The Court of Appeal handed down it decision earlier this week in the case of Lomax v Lomax (2019) CA, which was an appeal against the High Court judge’s decision not to order an Early Neutral Evaluation (ENE) without both parties’ consent. The case is a claim under the Inheritance (Provision for Family and Dependants) Act 1975
ENE is a non-binding method of Alternative Dispute Resolution (ADR), whereby the parties present their submissions on the case to a neutral person (usually a judge or QC), and that person gives their opinion on the likely outcome at trial. The view is ‘without prejudice’ and therefore cannot be revealed to the trial judge before or during the trial, and has no binding effect. It is however a very useful procedure and method of assisting the parties in cases like this, to reach a settlement long before trial is reached. As an associate solicitor specialising in these types of cases, I have previously found ENEs to be a very useful process and a good way to focus the parties minds, in particular where one party’s opinion of the merits or quantum of their claim has become so entrenched, that they are not willing to move or negotiate. The opinion of that neutral 3rd party, can sometimes be the key to unlocking the bar to settlement.
The High Court had ordered in May this year, that if one of the parties did not consent to the ENE, then the Court could not force them to participate. However, the Court of Appeal have now overturned this decision, looking specifically at the Court’s case management powers under CPR 3.1(2)(m), which gives them the power to order an ENE. The Court of Appeal held that there were no express words in the CPR that meant the parties had to consent, and therefore clarified that if the Court considered an ENE to be appropriate, they could compel the parties attend, even if one did not consent.