Lomax v Lomax as Executor of the Estate of Alan Joseph Lomax (Deceased)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Rose,Lord Justice McCombe |
| Judgment Date | 06 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1467 |
| Docket Number | Case No: B6/2019/1369 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 August 2019 |
[2019] EWCA Civ 1467
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE PARKER)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Moylan
and
Lady Justice Rose
Case No: B6/2019/1369
Mr C Buckingham (instructed by KBL Solicitors LLP) appeared on behalf of the Appellant
Mr T Entwistle (instructed by Raworths LLP Solicitors) appeared on behalf of the Respondent
(As Approved)
Introduction
The issue in this appeal is the effect of rule 3.1(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”.
Rule 3.1 contains the court's “general powers of management” and sets out a “list of powers” which are in addition to any other powers the court might have. The list, in subparagraph (2), includes at (m) that the court may “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case”.
Does this provision mean that the court can only order that an Early Neutral Evaluation (“ENE”) hearing takes place if all the parties agree? Or, does it mean that the court can order that such a hearing takes place whether or not the parties agree?
Background
The substantive proceedings comprise an application by a widow under the Inheritance (Provision for Family & Dependants) Act 1975. By her order dated 20 May 2019, Parker J declined to order an ENE hearing. She decided that the court did not have power to do so when, as in this case, one party refused to consent to such a hearing.
The party who opposed an ENE hearing is the defendant (the respondent to this appeal). The claimant (the appellant) seeks such a hearing and submits that the judge was entitled to order and should have ordered it to take place despite the defendant's opposition. It is clear from Parker J's judgment that, if she had concluded she had power to order an ENE hearing, she would have done so. The issue on this appeal is, therefore, largely one of principle, as summarised above.
Legal Framework
Reference to an ENE hearing was incorporated into rule 3.1(2)(m) by the Civil Procedure (Amendment No. 4) Rules 2015. It came into effect on 1 October 2015.
Paragraph (m), as I have said, appears in a list of other powers available to the court. It provides that, among the steps the court can take and among the orders it can make, is to hear an ENE. There are no express words either in rule 3.1 generally or specifically in subparagraph (m) to the effect that an ENE hearing can only be ordered if all the parties consent.
We were also referred during the course of the parties' submissions to the overriding objective, which I do not propose to set out; to rule 1.4(2)(e), which states that active case management includes “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure”; and to rule 3.3(1), which provides, “Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative”.
Until recently the commentary on rule 3.1(2)(m) in the White Book 2019, at 3.1.13, stated that:
“The court's decision whether or not to conduct ENE is not dependent in any way on the consent of the parties. It is simply part of the court's inherent jurisdiction to control proceedings.”
This has been changed in the Second Cumulative Supplement dated 7 June 2019. The reference to consent not being required is removed. It is noted that ENE is mentioned in “many Court Guides and, [that] in all of those Guides, it is still said to depend upon the consent of all parties”. Parker J's decision in this case is also noted as is the earlier decision of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002.
We have been referred specifically to the Chancery Guide, paragraphs 18.7, 18.8 and 18.9; the Commercial Court Guide, paragraph G2.3; and the Technology and Construction Court Guide, paragraph 7.5. Additionally, we were referred to Civil Procedure News, C.P.N. 2015, 8(Sep), 7–8, which was to the same effect as the previous commentary in the White Book, namely that the power to order an ENE “is not constrained by the need to secure party consent”.
The authorities to which we have been referred include, in particular, Halsey v Milton Keynes General NHS Trust and Seals and Seals v Williams [2015] EWHC 1829 (Ch). In the former decision, Dyson LJ (as he then was), giving the judgment of the court, said at paragraph 9:
“We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
The judgment then refers to Article 6 of the European Convention on Human Rights, adding that:
“… it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6.”
In paragraph 10 the judgment states:
“… if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it.”
And in paragraph 11 it states:
“… we reiterate that the court's role is to encourage, not to compel.”
In Seals and Seals v Williams, which was decided before the rules changed expressly to incorporate ENE, Norris J said at paragraph 3:
“The advantage of such a process [ENE] over mediation itself is that a judge will evaluate the respective parties' cases in a direct way and may well provide an authoritative (albeit provisional) view of the legal issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues. The process is particularly useful where the parties have very differing views of the prospect of success and perhaps an inadequate understanding of the risks of litigation itself.”
I would also refer to the equivalent hearing in financial remedy cases in the Family Court and the Family Division, the Financial Dispute Resolution appointment. This was initially introduced on a trial basis in 1996. Its success meant that...
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