Judges can provide an early neutral evaluation of a case to assist in its resolution, a High Court judge has said.
Mr Justice Norris said that it was part of the judicial function for the judge to accede to a request for a provisional opinion.
He was ruling in Seals & Anor v Williams  EWHC 1829 (Ch) , an Inheritance Act case against the estate of claimants’ late father.
Norris J said there was “a great deal of acrimony” between the parties and an attempt at mediation had stalled. “In this context, it is highly commendable that the legal representatives for the parties have proposed as a way forward, and the court has been invited to undertake, an early neutral evaluation of the case.
“The advantage of such a process over mediation itself is that a judge will evaluate the respective parties’ cases in a direct way and may well provide an authoritative (albeit provisional) view of the legal issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues.
“The process is particularly useful where the parties have very differing views of the prospect of success and perhaps an inadequate understanding of the risks of litigation itself.”
Though a similar process – a financial dispute resolution hearing – is established in the family courts and authorised by the Family Procedure Rules, and features in the guides to both the Commercial Court and Technology and Construction Court, Norris J said it was not so clear in other jurisdictions.
Nonetheless, he said “it seems to me plain that the expression of provisional views – with a view to assisting the parties – reduces the areas of dispute and the general scope of the argument, and is an inherent part of the judicial function both in civil litigation and in criminal proceedings.
“The expression of provisional views in the course of a hearing is not dependent in any way on the consent of the parties. It is simply part of the judge’s inherent jurisdiction to control proceedings before him or her. The expression of views about the ultimate outcome of a case at a hearing specially convened for that purpose is slightly different.
“In my judgment, if the parties ask a judge to express provisional views on particular hypotheses or upon the judge’s overall impression of the case so far, then it is part of the judicial function for the judge to accede to doing so – though plainly the judge is not bound to do so whenever the parties request.”
He said the proposed directions had been “carefully crafted so as to afford the settlement judge the opportunity to make non-binding recommendations as to the outcome and to state short reasons for that recommendation without in any sense attempting a provisional judgment. Indeed, the settlement judge would not be further involved in the proceedings at all. The directions also provided that, in the light of the recommendations, the parties may agree a consent order.
“What will bind them is their consent to the making of an order – not the outcome of the early neutral evaluation process itself. Both in the Birmingham District Registry and in this District Registry such neutral evaluations are being adopted and the move is warmly to be welcomed. I make an order in the form agreed.”