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Court of Appeal highlights value of early neutral evaluation

Court of Appeal: ENE does not obstruct access to court

Requiring parties to submit to early neutral evaluation (ENE) against their will is “not an obstruction to or constraint on” their access to the court, the Court of Appeal has ruled.

ENE can help parties focus on whether a case can be settled and reduce costs, said Lord Justice Moylan.

The full decision in Lomax v Lomax [1] – a summary of which we reported earlier this month [2] – has now been published.

It concerned a case where the trial judge, Mrs Justice Parker, said the battle between a widow and stepson over a large estate “cries, indeed screams out” [3] for the kind of “robust, judge-led” processes used to settle family law disputes.

However, she felt constrained by the CPR from ordering an ENE hearing because the respondent did not consent to it.

CPR 3.1(2)(m) 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.

The appeal court ruled that this did not include an implied requirement for consent.

Moylan LJ – giving the unanimous ruling of the court – said: “If the intention had been to require the parties to consent, it would have been very easy to make this clear by expressly providing for this.

“In my view, the absence of any such express requirement is a powerful indication that consent is not required.”

The judge said ENE was different from forcing parties to mediate, as an ENE hearing was “part of the court process”.

He continued: “In any event, ENE does not prevent the parties from having their disputes determined by the court if they do not settle their case at or following an ENE hearing.

“It does not, in any material way, obstruct a party’s access to the court.

“Insofar as it includes an additional step in the process, this is not in any sense an ‘unacceptable constraint’, to use the expression from Halsey. In my view, it is a step in the process which can assist with the fair and sensible resolution of cases.”

Moylan LJ said “the great value” of ENE has been clearly demonstrated in financial dispute resolution (FDR) hearings in family cases – whether or not the parties were willing to seek to resolve their dispute by agreement.

“I would also suggest, in response to [counsel for the respondent’s] submission that ordering an ENE is a strange way of helping parties settle a case, that it requires parties to focus on whether a case might be capable of settlement and requires them to hear a judge’s neutral evaluation.

“It requires them to hear this because the parties can be, and would typically be, ordered to attend the hearing as permitted by rule 3.1(2)(c), because one of the key purposes of such a hearing is for the parties to hear directly the judge’s evaluation of the case.

“Also, contrary to another of his submissions, based on my experience of FDRs, the result of requiring parties to have such a hearing can and often will be to achieve a great deal, including saving rather than adding to costs.”

Moylan LJ concluded that requiring consent would be inconsistent with elements of the overriding objective, “in particular the saving of expense and allotting to cases an appropriate share of the court’s resources, and would, therefore, be contrary to rule 1.2(b)”.

The court directed that an ENE hearing be held “as soon as possible”.