Lomax v Lomax [2020] WTLR 191

Analysis

The claimant made an application under the Inheritance (Provision for Family and Dependants) Act 1975 as a widow of the deceased. She wanted the parties to engage in Early Neutral Evaluation (ENE), but the defendant refused to do so. The claimant asked the court to order an ENE under CPR r3.1(2)(m).

At first instance, Parker J made it clear that she believed that an ENE would be of benefit to the parties, but declined to order this. The claimant appealed against the decision not to order an ENE.

The single issue on appeal was whether a court can order an ENE in circumstances where one or more parties refuse to consent to this.

The claimant submitted that a party’s consent was not required for the court to exercise r3.1(2)(m); the effect of implying such a restriction would be that a party would be able to exercise a veto over one of the court’s case management powers.

The defendant submitted that, per the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, the court has no power to order parties to engage in any form of ADR – including ENE. The consensual nature of the power under r3.1(2)(m) was reinforced by other parts of the CPR, including r1.4(2)(e) and the rest of r3.1(2), as well as the various specialist court guides.

Held:

1. 1) The wording of r3.1(2)(m) does not contain an express requirement for the parties to provide consent before an ENE hearing is ordered, so the question was whether such a limitation ought to be implied.
2. 2) There was no reason to imply into r3.1(2)(m) 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. Such an interpretation would be 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.
3. 3) An ENE would be directed to be held as soon as possible.
4. 4) Obiter: ENE is qualitatively different from mediation, as it forms part of the court process rather than sitting outside of it.

JUDGMENT MOYLAN LJ: Introduction [1] The issue in this appeal is the effect of r3.1(2)(m) of the Civil Procedure Rules 1998 (the CPR) when it refers to the court’s powers as including ‘hearing an early neutral evaluation’. [2] Rule 3.1 contains the court’s ‘general powers of management’ and sets out a ‘list of powers’ which …

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