Page 140 - Solving Housing Disputes

26. The HDS proposal also appears to assume that housing law is static and all
that will be required of the HDS officer will be to apply clearly-established
principles to facts. This is incorrect. The law is constantly developing and
novel points arise frequently. For example, it was only through advocacy and
judicial determinations that vital safeguards such as the ability of occupiers
to rely on Article 8 ECHR were established. Our view is that a lawyer-free
zone, with occasional appeals, will lead to the atrophy of this area of law.

27. Article 6 ECHR: the HDS would in our view be a breach of Article 6 ECHR.
The HDS could not itself satisfy the requirements of Article 6 for “a fair and
public hearing within a reasonable time by an independent and impartial
tribunal established by law”, with judgment pronounced publicly, and it is
appears that the report (properly) accepts this. The argument is made (to the
extent that it is made at all - the discussion is limited to a single footnote) that
Article 6 is not breached because participants in the HDS retain “unfettered
access to the courts should they not agree with the outcome” (footnote 46).

28. The starting point in respect of ADR and Article 6 remains Halsey v Milton
Keynes General NHS trust [2004] EWCA Civ 576, in which the Court stated
that (at para 9):

We heard argument on the question whether the court has power to order
parties to submit their disputes to mediation against their will. It is one thing
to encourage the parties to agree to mediation, even to encourage them in the
strongest terms. It is another to order them to do so. It seems to us that to
oblige truly unwilling parties to refer their disputes to mediation would be to
impose an unacceptable obstruction on their right of access to the court…it
seems to us likely that compulsion of ADR would be regarded as an
unacceptable constraint on the right of access to the court and, therefore, a
violation of article 6.

29. In support of the HDS, reliance is placed on the case of Lomax v Lomax [2019]
EWCA Civ 1467. In this case, the Court held that there was a power to order
an Early Neutral Evaluation to take place even if not all the parties consented
to it. However, Moylan LJ noted that Halsey:
...was dealing with a very different situation. It was concerned with whether
a court can oblige parties “to submit their disputes to mediation”. It does not,

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