Article by Katie Wilkinson
The Court of Appeal have clarified the powers of the Court to require parties to engage in early dispute resolution which goes much further than the Courts’ general encouragement of mediation, and the imposition of costs sanctions to those who unreasonably refuse.
On 6 August 2019 the Court heard Lomax v Lomax [2019] EWCA Civ 1467 which concerned the effect of CPR 3.1(2)(m), and specifically the Courts’ powers to take case management steps that include hearing an ‘Early Neutral Evaluation’ (‘ENE’) ‘with the aim of helping the parties settle the case’. The issue before the Court in this inheritance dispute was whether such a hearing could be ordered in the absence of consent between the parties.
The decision of the Court of Appeal was a resounding YES. The specific reference to an ‘ENE’ within the CPR came into effect on 1 October 2015. It is not the same process as mediation and falls into the Courts’ general case management powers.
It was noted by LJ Moylan that, although it would have been simple to include the same, the CPR did not contain an express requirement for the parties to consent to the ordering of an ENE. ENE was part of the court process, whereas mediation was not.
An ENE was held to be “a step in the process which can assist with the fair and sensible resolution of cases”.
