In
Seals v Williams [2015] EWHC 1829 (Ch), concerning an Inheritance Act dispute, Norris J noted, 'An attempt at mediation has largely stalled because of the differing perceptions of the issues and of the strength of the respective arguments.'
Norris J commended the suggestion that the parties engage in judge-led Early Neutral Evaluation (ENE), noting, '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.'
The court went on to find a jurisdictional basis for ordering ENE, even if the parties did not consent (they did here) in CPR 3.1(m) which provides the court with the power 'to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective'.
From the 1 October 2015 rule 3.1(m) is to be amended to make express provision for ENE, providing power to '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.'
Briggs LJ commended ENE in the
Chancery Modernisation Review: Final Report(2013) (see paras 5.23 – 5.30 and 16.19). This is an area where family lawyers are almost light years ahead, having used the Financial Dispute Resolution appointment as the principal way of disposing of financial remedy claims for many years. The learned authors of the White Book note,
'The amended rule is not, as might have been expected limited to Chancery proceedings. It is of general application. While it is likely to be used more readily in the immediate future in Chancery proceedings given the impetus to its use by the Brigg’s Review and Norris J’s judgment, its use in appropriate cases in the Queen’s bench Division and the County Court is likely to become increasingly common.' (Civil Procedure News Issue 8/2015)
But hold on a minute: where does the'early' come into ENE? The parties in
Seals had already been engaged in months of litigation prior to the white flags being hoisted before Norris J.
The timing of an ADR process is a key ingredient to its success and costs control. In
Nigel Witham Ltd v Smith & Isaacs [2008] EWHC 12 [TCC] at para [32] Coulson J made comments which would be equally applicable in the ENE context:
'It is a common difficulty in cases of this sort, trying to work out when the best time might be to attempt ADR or mediation. Mediation is often suggested by the claiming party at an early stage. But the responding party, who is likely to be the party writing the cheque, will often want proper information relating to the claim in order to be able to assess the commercial risk that the claim represents before embarking on a sensible mediation. A premature mediation simply wastes time and can sometimes lead to a hardening of the positions on both sides which make any subsequent attempt of settlement doomed to fail. Conversely, a delay in any mediation until after full particulars and documents have been exchanged can mean that the costs which have been incurred to get to that point themselves become the principal obstacle to a successful mediation. The trick is many cases is to identify the happy medium: the point when the detail of the claim and response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that settlement is no longer possible.'
The parties in 'family property' Chancery litigation will usually have spent thousands to get to a Case Management Conference at which court led ENE is proposed. Pleadings, costs budgeting, etc will all have to be contended with.To keep it 'early' the parties may want to consider engaging in private ENE before a specialist solicitor or barrister in the area of their dispute.
