July 23, 2015

Early Neutral Evaluation has been described as a process whereby the parties to a dispute “appoint man independent person who expresses an opinion on the merits of the issues specified by them. This opinion is non binding but provides an unbiased evaluation on relative positions and guidance as to the likely outcome should the case be heard in Court”. (Centre for Effective Dispute Resolution)

In a recent High Court case in England, Seals v Florence Anne Williams [2015] EWHC 1829 (Ch), the English High Court commented that Early Neutral Evaluations are being regularly used by parties engaged in litigation and the move is “warmly to be welcomed”. The Court described the key advantage of such a procedure as being that “a Judge will evaluate the respective parties’ cases in a direct way and may well provide an authoritive (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 prospects of success and perhaps an inadequate understanding of the risks of litigation itself”.

The case concerned proceedings under the 1975 Inheritance Act (in Northern Ireland, the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979) against the Estate of the Plaintiffs’ late father. The sole Executrix and beneficiary of the Estate was a Mrs Williams. Pursuant to a distinct set of proceedings concerning title to the property which comprised the bulk of the Estate and the subsequent Inheritance Act claim, there was a great deal of acrimony between the parties and the positions of the parties were in danger of becoming irreversibly entrenched.

The English High Court considered that an Early Neutral Evaluation procedure would advance the Overriding Objective of the Rules of Court. In Northern Ireland, the Overriding Objective of the Rules of Court is set out at Rule 1A of the Rules of the Court of Judicature (NI) 1980.

The Overriding Objective of the Rules is to enable the Court to deal with cases justly and this includes:

• Ensuring that the parties are on an equal footing;
• Saving expense;
• Dealing with the case in ways which are proportionate to:

The amount of money involved;
The importance of the case;
The complexity of the issues;
The financial position of each party;
and Ensuring that the case is dealt with expeditiously and fairly;
Allotting to it an appropriate share of the Court’s resources;

In the case of Seals v Williams, the parties accepted that an Early Neutral Evaluation by a High Court Judge would be part of the Judge’s judicial function in enabling the parties to resolve the dispute and would assist in the discharge of the obligation to abide by the Overriding Objective. The Judge would have the opportunity to make non binding recommendations as to the outcome and to state short reasons for the recommendations, without in any sense attempting a provisional Judgment. Indeed, the relevant Judge would not be further involved in the proceedings if the Early Neutral Evaluation did not lead to a settlement agreement between the parties on the basis of his recommendations.

Whilst a Judge is not bound to conduct an Early Neutral Evaluation, the English High Court stressed that if the parties asked a Judge to express provisional views on particular hypotheses, or upon the Judge’s overall impression of the case so far, then it is part of the judicial function for the Judge to accede to doing so.

Increasingly, the Northern Irish judiciary are promoting Early Neutral Evaluations as a highly effective alternative dispute resolution procedure. Indeed, the current Commercial List Judge of the High Court in Northern Ireland, Mr Justice Weatherup has recently conducted an Early Neutral Evaluation and has consistently advocated the merits of this procedure.

Jonathan Forrester, Director, Cleaver Fulton Rankin

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.