Lomax v Lomax

Under Civil Procedure Rules 1998, rule 3.1(2)(m) empowers the court to order an Early Neutral Evaluation without the parties’ consent. No consensual limitation should be implied where the rule contains none. An Early Neutral Evaluation is a court-managed step which leaves the parties’ right to a judicial determination intact if settlement does not follow. It is therefore materially different from compulsory submission of a dispute to mediation. This construction promotes the overriding objective by helping parties assess settlement and by saving expense and court resources.

A widow brought proceedings under the Inheritance (Provision for Family & Dependants) Act 1975. She sought an Early Neutral Evaluation of her claim against the executor of the deceased’s estate.

Parker J declined to order the hearing on 20 May 2019. She concluded that the court lacked power to direct it without the defendant’s consent, although she would have ordered one if she had possessed that power. The claimant appealed. The central issue was whether rule 3.1(2)(m) of the Civil Procedure Rules 1998 permits a compulsory Early Neutral Evaluation.

1. Appeal allowed. Rule 3.1(2)(m) of the Civil Procedure Rules 1998 contains no express requirement that the parties consent before an Early Neutral Evaluation is ordered. There was no basis for implying such a limitation. The absence of express consent language was a powerful indication that consent was unnecessary.

2. An Early Neutral Evaluation is a step within the court process. It does not require the parties to submit their dispute to mediation and does not prevent a later judicial determination if no settlement follows. Accordingly, the access-to-court concerns discussed in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 did not govern the construction of rule 3.1(2)(m). An additional case-management step was not an unacceptable constraint on access to the court.

3. The references in the procedural rules to encouraging and facilitating alternative dispute resolution did not imply a consent requirement. The court could require the parties to attend the evaluation under rule 3.1(2)(c). A judge’s direct, neutral assessment could focus the parties on settlement and may save, rather than add to, costs, including where the parties initially resist settlement.

4. Court Guides could assist where a rule was ambiguous, but could not suspend or disapply the rules. Commentary in the White Book was likewise not determinative. A consent requirement would be inconsistent with the overriding objective, particularly the saving of expense and appropriate allocation of court resources.

5. In light of Parker J’s view that the dispute would benefit from an evaluation, the Court of Appeal directed that an Early Neutral Evaluation be held as soon as possible.

• Court of Appeal (Civil Division). Allowed the appeal and directed an Early Neutral Evaluation: [2019] EWCA Civ 1467 .
• High Court of Justice, Family Division (Parker J). On 20 May 2019, declined to order an Early Neutral Evaluation because one party did not consent.