Whilst it’s not a new innovation, Early Neutral Evaluation (ENE) is a form of Alternative Dispute Resolution (ADR) that, at least in England and Wales, is increasingly finding favour with the courts. Coming in a variety of flavours, all ENEs have the broad aim of giving parties a neutral, objective view of their relative strengths, weaknesses and prospects of success of a dispute.
Our construction team has recently had a positive experience in a court-sponsored ENE which took place in an effort to avoid a substantial trial. The dispute involved complex legal arguments. The case was heavily reliant on facts and expert evidence, with the trial bundle running to more than 130 files. The ENE took place late in the day – some six weeks before the trial was due to commence.
With the agreement of all parties, the court appointed an independent judge to undertake the evaluation. The judge very quickly digested the core bundle and held a brief hearing during which parties were given a short period to present their case.
After hearing submissions, the court adjourned for a matter of days for consideration of the issues, and when the court resumed the judge provided her evaluation. Following this, parties were provided the opportunity to consider the evaluation and negotiate as appropriate.
Irrespective of the end result of the process, what impressed our team was the way the Judge very quickly focussed the dispute and gave clarity to the key arguments. It undoubtedly gave parties a realistic indication of the strength of their relative positions and provided a platform for without prejudice discussions to take place.
As with all forms of ADR, whether ENE will really offer clients a better option for resolving their dispute will depend on the case, the size and nature of the dispute, the parties involved and also the genuine commitment of those involved in resolving it.
Certainly for construction-related disputes, ENE seems to be on the agenda, particularly in England and Wales where both the Technology and Construction Court and the Commercial Court already make allowance for it in their recently updated guides.
An absence of similar court provisions in Scotland and Northern Ireland need not be a bar to making use of ENE. Many industry bodies such as the Royal Institute of Chartered Surveyors (RICS) already provide an extra-judicial ENE service and the flexibility of such services allows parties to tailor the scope of their evaluation.
ENE is an alternative form of dispute resolution which can offer clients a valuable option for resolving their disputes and is certainly something we will give serious consideration to in the future.