Explaining Churchill v Merthyr Tydfil County

Elizabeth England, of Five Paper Chambers, runs through the key points of the latest Court of Appeal Japanese Knotweed case.

The Court of Appeal has this week has considered the case of Churchill v Merthyr Tydfil County Borough Council CA-2022-001778.

In 2015 Mr Churchill purchased a house in Merthyr Tydfil, and according to his claim, noticed in 2016 that he had Japanese Knotweed growing in his garden. By their Defence, Merthyr Tydfil acknowledged that they had variously treated Japanese Knotweed on the land over several years preceding Mr Churchill’s ownership of the property.

In the summer of 2020 Mr Churchill responded to a flyer from a firm of solicitors asking whether he had Japanese Knotweed in his garden to which he responded. In September 2020 his solicitors assisted him to obtain an expert report which confirmed that Japanese Knotweed in his garden was 2-5 years old.

In October 2020, Mr Churchill sent a letter of claim to Merthyr Tydfil CBC (“the Council”) who are the owners of adjoining land which Mr Churchill claimed had allowed Japanese Knotweed to encroach on his land. The letter demanded (1) £25,840.80 for the cost of removing the Japanese Knotweed, (2) £27,500 for diminution of value of his property, and (3) £1,400 for unlawful interference with his land (a total damages claim of £54,740.80). They also sought their costs under a CFA which, at this point, were some £38,000.

In January 2021, the Council responded to Mr Churchill in terms that it did not accept liability for the presence of Japanese Knotweed on Mr Churchill’s land, however, it operated an internal complaints procedure through which the Japanese Knotweed could be treated, without prejudice to its position. It did not accept that legal fees should have been incurred to achieve this result. The Council instigated its Stage 1 internal complaints process.

Mr Churchill thereafter refused to allow the Council’s contractors to enter his land to eradicate the Japanese Knotweed. The Council did not conclude their Stage 1 internal complaints procedure.

In August 2021 Mr Churchill issued a claim against the Council in private nuisance for damages of £42,840.80 resulting from the encroachment of Japanese Knotweed from the Council’s adjoining land, together with an injunction to ensure its eradication.

At the first hearing of the claim, the Council applied for a stay of the claim in order to complete the internal complaints process. The Judge determined that Mr Churchill had acted unreasonably in his pre-action conduct, and determined that the value of the claim was at most worth £9,000 in damages. However, the Judge refused to stay the claim based on a passage in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 by which the the court did not have the power to stay the claim in order to compel Mr Churchill to engage with the internal complaints process. The Judge indicated that, but for Halsey, he would have granted the application for a stay.

The Council appealed and successfully leapfrogged the appeal to the Court of Appeal who invited interveners. The interveners include; the Bar Council, the Law Society, the Civil Mediation Council, the Centre for Effective Dispute Resolution, The Chartered Institute of Arbitrators, the Housing Law Practitioners Association and the Social Housing Law Association.

The questions before the court are;

1. Whether the Judge was right to say that he could not order a stay to compel Mr Churchill to engage in the Council’s internal complaints procedure because of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.

2. Whether the court can lawfully stay a claim to allow the parties to engage in a non-court process.

3. What factors the court should consider when deciding whether to order such a stay, depending on the kind of alternative processes are to be considered in the particular case.

4. Whether the Judge in the instant case should have acceded to the application to stay the claim to compel Mr Churchill to engage in the internal complaints process.

Argument has been heard by the Master of the Rolls, the Lady Chief Justice and Lord Justice Birss over 3 days on 8, 9 and 10 November 2023.

It is hoped by the Council that the Court of Appeal will allow the appeal by determining that Halsey does not prevent a court from ordering a stay and that a court can make such an order to allow parties to engage in ADR, which includes an internal complaints procedure. The court has been invited to provide guidance on how judges should make such a decision.

Elizabeth England of Five Paper Chambers