How Early Neutral Evaluation (ENE) Can Be Used In Your Dispute

The traditional way of resolving disputes (i.e. by way of Court proceedings) has over recent decades been gradually eroded as the preferred method of resolving disputes. A plethora of alternative forms of dispute resolution have sprung up to challenge/complement the use of Court proceedings.

Early Neutral Evaluation (ENE)

ENE is one relatively new such form of an alternate dispute resolution (ADR), which tends to be used early on in a case.

ENE comes about by all parties agreeing to invite a third and neutral party (the Evaluator) to provide an opinion on the case and comment on the merits of it. This can be for the whole case or aspects of it. The Evaluator will be an expert solicitor in respect of the specific case or even possibly a Judge. The Evaluator will need to be decided upon and agreed by both parties.

Unlike a Judge, the position is the Evaluator is advisory only but offers the parties an incite as to what decision might be reached if the parties pressed ahead to Trial, thus giving them an opportunity to settle before a binding decision is made. Whilst use of ENE is typically agreed by the parties, the Court are able to order the parties to attend ENE. Solicitors should now consider the possible use of ENE early on in a case, not only to increase the chance of an early settlement, but to show willingness to comply and take all possible steps to avoid Court proceedings.

ENE is not suitable for all cases. It is likely to be most effective on simple cases that do not rely heavily upon the parties witness evidence to flesh out the circumstances of the case. This, combined with the fact that it will significantly increase the costs of the dispute if unsuccessful in helping to resolve the matter, means that ENE will only be rarely used.

The procedure

As mentioned above, the use of ENE tends to be agreed by the parties as opposed to being imposed by the Court. The case of Lomax v Lomax does however suggest that the Court can enforce ENE even when one party is not in agreement.

Whilst there is currently no formal procedure in relation to applying for or carrying out ENE, it is accepted that it is likely that any application for proceedings to be stayed for ENE would be granted by the Court.

Once ENE has been agreed and an Evaluator has been appointed, the below steps should follow for the evaluation to take place:

• Each party sends the Evaluator documents that they intend to rely on for their case;
• The Parties may be invited to make an oral submission at an evaluation session (the use of witnesses and experts is generally excluded, unless the facts of the case deem this necessary); and
• The Evaluator will provide his/her opinion based on the evidence supplied.

The papers involved with the ENE will not be kept by the Court and any Judge involved with the proceedings is unable to be made aware of the discussions had during ENE. A strategic advantage of ENE is that it can be used to prevent a specific Judge from being involved with the matter, as any Judge involved with the ENE on a case is automatically barred from hearing the case should it proceed to Court.