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Master sets out guidance on early neutral evaluation in QBD

McCloud: ENE different from many forms of mediation

Master Victoria McCloud has issued guidance on how Queen’s Bench masters should handle early neutral evaluation (ENE).

She said the guidance was needed because there was no equivalent in the Queen’s Bench Guide to the section on ENE featured in the Chancery Guide.

ENE was given a boost [1] by the Court of Appeal in Lomax v Lomax last summer, when Lord Justice Moylan said it could be used even in cases where the parties did not consent.

Ruling in a High Court contract case in which she agreed to provide ENE, Master McCloud said: “The evaluative nature of ENE means that positive or negative views as to merits are expressed, perhaps robustly, by the judge.

“It is therefore different from many forms of ‘mediation’ where the focus is facilitative. The process to be adopted for judicial (or any other form) of ENE is not stated in the Civil Procedure Rules and it is intended that the approach can be tailored to the needs of any given case.

“Thus one may for example proceed wholly on the basis of written evidence and submissions or by way of written evidence and written argument supplemented at an oral hearing.”

Master McCloud said that in the Queen’s Bench Division, ENE could be useful where a view on the merits of points of law and construction was needed or whether alleged breaches of contract were repudiatory breaches.

“Consideration may be given to ENE in respect of any or all issues in a case and may also be especially useful where the resolution of some key issues would encourage settlement of others, or where the trial time estimate and use of resources and costs would be significantly reduced if parts of the case are resolved as a result of ENE.”

Master McCloud described ENE as a confidential process, meaning that once she had dealt with ENE in this case, she would have to release it to another master who would not be aware of the views expressed at the ENE appointment.

The High Court heard in Telecom Centre (UK) v Thomas Sanderson (Early Neutral Evaluation) [2020] EWHC 368 (QB) that the claimant sued the defendant for wrongful termination of a contract for phone-based customer services.

The defendant alleged that the claimant was in repudiatory breach of contract, entitling it to terminate the relationship between the parties.

Master McCloud said there were “four potential candidates” for ENE in the dispute – whether there was merit in the defendant’s allegation of repudiatory breach; whether there was merit in an argument over oral variation of the contract; whether there was merit in an argument as to a separate oral contract; and whether a particular EU regulation could be applied.

Master McCloud said the “degree of formality or informality of the opinion” given at ENE was up to the judge, along with the appropriate time estimate which “may well be more than half a day” depending on the complexity of the case.

“The outcome of judicial ENE is normally ‘without prejudice’ unless privilege is mutually waived and is normally not binding unless the parties agree.

“It is possible that agreed terms of ENE may be that the decision is binding only upon the happening of certain events, or binding only for a defined period such as where an issue is dealt with on an interim basis.

“Papers considered at the ENE will be returned to the parties at the end and not retained in the court file so as to ensure that subsequent judges or the public will not access them.”

She set out in an annex a “generic version” of the order she intended to make in the case, which “may usefully be adapted to suit other cases” by others considering ENE.