Case In Brief Court holds early neutral evaluation can be ordered without party consent
By Sophie Hursthouse
The recent case of Lomax v Lomax [2019] EWCA Civ 1467 (judgment available here) boldly held its power to order Early Neutral Evaluation (ENE) is not dependent on party consent. This decision represents a significant step forward for Alternative Dispute Resolution (ADR) in the UK.
Early Neutral Evaluation is a form of ADR where an independent party, often a retired judge, provides parties with an evaluation of the merits of their cases and the likely outcome if the matter were to proceed to trial. It looks to facilitate parties’ resolution of the case outside of the courts by:
(a) setting the scene for negotiation discussions to take place; (b) helping parties to see the case in a different light if there is a great disparity between their approaches; (c) if one party has an unrealistic view of their case, help that party to realise how it would fare in court; and (d) focus the parties on the central issue to the case, potentially bringing them towards a common resolution.
To date, there has been limited use of ADR in the UK, although the judiciary proves to be very supportive of increasing its use. Recently, discussion has centered on whether the courts could go so far as to order the use of ADR even where parties do not consent.
This case is significant in that it was held that a court in the UK can order ENE without the consent of all parties.
Background
The case, first heard in the High Court of England and Wales, concerns an application by a widow under the Inheritance (Provision for Family & Dependants) Act 1975. The claimant wished to engage in an ENE process. On the other side, the defendant did not consent to ENE and wished to engage in mediation.
Trial
Although Parker J was wholly supportive of ENE, saying the case needed a “robust judge-led process,” she felt restricted by the lack of consent from the defendant. It appeared to her that the court’s powers did not extend so far as to order ADR where full party consent was absent. Previously it has been assumed that rule 3.1(2)(m) of the Civil Procedure Rules 1998 – that the courts may order ENE– is limited to cases where all parties agree:
Rule 3.1(2)(m) states that the court may “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.”