A 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, a High Court judge has said.
Mrs Justice Parker called on the Civil Procedure Rules Committee to clarify whether an early neutral evaluation (ENE) hearing could be “considered compulsory” for non-family civil proceedings.
She also urged the committee to provide a “clear route” to a compulsory financial dispute resolution (FDR) hearing in non-family cases, a “prime example being Inheritance Act litigation”.
Parker J said these procedures would focus at an early stage on the “legal and factual issues” presented by a case, perhaps even allowing for a judge to “craft a proposed solution for the parties to consider”.
She said that mediation, even by a legally trained mediator, was “unlikely to approach the issues in an authoritative way”.
The judge said she had found it “extremely difficult” to decide whether the Civil Procedure Rules allowed her to order an ENE or FDR in an Inheritance Act case.
“I have decided, on the finest of fine balances, that I cannot order an ENE or FDR. I have found this decision extremely difficult. I may well be wrong, and overly cautious.”
The High Court heard in Lomax v Lomax  EWHC 1267 (Fam) that Pauline and Stuart Lomax, her stepson, were joint executors of her late husband’s will.
The estate, worth around £5.5m, was held on trust, with income to be paid to Pauline during her life and then both capital and income to the deceased children and grandchildren.
There were also three settlements with around £50m of assets. Stuart and his wife were the only trustees of two of them.
Pauline applied for provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975, and sought variation of the settlement trusts.
Parker J said Stuart argued that Pauline’s claim had “no possible merit – presumably on the basis that adequate provision has been made for her – and appears to be an abuse of legal process, and that 90% of the evidence so far filed is almost certainly irrelevant”.
The judge said Inheritance Act proceedings had “much in common” with family law financial remedy proceedings.
“There are similarities in the relief that can be ordered: there is an element of discretion in the award; they usually concern family assets; there is often a family or domestic relationship; and they can give rise to deep emotions.”
However, Parker J said Inheritance Act proceedings were covered by the CPR and not the Family Procedure Rules.
CPR rule 3.1(2)(m) provides: “The court (under its general powers of case management) may 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.” The final part of this was added in 2015.
Counsel for Pauline argued that the commentary in the White Book about the amended rule “stated in terms that ENE could be ordered without party consent”. Counsel for Stuart rejected this.
Parker J said: “My overall conclusion is that the current rules are insufficiently precise in their formulation for me either to conclude, or be confident that the rule makers intended, that the judge is permitted to give directions which lead to a non-consensual ENE; or that the term ENE in the amended rule is intended to govern FDR as well.”