Court “does not need consent of all parties” to order ENE

Parker: Ruling overturned

A court has the power to order early neutral evaluation (ENE) even though one party has not consented to it, the Court of Appeal has ruled.

It said CPR 3.1(2)(m) – which allows the court to take any step or make any order for the purpose of managing a case and furthering the overriding objective, including hearing an ENE with the aim of helping the parties settle the case – did not impose a limitation to the effect that consent of all the parties was necessary.

The specific reference to ENE was added to the rule in 2015.

The decision in Lomax v Lomax – reported on Lawtel – followed the judgment of Mrs Justice Parker, in which she said the battle between a widow and stepson over a large estate “cries, indeed screams out” for the kind of “robust, judge-led” processes used to settle family law disputes.

Refusing to order ENE without the respondent’s consent, she called on the Civil Procedure Rules Committee to clarify whether an ENE hearing could be “considered compulsory” for non-family civil proceedings.

The respondent submitted that the various court guides stated that ENE was dependent on consent.

But the Court of Appeal said the wording in rule 3.1(2)(m) did not contain a requirement for the parties to consent and the CPR could not be disapplied by what was said in the court guides.

It would be contrary to the overriding objective to imply a consent requirement into the rule, the court said. The case would benefit from ENE and one should be held.

Litigation Futures understands that the court – with Lord Justice Moylan giving the lead ruling – made favourable comparisons with the analogous compulsory financial dispute resolution hearing in family cases.

Notably, the case was heard less than two months after the appeal was lodged.

Christopher Buckingham, instructed by KBL Solicitors, acted for the appellant, with Thomas Entwistle, instructed by Raworths, for the respondent.

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