Neutral evaluation in the new civil justice landscape

Not so long ago if you had asked someone to explain neutral evaluation, you might have drawn a pause and a quizzical look. Today, the market for ADR (or dispute resolution processes (DR) as we are encouraged to call mediation, evaluation, adjudication and the like) has moved from the margins to the mainstream, and at pace.

Evaluation already plays a leading role in the resolution of civil claims. In 2015, the Civil Procedure Rules were amended to give the Court power to order parties to evaluate (CPR 3.1(2)(m)). In August 2019, the position was enhanced in Lomax, when the Court of Appeal decided that an evaluation could be compelled under 3.1(2)(m). Since Lomax, no less than two Reports by the Civil Justice Council (CJC) have called for greater use of evaluation as a dispute resolution tool.

Clinical negligence claims

In October 2019 the CJC published its report into “Fixed Recoverable Costs in Lower Value Clinical Negligence Claims”, which can be found here.

This Report concerned claims for clinical negligence with a value up to £25,000, and is described by Andrew Parker (Chair of the Clinical Negligence Working Group and CJC member) as making recommendations borne of “a broad consensus between many of the working group members”.

The Report sets out the number and percentage of claims valued at up to £25,000 for 2015-16 being 8,642 cases, or 80.2% of all cases (para 1.09).

In what is described as a “bold and imaginative proposal … favoured by representatives of both sides” (para 1.20) the Report recommends the introduction of mandatory neutral evaluation (MNE) for disputes that do not settle in the Report’s re-booted pre-action process. MNE would therefore take place post-issue, but after statements of case had been exchanged.

How many cases would that make subject to MNE? Of course that depends on the efficacy of the new pre-action processes. Working on an assumption that most cases settle, it may be that up to 20% (1,728) of the 8,462 claims could become subject to mandatory evaluation. That is a gigantic leap from the number of evaluations taking place in England and Wales at present. It is also significant that both Defendant and Claimant sides of the Working Party supported not only the use of neutral evaluation, but also that evaluation should be mandatory.
However, even that increase in work could be dwarfed by the recommendation in the next CJC Report we consider.

Compulsory ADR

The appointment of Sir Geoffrey Vos in January 2021 with his ideas about civil justice being about resolution not confrontation catapulted DR to the forefront of debate about civil justice reform. Part of this debate concerned the controversial question whether DR could be made compulsory. That controversy was resolved when, in June 2021, the CJC published its Report “Compulsory ADR”. That Report can be found here.

The Working Party concluded that:
“We think that introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development.” (para 118)

Specifically with regard to neutral evaluation the Working Party say:
“…we think there is much to be said for early ENE in all cases other than the most complex, combined with a straightforward requirement of participation in ADR at an appropriate stage of the procedure.” (para 108)

The Working Party champion neutral evaluation because of its flexibility and speed compared with mediation.

Online management of pre-action phase

The Ministry of Justice in England and Wales recently issued a Call for Evidence about how DR can be used to a far greater extent than hitherto. This closed on 31 October 2021 and the Call is here.

From these developments it is clear the pre-action phase of litigation is where the action will be in future. There will be much more DR and, judging from the questions raised in the Call and in speeches this year by Sir Geoffrey, DR will be managed through online collaboration platforms accredited by the Government.

Much more evaluation managed online will probably be mandatory by this time next year. Exciting times ahead for evaluators!

Tony Guise is the Director of DisputesEfiling.com Limited (DEF) which is the provider of a Cloud based platform for the management of evaluations to Independent Evaluation and Facilitation Service (IEFS) Limited. Tony is a past President of the London Solicitors Litigation Association and writes regularly on issues concerning civil justice reform in England and Wales.