Early Neutral Evaluation - To Consent or Not?

Early Neutral Evaluation (“ENE”) has long since been recognised as an alternative dispute resolution (“ADR”) remedy to afford parties an alternative way for parties to resolve their dispute without recourse to the more traditional route of court proceedings.  Since October 2015 there has been provision for the court to order an ENE hearing.  However, in line with other forms of ADR (for example, mediation), practitioners have taken the view that ENE is a voluntary process, such that the court is unable to order ENE without consent from all parties.  However, this belief has now been dispelled by the Court of Appeal following the recent case of Lomax v Lomax.

Background

In the case, Mrs Lomax brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) alleging that her late husband’s estate failed to make reasonable financial provision for her.  Within those proceedings, she sought an order for an ENE hearing.  The defendant to those proceedings, however, objected to the granting of such an order.

At first instance, the judge declined to make such an order declaring that she did not have the power to do so when, as in this case, one party did not consent to the order.  Mrs Lomax appealed the decision.

The Court Rules

Rule 3.1 of the Civil Procedure Rules 1998 (“the CPR”) contains the court’s general management powers.  Specifically, Rule 3.1(2):

“Except where these Rules provide otherwise, the Court may:
…

(m)    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.”

Is consent needed?

No said the court of appeal.  They took into account that Rule 3.1 did not include any express requirement for the parties to consent before an ENE hearing could be ordered nor did it consider that any restriction should be implied.  Having an ENE hearing did not, the court said, obstruct a party’s access to the court.  It is a step which may assist the parties in resolving the dispute but it is not a debarment to continuing with court proceedings if a settlement cannot be achieved.  Furthermore, if the intention had to be to ensure that consent was obtained from all parties before an ENE hearing was ordered then in the court’s view Rule 3.1(2)(m) would have specifically done so – it would have been a relatively simple process to include such a provision within the Rule.  It’s absent was therefore further indicative of there being no intention for all parties to consent before an ENE hearing was ordered.

In the circumstances, the Court of Appeal upheld the appeal and directed that an ENE hearing should be listed as soon as possible.

Conclusion

Whilst this case did turn on the question of interpretation of the Court rules, it is the first time that a court  has ruled in relation to any ADR process which, as indicated above, had to date been considered by practitioners to be a voluntary process.  It will be interesting to see whether in the future the courts expand this yet further and seek to make orders compelling parties to attend other forms of ADR, for example, mediation against their will.

It should also be noted that whilst mediation and other more general forms of ADR such as without prejudice meetings or written offers are often used in claims under the Act, ENE is not routinely considered.  It remains to be seen, therefore, the extent to which parties in other claims under the Act will now consider ENE as a method of ADR to resolve their disputes.