微密圈

Early neutral evaluation (ENE) has had an injection of get-up-and-go, in a recent case decision. But first things first: have you heard of ENE? It鈥檚 another dispute sorter-outer device in the stable of alternative dispute resolution (ADR). The general idea of all these ADR devices is to coax you not to spend the family fortune on litigation, or rather to find a short cut to solving the kinds of dispute that are commonly found in construction. The cost of litigation is a plague; it always has been thus.

Early neutral evaluation is best described as a robust, judge-led process. The main contractor in a case might be, say, complaining about an underpaid final account by the employer. The Technology and Construction Court (TCC) will appoint a very experienced construction judge to receive a 鈥渃oncise presentation鈥� from the two parties and provide his or her own 鈥渆valuation of the case鈥�. The case presentation includes pre-reading then a short hearing. The judge will ask a variety of questions, then use their considerable experience to express an opinion to the main contractor and employer. The opinion is merely persuasive. Neither party is bound. 

It is designed to help the parties identify and seek to resolve the real issues in the case at a time and in a manner intended to limit the overall financial cost and reduce delay and emotional strain

The idea here is to give you a good idea as to which way the dispute will go. It won鈥檛 work with a final account 鈥� sorry about that. The reason it won鈥檛 work is that I have never seen a 鈥渃oncise presentation鈥� of a main contract final account. Nor can I see how a TCC judge can give an evaluation for the plethora of disputed variations, nor whistle an accurate result for the extension of time claim, to say nothing of the loss and expense claims plus the contra account for all sorts. So no, no to ENE there.

But it will work with a tricky lump of construction law. An ENE of whether the contract contains this or that express term or implied term would be ideal. So too what a clause in an NEC or JCT or ICC contract means. I can just about see ENE working with a question of whether a contract is torpedoed by a wrongful act. It will work too about whether a pay less notice is effective. It won鈥檛 work when 25 lever-arch files have to be rummaged through to examine daywork sheets, site minutes, instructions, provisional sums and more besides. 

ENE has its place, if used with care. The injection of get-up-and-go it received came recently in the case of Lomax vs Lomax ([2019] EWCA Civ 1467). It is nothing to do with construction, but the Court of Appeal made a significant announcement. This is that a judge has the power to oblige a reluctant party to take part in an early neutral evaluation. Yes, they can force the parties on a construction case (and any other case) to play ENE.

When Lomax vs Lomax came to a single judge in the High Court in May this year, the judge said there was no power to order an ENE, unless both parties agreed. Wrong, said the three judges at the next level up (the Court of Appeal). The single judge had pointed to, among other materials, the procedure in the TCC, where an ENE required consent of the parties. But it seems that this enthusiasm for joint consent has merely leaked across from the procedure for mediation, and isn鈥檛 inherent in ENE. The courts have strongly insisted that 鈥渋mposing鈥� mediation is 鈥渁n unacceptable obstruction on the right of access to the courts鈥�. Compulsion to mediate is a violation of human rights.

The court is attracted to the idea that a judge can express a view of the strength and weakness of the parties鈥� case at any time during the process of litigation. It doesn鈥檛 trouble the court if a special session is organised with the judge to mull over the facts and circumstances and the contract with the parties. That is the way of early neutral evaluation. In other words, this is said to be merely doing what a judge can always do. ENE is a direction on procedure within litigation rather than stepping outside litigation into a different process.

ENE really is quite different from mediation. A mediator is a facilitator. He or she is said to have the priority of coaxing settlement, notwithstanding the rights of the parties. The mediator will meet with the parties separately, and have private dialogue. True, the mediator will, or may, undertake 鈥渞eality testing鈥�, where there is some 鈥� only some 鈥� invitation to take a good look at the argument and rights being relied upon 鈥� whereas the person undertaking ENE delivers an opinion based upon the information provided by the parties. There is a completely different emphasis on rights in ENE: they are evaluated against the evidence and law. 

So, the Court of Appeal characterises an evaluation of your position as a part of the ordinary available procedure in litigation. It is designed to enable the judge to be innovative, to help the parties identify and seek to resolve the real issues in the case at a time and in a manner intended to limit the overall financial cost for the parties and to reduce delay as well as emotional and practical strain. 

Tony Bingham is a barrister and arbitrator at 3 Paper 微密圈s, Temple