Home > There’s ADR…and Then There’s ADR: It’s Not All the Same

There’s ADR…and Then There’s ADR: It’s Not All the Same

27th November 2019

There’s ADR…and Then There’s ADR: It’s Not All the Same

Lomax v Lomax [2019] EWCA Civ 1467 

Background

Under the Court’s general powers of case management, CPR r 3.1(2)(m) (‘the Rule’) provides that:

(2) Except where these Rules provide otherwise, the court may –

[…]

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case”.

In this case, an application under the Inheritance (Provision for Family & Dependants) Act 1975, the Defendant refused consent to an Early Neutral Evaluation (‘ENE’) hearing. By an order dated 20 May 2019, Parker J therefore declined to order one, on the basis that the court did not have power to do so in such circumstances where consent to an ENE hearing is withheld by one of the parties.

The issue upon appeal was whether, notwithstanding the express terms of the Rule, it is subject to an implied condition that the parties consent before the court can order an ENE hearing.

 

The Court of Appeal

Moylan LJ (with whom McCombe and Rose LJJ agreed) began by noting that, until recently, the commentary on rule 3.1(2)(m) in the White Book 2019, at 3.1.13, explicitly stated that the court’s decision to order ENE was part of the inherent jurisdiction to manage proceedings, and not dependent “in any way” on the consent of the parties. In the Second Cumulative Supplement dated 7 June 2019, however, this sentence does not appear. Nevertheless, the Supplement notes that many Court Guides still hold that ENE depends upon the consent of all parties. Both Parker J’s decision in the court below and the seminal case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 are also cited and considered.

In Halsey, the Court of Appeal held that parties cannot be compelled to resolve their dispute by mediation by reference to the wider principle of access to the courts: to oblige and compel “truly unwilling” parties to mediation would be an “unacceptable obstruction on the rights of access to a court;” and a likely breach of Article 6 of the EHCR.

Halsey formed a central part of the Defendant’s submissions in the present appeal, however, Moylan LJ distinguished Halsey on the basis that it was a “very different” issue whether a court can oblige parties to submit their disputes to mediation. By contrast, the present case was concerned with the order for an ENE hearing “as part of the court process” (emphasis original). Insofar as such order may result in an additional step in that court process, Moylan LJ did not consider it “in any sense” introduced an “unacceptable constraint” on the access to justice; rather, it was one which assisted with the “fair and sensible resolution” of cases. Nor was ENE found to prevent parties from having their disputes determined by the court if, following an ENE hearing, the dispute is not settled.

Moylan LJ therefore considered that Halsey did not assist on the interpretation of the Rule; nor did the issues, raised by subsequent authorities as to the scope of Halsey and whether it remains good law, fall to be considered. Similarly, earlier authority on the position as to ENE before the Rule was introduced and came into force (on 1 October 2015) was found to be of limited assistance. Nor were the Court Guides and White Book Commentary determinative of the correct interpretation of the Rule.

Taking the issue generally, Moylan LJ considered that the value judge-led ENE adds, especially in financial remedy cases, has been very well demonstrated. Moylan LJ suggested this may be so because it requires parties to focus on whether a case might be capable of settlement, and to hear the neutral evaluation of a judge.

Given, therefore, that there is no express requirement in the terms of the Rule itself that the consent of the parties is required, Moylan LJ saw no reason to imply any limitation to that effect on the court’s power to order an ENE hearing. Furthermore, an interpretation to the contrary was considered inconsistent with elements of the overriding objective; in particular the saving of expense and allotting to cases an appropriate share of the court’s resources.

The appeal was accordingly allowed, and a direction made for an ENE hearing to be held.

 

Commentary

There is no doubting that ADR has played a significant part in the fundamental re-shaping of the course and conduct of litigation since the CPR came into effect in 1999. As noted by Moylan LJ in his judgment, “the court’s engagement with mediation has progressed significantly since Halsey was decided [in 2004].”

In light of such developments, this case demonstrates that it is no longer sufficient for practitioners to consider ADR as a general concept governed by Halsey; furthermore, that, if a party is not in principle opposed to ADR, their obligations to further the overriding objective and the expectations of the court in this regard are met without more. In this case, it is especially worth noting that the Defendant was not opposed to ADR generally; they were specifically opposed to ENE because they considered that mediation was more appropriate.

The decision makes clear that practitioners should understand and distinguish between the different ADR processes; be able to advise not only on what kind of process would be suitable for what kinds of disputes, but also on which processes are appropriate at various stages of proceedings. Crucially, this also now includes whether and which form of ADR is likely to be ordered by the court’s own initiative under rule 3.3(1) as part of its inherent jurisdiction to manage court proceedings.

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