A widow and her stepson have been ordered to use a form of Alternative Dispute Resolution (ADR), without both parties consenting. The Court of Appeal decided that the courts have the power to order parties to use Early Neutral Evaluation (ENE), a form of ADR. The move is being seen by some as a step towards compulsory ADR.
Under ENE, a judge or independent third-party evaluator is given a concise presentation of the arguments by each party and then provides an evaluation of the case. ENE aims to encourage a negotiated settlement but cannot be referred to in any later court proceedings.
Pauline Lomax and her stepson Stuart Lomax were joint executors of her late husband’s will. The estate, which was substantial, was held in trust and was to pay income to Pauline during her lifetime, before passing to the children and grandchildren. There were also three significant settlements of assets.
Pauline applied for provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. She proposed using ENE to try to agree the changes, but her stepson declined, preferring mediation instead.
The dispute went to court, where the executors argued that that the court did not have authority to compel them to use ENE. They relied on a previous case, Halsey v Milton Keynes, which had ruled that forcing parties to engage in ADR would obstruct their right of access to the court and would add to costs.
In High Court, Mrs Justice Parker said the Lomax dispute “screamed out” for “robust, judge-led” dispute resolution, such as ENE, but decided “on the finest of fine balances” that she could not order ENE without the parties’ consent.
The case went to Appeal where the judge observed that that the Civil Procedure Rules, which govern the conduct of cases, did not require parties to consent before an ENE hearing was ordered. The Appeal judges also recognised the High Court judge’s clear view that the case would benefit from ENE and ordered that a hearing be held as soon as possible.
Commentators believe the courts are moving increasingly towards wider use of ADR. Writing in Litigation Futures, Tony Guise, director of DisputesEfiling.com Limited and a past president of the London Solicitors Litigation Association said: “Perhaps this decision is simply part of the modern trend toward the integration of ADR within the civil litigation system. After all, England and Wales has had compulsory ADR in family law for several years and funded by the state via legal aid.”
James Burgoyne, Director – Claims & Technical, Brunel Professions believes that ADR is a valuable tool in settling disputes, and helps preserve commercial relationships. “When professional firms come into dispute with their clients, it is inevitably quicker, less expensive and less disruptive to the business to reach a negotiated settlement than face a protracted legal case,” he said. “It is notable when other legal systems around the world are considered that an adversarial system with a clear winner, and by the same token a clear loser, is not the only possible approach to justice.”
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