Litigate – Navigating Disrepair Disputes (Churchill vs. Merthyr Tydfil)"

This is Housing Podcast
Host: Richard Mahal (Duncan Lewis Housing Team)
Date: February 16, 2024

Episode Overview

This episode dives into the recent Court of Appeal decision in Churchill v. Merthyr Tydfil County Borough Council, a landmark housing law case about whether courts can order parties in disrepair disputes to attempt mediation or alternative dispute resolution (ADR) before proceeding with litigation. The team explores the background of the case, its implications for tenants, landlords, and litigation strategy, and raises practical concerns around access to justice, the role of internal complaints procedures, the utility and challenges of ADR, and the critical need for proper legal guidance.

Key Discussion Points & Insights

1. Case Summary: What is Churchill v. Merthyr Tydfil?

[01:06 – 03:15]

Background:
- Mr. Churchill owned property next to land owned by the council. Since 2016, Japanese knotweed encroached onto his property from the council's land, causing damage and loss of value.
- Churchill sent a letter of claim in 2020; the council responded, advising him to use their internal complaints procedure, warning they would seek a stay and costs if he went straight to court.
- Churchill issued proceedings regardless. The council applied for a stay.
Court Rulings:
- The county court, relying on Halsey v. Milton Keynes (2004), refused to stay the proceedings, as that precedent indicated parties could not be compelled to mediate.
- The council appealed, prompting the Court of Appeal to consider if courts can lawfully order parties into ADR and under what circumstances.
Significance:
- Sets precedent for both tenants and landlords on whether mediation or ADR can be required before litigation.

Notable Quote:

"The main question was whether a court can lawfully order parties...to engage in a non-court-based dispute resolution process. ...It will kind of set the tone of what steps need to be taken by a tenant or someone making a complaint of disrepair..."
— Dalgette [01:40]

2. The Court of Appeal Judgment: Unhelpful or a Continued Trend?

[03:33 – 05:50]

Key Takeaway:
- The Court of Appeal confirmed courts can lawfully stay proceedings for parties to attempt ADR, but did not provide firm guidelines—it remains fact-specific.
- Adds judicial support for encouraging ADR but doesn’t impose a requirement in every case.

Notable Quote:

"It's almost one of these slightly unhelpful Court of Appeal decisions in that the answer is: it depends on the facts of each case."
— Daniel Amandi [04:06]

Judges continue to have wide discretion to encourage ADR, and parties who refuse must provide good reasons.
General trend: Resolution outside of court, if possible, is preferred.

3. Practical Implications for Disrepair Clients

[06:16 – 11:03]

For most tenants, the case will have little impact as ADR is already standard practice before court.
Landlords’ Mistake:
- Misconstruing the judgment as a license to force all tenants into internal complaints procedures before litigation.
- Internal complaints policies often aren't actual resolutions, especially if not efficient, effective, or fit-for-purpose.
Internal complaints must be “reasonable and proportionate,” particularly for urgent cases; many social landlords’ policies are lacking.

Notable Quote:

"Landlords need to realise that their complaints policy is not a resolution and...needs to be efficient and effective to the case."
— Manjinder [07:50]

4. ADR in Practice: Benefits, Drawbacks, and Vulnerable Clients

[08:36 – 10:55]

ADR can be valuable for swift and amicable resolution, sparing both sides the expense and delay of court.
Downsides for the Vulnerable:
- Mediation can be rushed and stressful, especially problematic for clients with anxiety, depression, or other vulnerabilities.
- Time pressure and lack of legal advice can lead clients to accept unfavorable settlements.

Notable Quotes:

"It can be quite stressful, it can be compact and quite rushed because they can try to compress it in one day...If the people that we represent...has got some sort of mental health condition, it might not be suitable for them."
— Vase [08:36]

"...pressure is put on the clients to try and settle. I mean, that's how they feel."
— Manjinder [09:43]

5. Internal Complaints Procedures: Are They Fit for Purpose?

[11:16 – 16:13]

Most local authority complaint procedures are not fit for resolving disrepair claims efficiently or fairly.
Councils sometimes use complaints procedures to "gatekeep" and delay tenant access to the courts—especially problematic if these procedures are slow or non-responsive.
Landlords may now update their procedures in light of this judgment, but the risk is that they confuse a complaint response with an actual resolution.

Notable Quotes:

"A lot of these internal processes are essentially a way of councils trying to fob off tenants with a lower amount of compensation than...through the courts."
— Daniel [13:30]

"The mistake most landlords are going to make is this judgment will give them the right to make an application to stay the claim in order for the tenants to comply..."
— Manjinder [06:44]

6. The Importance of Legal Advice & Legal Aid

[17:30 – 21:57]

Key Point: Tenants vulnerable without legal advice may accept inadequate settlements or misunderstand their rights in ADR.
With cuts to legal aid, access to help is limited. Tenants may not realize the value of their claim or how the process could disadvantage them.
Lawyers recommend: Seek legal advice before entering any mediation or internal complaints meetings, especially as offers from landlords may be far less than the true value of damages.

Notable Quotes:

"...in situations where a local authority's offered...compensation...for someone...impacted...cost of living, £500 is a lot...But...this case might be worth a lot more."
— Manjinder [17:57]

"Legal aid has been cut. So previously, when they might have got assistance...they won't have that same access now."
— Dalgette [19:00]

7. Open Questions & Risks Moving Forward

[19:45 – End]

If tenants must engage in ADR, are they forced to do so just to comply with the judgment?
Without legal representation, ADR may result in unfair agreements for tenants.
Legal aid is often not available for ADR, especially pre-issue; even when technically available, it is hard to find mediators or experts willing to accept the meager rates.

Notable Quotes:

"With ADR and without legal representation, tenants are forced to accept deals or agreements which they don't understand, so it's unfair on tenants."
— Amandeep [20:38]

"...we've struggled to find mediators who are willing to accept legal aid rates which haven't increased for God knows how many years."
— Rita [21:43]

Conclusion & Practical Guidance

[21:57 – 22:55]

Parties in disrepair disputes should seriously consider ADR at an early stage, but be aware of potential pitfalls.
Landlords may be more likely to request stays for ADR, but tenants should not rely on internal complaints procedures as sufficient on their own.
Seek legal advice before entering ADR or responding to proposals from landlords/social landlords.
Watch for possible changes in internal complaints processes as landlords respond to this new case law.

Most Memorable Quotes

"It's almost one of these slightly unhelpful Court of Appeal decisions in that the answer is it depends on the facts of each case." — Daniel [04:06]
"Landlords need to realise that their complaints policy is not a resolution and...needs to be efficient and effective to the case." — Manjinder [07:50]
"A lot of these internal processes are essentially a way of councils trying to fob off tenants with a lower amount of compensation..." — Daniel [13:30]
"With ADR and without legal representation, tenants are forced to accept deals or agreements which they don't understand, so it's unfair on tenants." — Amandeep [20:38]

Essential Timestamps

01:06 – Dalgette summarizes the Churchill case
03:33 – Daniel and Amandeep analyze the Court of Appeal's reasoning and its limitations
06:29 – Implications for disrepair clients and ADR
08:36 – Discussion on mediation's impact on vulnerable clients
11:16 – Critique of internal complaints procedures
17:30 – The challenges and importance of legal advice, especially given legal aid cuts
20:38 – Undue pressure and risks for unrepresented tenants in ADR

Final Thought

While the Churchill v. Merthyr Tydfil decision nudges parties toward ADR in disrepair disputes, it leaves considerable discretion and practical challenges. Tenants and practitioners must stay alert to the limitations of internal complaints systems and always prioritize informed legal advice before engaging in mediation or settlement.

Loading summary

Transcript41 lines

[00:00]
A
Foreign.
[00:16]
B
Hello, welcome to another installment of the this Is Housing podcast presented by me, Richard Mahal, the host of the podcast. I'm joined today by some of my wonderful colleagues. Say hello.
[00:31]
C
Hello. Hello.
[00:32]
D
Hello.
[00:33]
B
Everyone sounds very excited to discuss the topic that we are discussing today on this bonus episode, which is the long awaited decision of the Court of Appeal in the case of Churchill and Merthyr Tydville County Borough Council. So let's get straight into it. Is someone in a position to summarize what this case was all about? Dalgette, the floor is yours. Would you be able to as briefly as possible summarise what this case was all about?
[01:07]
A
So Mr. Churchill bought a property in Merthyr Tydfil Council owned the joining land and he says since about 2016, Japanese knotweed encroached from that land onto his own property causing damage, his reductionist value and loss of his personal enjoyment of that property, that land. So Mr. Churchill solicitors sent a letter of claim in October 2020. Council responded to in January 21st and they said, well you should actually use our corporate complaints procedure. And if they he didn't go down that route, issue the claim, they would look to stay it, to pause proceedings and they will be seeking their costs of making the applications and all the costs that they incurred. Mr. Churchill went ahead and just issued the claim and then the council, good to their word, issued an application to stay the proceedings at the first court of the county court, the lower court. The judge found that there's a previous case as a precedent case, case of Halsey and Milton Keynes 2004 and he held that in that case the court said you can't oblige unwilling parties to refer to their disputes to mediation as it would be, it would impose an unacceptable obstruction on their right to access to the court. As a result, their claim to stay was dismissed. And then the council appealed to the Court of Appeal, the Court of Appeal. In this case their main question was whether a court can lawfully order parties who are engaged in court proceedings to engage in a non court based dispute resolution process. It's very wordy, we'll just you refer to as ADR in this podcast. It makes it easier and if they can order a stay to proceedings to engage in adr, what circumstances it should do. So I think that was what the whole case was about. So it's a really interesting case for both tenants and landlords because it will kind of set the tone of what steps need to be taken by a tenant or someone making a complaint of disrepairing a property and whether or not a council, housing association or local authority can force mediation or an alternative dispute resolution before a matter goes to court.
[03:16]
B
Thanks, Dalja. That's really interesting. Does anyone else have any comments, thoughts or analysis that they want to share? Daniel Amandi, this is the first time you're joining us on the podcast. Do you have any thoughts, thoughts about the judgment?
[03:33]
E
Thank you, Richard. It's nice, nice to be here on the, on your podcast.
[03:39]
D
Thank you, Richard, for having me on the podcast.
[03:42]
B
You're most welcome.
[03:44]
D
I think there are a number of issues with the Court of Appeal regarding this case. The Court of Appeal, they decided that you can lawfully stay proceedings. However, they didn't lay down fixed principles as to how to determine whether proceedings should be stayed or to order parties to engage in adr.
[04:05]
B
Daniel, anything to add?
[04:06]
E
It's almost one of these slightly unhelpful Court of Appeal decisions in that the answer is it depends on the facts of each case. And when something goes all the way to the Court of Appeal, it'd be very helpful to get more clarity in terms of what that actually means. And this decision, in some respects is a continuation of status quo in as far as judges have been able to encourage and have a general ability to stay proceedings if they think that ADR is the appropriate route to at least try out. And if the parties can agree to do that, then I've had cases of mine stayed for the parties to attempt to agree adr, and the judge in question has thought it was a good idea to allow that time for the parties to see if anything can be agreed outside of court. It hasn't worked in that occasion, but judges have generally been able to, depending on the facts of the case, give opportunities for adr. And clearly there's a general preference, and I think there has been for some time, that if parties can resolve their matters outside of court, then they should, and if they refuse to do so, they need to give a good reason as to why they're refusing to do so. So I'm not sure this Court of Appeal decision is entirely as helpful as it could be, given that the response is it depends on the facts of the case.
[05:39]
D
I agree with you, Daniel. Since the decision in Halsey, there's been a real move towards ADR in civil proceedings. And I think Churchill marks a significant development in furthering the trend.
[05:51]
E
Yes, yeah, a general preference for adr, but equally without a huge amount of steerage as to when the court will force the issue and when they won't, and to say that it will depend on the facts of the case is almost sort of simply a continuation of the status quo, albeit a continuation of the developing trend that prefers ADR as far as possible.
[06:17]
B
So Manjinder, what do you think the implications or some of the potential implications of this judgment are for our clients, for our clients who come to us who are experiencing disrepair?
[06:29]
F
I think this judgment will not have a major impact on the disrepair clients that we currently assist with. We do recommend ADR in any event and it's part of our pre action protocol letter when we serve that to the landlords. I think the mistake landlords are going to make is this judgment will give them the right to make an application to stay the claim in order for the tenants to comply with their in house complaints procedure. And I think that's the mistake most of the landlords are going to make. But then it's up to us as a solicitors lawyers to establish why ADR may be refused. Majority of our clients prefer to resolve the dispute without going to court. A majority of our cases do settle before issuing. It's only in a small amount of cases, for my experience that I've dealt with with disrepair cases where we've had two issues because the landlords refused to carry out the remedial work and is an urgent case for the client. I've not recently had any stay applications prior to this case, but I am, I do believe that there will be a lot more cases or even a lot of landlords asking our clients to follow their internal complaints policy before issuing. But I think the landlords need to realise that their complaints policy is not a resolution and I think any policies that the landlords have need to be efficient and effective to the case. So if it's a disrepair matter, the complaints policy needs to be reasonable and I'm not sure most of the especially social landlords, local authorities, their policies are effective. What do you guys think?
[08:17]
D
Manjinda, I agree with your point of view. I think if there are ADR procedures in place, such complaint policies in place, these should be thoroughly considered by the councils and if appropriate, these avenues should be exhausted before proceedings are issued. Anybody else, what do you think of ASR?
[08:36]
C
Yeah, thank you Amandeep. Yeah, definitely. ADR can be a useful resource. I mean I've had it for one of my cases recently as well where parties do get together and they're trying to find a suitable outcome which prevents them going to trial and I mean it can be a good thing. But it's important to note that with ADR or any form of mediation, it can be quite stressful, it can be compact and quite rushed because they can try to compress it in one day or over a short number of days and you're trying to reach a resolution as quickly as possible. So for some matters, yes, it may be suitable, but in others, it might not be. Especially if the people that we represent or any party has got some sort of mental health condition is vulnerable, it might not be suitable for them. It might exacerbate their existing conditions as well.
[09:34]
F
So vase a case. Who is referring to, I'm assuming it's mediation you attended with your client?
[09:41]
C
Yes, it was mediation that we attended.
[09:43]
F
Okay, so mediation, as you know, is a form of adr. I have found attending mediation with clients who have mental health condition or anxiety, depression, it has a, it has a major impact on, on their health and especially when you're cramming in the whole case into one day and trying to settle. And I find that a lot of pressure is put on the clients to try and settle. I mean, that's how they feel. Did you find that having the same impact on your client during mediation?
[10:13]
C
Yes, quite a lot, actually. So with, with, with my client being in mediation, she, she wasn't even too keen on it. I think there was a lot of information that was being put to her and it brought back a lot of unpleasant memories. And yes, she engaged as much as she could, but again, she wanted more time to deliberate over any offers that were being made, any proposals being put forward to bring the matter to a close. And sometimes again, because mediation can be so time restrictive, it just didn't help her position at all and unfortunately not a lot of great success there.
[10:55]
B
So, Amandeep, how important is ADR moving forward following this decision at the Court of Appeal?
[11:03]
D
There is clearly a pressure to engage in some form of ADR at the earliest appropriate opportunity. And it is important. However, it needs to be on equal footing and has to be a balancing exercise.
[11:16]
E
Yeah, I think the first issue is the Court of Appeal case. I know there's the Bar Council guidelines, but when I was saying earlier about it's almost like a continuation of the status quo, do you think that's, do you think, is that something that you agree with as well, or do you think that's not quite. Because courts have already been able to encourage. And all the Court of Appeal has said is, yeah, okay, we can force it, but it depends on the facts of the case. But it's always depends on the facts. I agree. And you know what? Council really has an internal complaints procedure that's really good enough. Is it fast enough? Does it actually resolve the issues? And on the issue of damages, my local council, they've just introduced sort of a new sort of standard, sort of payment scheme. So if you've got this type of disrepair, then they'll give you sort of £100 or something. And that's all part of their internal process, but it's just a way of essentially fobbing tenants off. A lot of these internal processes are essentially a way of councils trying to fob off tenants with a lower amount of compensation than, for example, they might be able to obtain through the courts. The complaints procedure. Do we know of any complaints procedures that actually work effectively and efficiently and quickly enough to resolve things in a manner that's appropriate? Do any local authorities really have a complaints procedure that's fit for purpose, that would allow. Allow them to say, we're going to rely on this entirely now? And what they will try and do, and what they have tried to do in the past sometimes is essentially exclude the tenant's ability to reach for courts to resolve their matters. And I was assisting one of our other colleagues with one of his cases a few months ago, and that's exactly what the council was trying to do. They were trying to say, and this is. This is well before this judgment, they were trying to say, no, you can't issue, because you need to go through our internal complaints procedure first. We have this process. It's not fit for purpose, but we have this process and you have to follow it. You can't just go off to court. So they were trying to limit and exclude the general jurisdiction of the courts and the ability of the tenants to access that by pigeonholing the tenant into only following the complaints procedure. And that's not right. It limits the tenant in every way. If the council had a perfect complaints procedure which was efficient and effective, then maybe it would be a different situation. But I don't know how many councils actually have that type of internal complaints procedure that is efficient and effective. And usually councils, they only start taking action. They only start taking notice once you send letters to their legal departments by way of court proceedings. It's only at that point that the councils actually start rolling into action. And it's understandable from the council's point of view, because they're so overworked and they're so underfunded and they've got so many duties that are placed on them that of course, they try and gatekeep the problems that they're Dealing with, of course, they try and delay things, you know, if they're not actually being forced to deal with it, they've got so much on, it's understandable, the way they behave. But equally for our tenants, for their tenants to enforce their rights, that whole context requires the involvement of the court often. And I think that's what we see in the cases that we take on and it's what we see in terms of how the council responds to tenants or to us.
[15:16]
F
No, I totally agree with you, Daniel. That was exactly my thoughts. And I think the problem with the in house complaints procedures is exactly what you said, Daniel, is most of the policies that I've seen from council and social landlords are not going to be effective. But we also need to understand this judgment, which landlords might refer to in their responses is all about post issue. It's nothing about pre issue. So when we send a pre action protocol letter for disrepair, for instance, this case really wouldn't have a lot of impact on disrepair. So I'm not quite sure what the real point of this case was. That's just my opinion. And I believe the council did not even receive obtained costs. So it's a really expensive way just to affirm that the courts have the right to, you know, have their discretion,
[16:13]
E
which is just so.
[16:16]
F
I'm not quite sure. I believe, I mean, my thoughts are maybe the council of social landlords might start now amending their in house complaints procedure to address some of the issues that were raised in this case. So their complaints policies procedures are a little bit more effective. I'm not quite sure, so that'd be quite interesting to see. And I also think the landlords, they shouldn't make a mistake of assuming a complaints response. It's the same as a resolution of a potential claim. Because I understand the ombudsman, the housing Ombudsman has directed social landlords to treat a letter of claim, a pre action protocol, as a complaint under the complaint scheme, as well as engaging with the pre action protocol. And from experience, I find council social landlords assume when we send a pre action protocol and they, you know, demand our clients and tenants to follow the in house complaints procedure, they think that's a resolution. My concern is what if these tenants are not legally represented? What if they've not received legal advice and they attend this, some type of ADR or a meeting, a mediation, what impact do you think that would have?
[17:30]
G
It may be the case that tenants may not understand the holistic approach of what ADR is, what they're entering into. And as a result of that, they may not have full comprehensive advice available to them. So they don't essentially know what their rights are, what they should and should not essentially do. That's placing them at a disadvantage and therefore could be very prejudicial to them.
[17:56]
F
And also, I think we should, you know, we should also let our audience know that if they are suffering from disrepair and the landlords or social landlord or council have asked you to attend mediation or attend their offices to try to negotiate, it is important or is advisable that you do obtain some legal advice. Because, you know, in circumstances that, you know, I've encountered clients in situations where the local authorities offered them some form of compensation, damages, which doesn't really reflect the. What the client went through or the disrepair they suffered. But for someone in a position where they may not be able to afford their rent or cost of living has impacted their financial position, £500 is a lot of money. But essentially, as lawyers, we might advise that this case might be worth a lot more. So what do you think? Because as we all know, legal aid has impacted people obtaining legal advice in disrepair cases. What do you think?
[19:01]
A
That's literally one of the issues that we've always faced. Legal aid has been cut. So previously, when they might have got assistance to rock up to a local authority, a social landlord or whatever, to get support, they won't have that same access now. So they kind of. It's a lot more limited because of the decline in legal aid for those sort of matters. I think that's a very, very valid point. Going back to what Daniel said, really, of any sort of form of ADR would be great for them because it would delay matters. But as the corporate people said, it's not going to be reasonable for you to keep on delaying the matters. It's all going to depend on the level of disrepair and the policies that social landlords have. Imagine, he said, the council's social landlords might update their policies. I think a lot of people would welcome it.
[19:44]
F
Yeah, definitely.
[19:45]
A
I think it's so out of date. I think all these things that have just been overlooked and just been stagnant, that when they go to these sort of ADR sort of meetings, whatever they might be, they're kind of at a loss. A lot of things can be told to them and they wouldn't know any better. And without that sort of legal representation, without the support of legal Aid, you're just. It's going to be really hard for them. So engaging in ADR while It sounds brilliant. People are kind of reliant on what they're being told and they can be led astray. You know, I mean, no disrespect to any, like council officers or whatever, but. Or local social housing officers, whatever, but they can be led astray because they want to. They want to reach an outcome that's beneficial for them as much as they may want it for the. For their tenant. So it's in real practice, Would it if someone's asked, I suppose, an open question, if someone is told that you have to engage in adr, do you think they'd have to do it just to comply with or not to fall foul of this new judgment?
[20:39]
D
I would go even further and say that with ADR and without legal representation, tenants are forced to accept deals or agreements which they don't understand, so. So it's unfair on tenants.
[20:52]
F
Also, I think the question is, would legal aid be available if a tenant has, you know, approaches us or approaches a housing solicitor about attending a form of adr? Is legal aid going to be available to attend this ADR mediation pre issue?
[21:11]
E
I think so long as the disrepair's sufficiently serious to fall in scope for the legal help scheme, then yes, I think so.
[21:22]
G
Further to what you said, Daniel, I do think also another consideration would be if a form of ADR or media, for example, mediation, finding appropriate experts to actually agree to legal aid rates to assist with the cases. It may be difficult, it may be easy, it's just finding someone who's actually agreeable to these rates.
[21:43]
F
That's a. That's a really good point as well, Rita. I mean, we've struggled to find mediators who are willing to accept legal aid rates which haven't increased for God knows how many years. But that's another topic for another day, I believe.
[21:58]
B
Well, that was a really interesting discussion and I think we, we all consider it and we would advise any prospective clients and tenants to seriously consider engaging in adr, particularly at an early stage of any disrepair complaint or dispute. Well, it will certainly anyway, be interesting to see after this judgment whether social landlords and how many social landlords are make applications to stay any proceedings in order for there to be some ADR process for the parties to undertake. I suppose we'll just have to. We'll just have to wait and see. Anyway, it's been, as I say, a very interesting episode and until the next one, this has been the Duncan Lewis Housing Law Podcast, presented to you by Rich Mahal and the team of expert solicitors in the Housing department at Duncan Lewis. Bye bye.
[23:03]
A
Sa.