Until June this year, the commentary in the White Book stated that the court’s power to order ENE hearings is not dependent on the consent of the parties. However, the Second Cumulative Supplement (7 June 2019) removes any reference to jurisdiction extending where there is no consent.
In Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, the court held that to compel ADR would be “an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6.”
Parker J consequently declined to order ENE, upon which the claimant appealed to the Court of Appeal.
Appeal
On appeal, Counsel for the appellant (the claimant) submitted that if the rule is interpreted literally, there is no need for party consent. He submitted further, that the overriding objective supports the position that the court should be able to exercise its discretion and that it could not be right for one party to have “veto” powers to interfere with that discretion.
Counsel for the defendant relied on Halsey to support his position that the court cannot force parties to undertake ADR, which includes ENE. He argued that requiring parties to engage in ADR where they do not consent would unjustifiably obstruct access to the court and so breach Article 6 of the European Convention on Human Rights and would add cost in vain. Further, the tone of the wording in rule 3.1(2) such as “encouraging” as opposed to “direct” support the argument that consent is required before ADR can be ordered, as does the Court Guide.
The Court of Appeal found that Halsey could be distinguished from the present case as ENE, unlike mediation, is “part of the court process.” Additionally, it was emphasised that parties are not obstructed from accessing the court as they can recommence the litigation and proceed to trial after the ENE hearing. In any case, the Court held that enforcing ENE is not the “unacceptable constraint” that Halsey