It looks difficult to disagree with Lomax v. Lomax [2019] EWCA Civ. 1467 by which the Court of Appeal has not followed Halsey v. Milton Keynes General NHS Trust [2004] 1 WLR 3002 and Seals and Seals v. Williams [2015] EWHC 1829 (Ch) which had held as to mediation that “it is one thing to encourage the parties to agree to mediation… it is another to order them to do so”.

It seems to me that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstacle to their right to access to the Courts.

After pointing out that ENE has to be distinguished from mediation, the Court of Appeal had held that it saw “no reason to imply into subparagraph (iii) of rule 3.1(2) of CPR 1998 any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties is required …”.

The Court of Appeal was certainly right in construing such provision of the CPR in that way.

A doubt remains as to whether using the power to compel the parties to participate to ENE is advisable, when they are all unwilling to do so. Does this not amount to forcing them to do something which, in order to be capable of achieving its results, seems to need that there not be a general negative attitude by all the parties ?