Lomax v Lomax (Referral to Early Neutral Evaluation)

Under CPR 3.1(2)(m), the court’s power to hear an Early Neutral Evaluation does not clearly extend to compelling unwilling parties to participate. The rule is directed towards case management and facilitating settlement, and is insufficiently precise to create a compulsory ENE procedure. The inherent jurisdiction cannot be used as a substitute for an express procedural power.

ENE and Financial Dispute Resolution are distinct processes. The mandatory nature of FDR in financial remedy proceedings derives from the express provisions of the Family Procedure Rules and cannot simply be imported into civil proceedings governed by the CPR. A case management decision may be revisited where justice requires it, particularly following a prompt correction of a material mistake or omission, but that power remains principled and limited.

The claimant, the widow of the deceased, brought proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 against her stepson concerning provision from the estate and alleged variation of trusts. She sought an Early Neutral Evaluation or Financial Dispute Resolution hearing. The defendant opposed the request.

The judge initially indicated that a judge-led process would be beneficial, but later reconsidered after being referred to commentary on CPR 3.1(2)(m) and conflicting guidance. The central issues were whether the judge could revisit the earlier case management decision and whether the CPR permitted a non-consensual ENE or FDR referral.

1. Reconsideration of the earlier decision. The court could revisit the case management decision under CPR 3.1(7), whether or not the order had been sealed. The power was not open-ended and had to be exercised judicially in accordance with the overriding objective. Relevant considerations included promptness, reliance, prejudice, material change, misstated facts, manifest mistake and a point of law or fact overlooked through genuine error. The failure of both parties to draw attention to directly relevant and conflicting guidance meant that the original decision was flawed. No material detriment had resulted, and reconsideration was therefore just and expedient.
2. Power to compel ENE. The amendment to CPR 3.1(2)(m), influenced by Seals and Seals v Williams, expressly permits the court to hear an ENE for the purpose of helping the parties settle. However, the rule does not clearly state that the court may direct unwilling parties to participate. The absence of an express consent requirement was inconclusive, particularly when the CPR was read as a whole. The court was not sufficiently confident that the rule-makers intended to create a compulsory procedure.
3. ENE and FDR distinguished. ENE involves an independent person expressing an opinion on a dispute or issue. FDR is a more specific and structured process directed towards settlement in financial remedy proceedings. The mandatory FDR regime rests on express provisions of the Family Procedure Rules, including requirements that parties attend and use their best endeavours. Those provisions could not be treated as applying by analogy to civil proceedings under the CPR.
4. Inherent jurisdiction and practical considerations. The inherent jurisdiction could not supply a power which the CPR did not provide. The defendant’s unwillingness, the possible need for substantial disclosure, and the potential cost or involvement of third parties were not themselves reasons against an ENE. The decisive point was the absence of a sufficiently clear power to compel it.
5. The application to order an ENE or FDR was refused. The original directions order, with amended dates, was approved. The judge observed that a judge could still express views or guidance about the likely outcome at a later hearing without the parties’ consent.