Page 24 - Solving Housing Disputes

may otherwise be identified, to ensure that all matters and interests relevant
to the dispute are brought to the surface. So far as is possible, any latent
problems should be dealt with at the same time by the HDS, to lay the ground
for better future relations.

2.18 The service would approach the relationship as a neutral, investigative arbiter,
finding facts, applying the relevant legal and regulatory framework and any
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applicable codes of conduct. It would adopt a protective, non-adversarial and
investigative method to claims. Our evidence gathering revealed that a vast
number of housing disputes, particularly possession claims, are currently
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resolved through informal negotiation process outside of the courtroom, and
that those approaches are the ones that produce most satisfactory outcomes
for participants. The HDS would not have hearings. Instead, the method for
dispute resolution would be negotiation and ADR.

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2.19 The HDS would be the default mechanism for housing dispute resolution.
Appeals would be available to appellate courts and tribunals as of right, should

48 Protective denotes an approach that ensures all parties are made aware of their respective rights and
obligations, modifying the process for vulnerable people, conducting the process to ensure people can
participate effectively and deploying internal expertise and experience to address underlying drivers
behind a dispute.

49 Harris, ‘Alternative Approaches to Resolving Housing Disputes: The role and potential of alternative
dispute resolution in the UK private rented sector’, (UK Collaborative Centre for Housing Evidence,
February 2020) p.24 (forthcoming). Tenant lawyers we spoke to told us that for the majority of clients
who come to them, pre-litigation negotiation resolves the dispute, even if that negotiation is not initiated
by the housing provider as required under pre-action protocols.

50 Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576 has long stood for the proposition
that forcing people to participate in ADR external to the court process is a fetter on the right to a fair trial
under Article 6 of the ECHR. However, there are strong caveats to Halsey. In August 2019, the Court of
Appeal in Lomax v Lomax [2019] EWCA Civ 1467 held that CPR 3.1(2)(m), which refers to a court’s

powers as including “hearing an Early Neutral Evaluation (“ENE”)”, allowed for a court to order ENE
notwithstanding that the parties had not consented to the process. Article 5(2) of the 2008 European
Mediation Directive explicitly permits the use of mandatory mediation. Provided participants maintain
an unfettered ability to access the courts, ADR merely postpones the right to a trial, rather than denying
it, Creutzfeldt, N. and Gill, C. (2014) ‘The Impact and Legitimacy of Ombudsman and ADR Schemes in
the UK. The Foundation for Law, Justice and Society: Policy Briefing’, available at:
https://www.fljs.org/content/impact-and-legitimacy-ombudsman-and-adr-schemes-uk We acknowledge
concerns about Article 6, but we believe the HDS is likely to be compliant. We note the British Columbia
Civil Resolution Tribunal (BCCRT), which features enforceable determinations made by adjudicators as
opposed to judges in apartment disputes bears many similarities to the HDS model. The BCCRT was a
significant influence on the Civil Courts Structure Review and otherwise on dispute resolution system
development here and there is no suggestion that model is not Article 6 complaint. While the decision in
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