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Ordering ADR – the Early Neutral Evaluation case
September 30, 2019
Introduction
Earlier this year (February 2019) I gave a brief summary of themes arising out of the Final Report of the Civil Justice Council’s ADR Working Party “Alternative Dispute Resolution and Civil Justice“ (December 2018). The first topic was whether the courts should be able to order ADR/mediation as a precondition for any further step in the civil litigation. The Report was not in favour. That was pretty much, I believe, the view of the mediation world (though not all). And also the view of the Court of Appeal in Halsey v Milton Keynes General Trust [2004] 1WLR 3002.
Lomax
Now along comes Lomax v Lomax (as executor of the Estate of Alan Joseph Lomax Deceased) [2019] EWCA Civ 1467 (6th August 2019) in which the Court of Appeal (McCombe, Moylan, Rose LJJ) has found that the court can order Early Neutral Evaluation without the consent of the parties (in that case, one party did not agree). ENE was included in one of the types of ADR identified in the 2018 Report (para 3.2). At such a hearing the court “discusses the merits and demerits of each party’s position in a joint meeting, indicating a view of strengths and weaknesses and encourages reconsideration of settlement across the table or by inviting private consideration. [The court] normally does not see either party separately “ (para 3.8).
The Court’s Reasoning in Lomax
The Court of Appeal based it’s ruling firmly on CPR rule 3.1 (m) (as amended by CP R (Amendment No.4) Rules 2015. As part of the court’s case management powers it 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.”
As Moylan LJ, giving the lead judgement, pointed out the amended CPR contained no express requirement for consent, and it would have been easy to insert. He distinguished Halsey on the basis that the relevant passage was concerned with ordering parties to submit to mediation (correct) and nor did an ENE prevent the parties from proceeding to court. He also made observations on the benefits of ENE in practice even where the parties were resistant or hostile (paras 24-30).
Conclusion
I might add that in Halsey itself Dyson LJ said, “In practice references to ADR are usually understood as being references to some form of mediation by a third party” (para 5). So as a matter of application Lomax leaves the principles in Halsey untouched (as do the observations of Sir Alan Ward in Wright v MIchael Wright Supplies [2013] EWCA Civ 234 para 3). However, as a step in the history of ADR – compulsion or not – it is an interesting development.
