Court of Appeal rules Courts have the power to order ENE even if not all parties consent

9th August 2019

The Court of Appeal has ruled Evaluation is a process which assists with the fair and sensible resolution of a case, and Courts have the power, pursuant to CPR r.3.1(2)(m), to order Early Neutral Evaluation even if not all parties consent:

PAULINE MAVIS PATRICIA LOMAX v STUART ANDREW LOMAX (AS EXECUTOR OF THE ESTATE OF ALAN JOSEPH LOMAX, DECEASED) (2019)

CA (Civ Div) (McCombe LJ, Moylan LJ, Rose LJ) 06/08/2019

CIVIL PROCEDURE – DISPUTE RESOLUTION – CPR

CASE MANAGEMENT DIRECTIONS : CONSENT : EARLY NEUTRAL EVALUATION : CPR r.3.1(2)(m)

A court had the power pursuant to CPR r.3.1(2)(m) to order Early Neutral Evaluation even though one party had not consented to it. The rule did not impose a limitation to the effect that consent of all the parties was necessary; that would be contrary to the overriding objective.

The appellant appealed against a judge’s refusal to order Early Neutral Evaluation (ENE) without the respondent’s consent.

The appellant had issued a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The matter came before the judge for directions. Before the hearing the appellant had invited the respondent to consent to ENE but the respondent refused. The judge declined to grant ENE and decided that it could not be ordered if one party refused. The issue on appeal was the effect of CPR r.3.1(2)(m).

The respondent submitted that the court did not have power to order parties to submit to ENE. He argued that ENE was referred to in the Chancery, Commercial, and Technology and Construction Court guides and stated that it was dependent on consent.

HELD: Legislative framework – CPR r.3.1 contained the court’s general case management powers, and r.3.1(2) contained a list of wide-ranging powers for the court. Pursuant to r.3.1(2)(m) the court could take any step or make any order for the purpose of managing a case and furthering the overriding objective, including hearing an ENE with the aim of helping the parties to settle the case. The question was whether that meant the court could only agree to ENE with the consent of all parties. There were no express words that said ENE could only be ordered if all the parties consented. Until recently the commentary in the White Book said it was not dependent on the consent of the parties. That had been changed in a second commentary in a supplement from 19 June 2019.

Determination – The wording in r.3(2)(m) did not contain a requirement for the parties to consent to ENE. The question was whether that could be implied. ENE was a process which assisted with the fair and sensible resolution of a case. The rules could not be disapplied by what was said in the court guides. Consent of all the parties was not required. An ENE hearing was not an obstruction to parties’ access to the courts; it was part of the court process, Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 and Seals v Williams [2015] EWHC 1829 (Ch) considered.

Conclusion – There was no reason to say that r.3(2)(m) posed a limitation to the effect that consent of all the parties was necessary. That would be contrary to the overriding objective. The instant case would benefit from ENE and one should be held.

Appeal allowed

Counsel:
For the appellant: Christopher Buckingham
For the respondent: Thomas Entwistle

Solicitors:
For the appellant: KBL
For the respondent: Raworths

LTL 7/8/2019 EXTEMPORE : [2019] 8 WLUK 18
Ref: Lawtel