15 August 2019

Court of Appeal overturns previous judgment, confirming that parties can be forced to engage in certain types of alternative dispute resolution.

The Court of Appeal has overturned the High Court judgment of Mrs Justice Parker in the case of Lomax v Lomax (as commented on by Roberta Harvey and Hannah Mantle on 4 June 2019), confirming that the Court can order Early Neutral Evaluation (ENE) even if the parties do not consent.

Despite the wider scope of Mrs Justice Parker's judgment (which considered the Court's powers in relation to Alternative Dispute Resolution (ADR) more generally), the Court of Appeal was prepared to limit the scope of the appeal hearing to the construction of Civil Procedure Rule 3.1(2)(m).

It is interesting that the Court of Appeal was unreceptive to attempts by the respondent to widen the scope of the appeal, by referring to contradictory language in various Court Guides (including the Chancery, Commercial, and Technology and Construction Court Guides) all of which suggest that ENE is dependent on consent. The Court of Appeal's response was simply that the rules could not be disapplied by the Court Guides. It also gave short shrift to the respondent's suggestion that ENE should be given similar treatment to mediation (which is widely recognised as a voluntary process, as endorsed in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, seemingly viewing mediation and ENE as significantly different procedures. This seems difficult to argue with, given that ENE is a Court led process which requires an independent party to express an opinion about a dispute (or an element of it), whereas mediation is predominately a negotiation between the parties, requiring active engagement from them, and which could obstruct their right of access to the court if made compulsory.

Whilst the judgment (which is due to be reported in the coming weeks) may prompt the Court, and parties to litigation, to give fresh consideration to ENE, it seems unlikely that orders for ENE without consent will become commonplace. ENE is not appropriate in all cases and the Court is unlikely to allocate resources to the process unless it is confident that it will be suitable (in this regard see Seals v Williams [2015] EWHC 1829 (Ch), which touches upon the advantages of ENE, and the circumstances in which it might prove useful). It will also be interesting to see whether the judgment makes any comment on the Court’s power to order Financial Dispute Resolution (FDR) hearings (an alternative form of ADR which has its origins in the Family Division, where it is usually compulsory); although this question was considered within Mrs Justice Parker’s judgment, it seems that it may have fallen outside the more limited scope of the appeal.

In any event, and despite the narrowing of the issues, the case serves as a reminder of the Court's commitment to ADR generally, and should encourage parties to keep their minds open to the many alternatives to litigation, at every step of the relevant proceedings.

Ashleigh Carr is an associate in our Dispute Resolution team.

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