Early Neutral Evaluation – can a party be compelled to attend?

Lomax v Lomax as Executor of the Estate of Alan Joseph Lomax (Deceased) [2019] EWCA Civ 1467

Early Neutral Evaluation (ENE)

ENE is a form of alternative dispute resolution (ADR) in which an independent and impartial evaluator (generally an expert in the field, including judges – ENE is offered in the Chancery Division by all judges) is appointed to give the parties an assessment of the merits of the case or particular aspects of the case. An essential feature of ENE is that unless the parties agree otherwise, the opinion of the evaluator is non-binding and the process is without prejudice (it being treated as part of a negotiation between the parties).

Background

The substantive proceedings comprised an application by a widow under the Inheritance (Provision for Family and Dependants) Act 1975. In the course of those proceedings, the widow had sought an ENE hearing whilst the defendant opposed an ENE hearing. At first instance, the judge declined to order the hearing, deciding that the court did not have the power to do so when one party had refused to consent to such a hearing. The widow appealed, submitting that the judge had been entitled to order and should have ordered the ENE hearing to take place despite the defendant's opposition.

The Law

The court has a number of “general powers of management” in respect of proceedings, including the power under rule 3.1(2)(m) of the Civil Procedure Rules 1998 to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”

The Decision

The Court of Appeal confirmed that the court does have the power under CPR 3.1(2)(m) to compel the parties to attend judge-led dispute resolution by way of ENE, even where a party does not consent (even when the party’s reason is because it considers that another form of ADR e.g. mediation is more appropriate).

The Court of Appeal did not directly address the question of whether the court has the power under CPR 3.1(2)(m) to order ENE where neither party consents - it appears unlikely.

Considerations
  • ENE can be particularly useful where the parties have entrenched positions and where there is a strong emotional element such as claims under the Inheritance (Provision for Family and Dependants) Act 1975.
  • Charities should consider ENE, especially where it has reached an impasse with the other party to a dispute and/or it wants a relatively swift resolution.

Full details of the case can be seen here.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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