Page 142 - Solving Housing Disputes

33. Directive 2013/11 required that the ADR procedure be “independent,
impartial, transparent, effective, fast and fair” (para 40).

34. If legislation introduces an additional step to be overcome before a party can
access the court, that may prejudice implementation of the principle of
effective judicial protection (para 53). Relevant factors for determining
whether the mediation procedure is compatible with this principle include:
whether the outcome of the procedure is binding on the parties; whether it
causes a substantial delay for the purpose of bringing legal proceedings;
whether it suspends any limitation periods; whether it gives rise to costs;
whether the only means by which the procedure can be access are electronic;
and whether interim measures are available for urgent situations (para 61).

35. The Court also noted the recital to Directive 2013/11 which stated that:

The right to an effective remedy and the right to a fair trial are fundamental
rights laid down in Article 47 of the Charter of Fundamental Rights of the
European Union. Therefore, ADR procedures should not be designed to
replace court procedures…

36. Our view is that the HDS does amount to an obstruction and/or constraint on
parties’ access to the Courts and would therefore be a breach of Article 6:

• It is designed to replace an entire level of court procedures.
• As envisaged, it is neither transparent (it does not appear that
published decisions will be forthcoming) or fast (the process
described is lengthy).
• There is no provision for parties to opt out once the process starts.
• The parties are not in charge of the process and have no control over
how it is organised.
• No provision is made for extending limitation periods.
• Ultimately, the HDS is not a process whereby the parties are assisted
to reach a settlement, although this may be one of its aims. It results
in a determination of the parties’ rights.

37. It is, in our view, no answer to say that the parties can then appeal to the court
on an issue of fact or law as a matter of right. Firstly, we consider this
right to be illusory: we cannot accept it to be remotely probable that the
government will fund the HDS and then allow those disputes to be replayed
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