Lomax v Lomax

Factual and Procedural Background

The appeal concerns the interpretation of rule 3.1(2)(m) of the Civil Procedure Rules 1998 ("the CPR"), specifically regarding the court's power to order an Early Neutral Evaluation ("ENE") hearing. The substantive proceedings involve an application by a widow under the Inheritance (Provision for Family & Dependants) Act 1975. By an order dated 20 May 2019, Judge Parker declined to order an ENE hearing, concluding that the court lacked power to do so when one party (the defendant) refused to consent. The claimant appealed, arguing that the court should have the power to order an ENE hearing despite the defendant's opposition. The appeal thus raises a question of principle about the court's case management powers under the CPR.

Legal Issues Presented

1. Does rule 3.1(2)(m) of the CPR permit the court to order an Early Neutral Evaluation hearing without the consent of all parties?
2. Is the court's power to order an ENE hearing constrained by the parties' agreement or can it be exercised unilaterally for case management purposes?

Arguments of the Parties

Appellant's Arguments

• The rule does not expressly require that parties consent to an ENE hearing being ordered.
• There is no implication in the rule that consent is necessary; one party should not have a veto over the court’s case management powers.
• The overriding objective supports interpreting the rule as not requiring party consent, promoting efficient case management and settlement.

Respondent's Arguments

• The defendant is not opposed to alternative dispute resolution generally, but objects specifically to ENE, preferring mediation.
• The court has no power to compel parties to submit disputes to ADR, including ENE, without their consent, relying on the precedent set in Halsey v Milton Keynes General NHS Trust.
• The CPR’s wording, including terms like "encouraging" and "facilitating" in rule 1.4(2)(e), supports that ENE requires party consent.
• Court Guides uniformly state that ENE depends on the parties’ consent, reinforcing that the court cannot order it unilaterally.
• Compelling unwilling parties to attend ENE would obstruct their right of access to the court and increase costs without benefit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002	Whether courts can compel parties to submit disputes to mediation against their will; the importance of party consent for ADR to avoid infringing the right of access to court under Article 6 ECHR.	The court distinguished this precedent as addressing mediation, not ENE, and found it did not assist with interpreting rule 3.1(2)(m) regarding ENE. The court held ENE does not obstruct access to court and thus is not constrained by the Halsey principle.
Seals and Seals v Williams [2015] EWHC 1829 (Ch)	Described the advantages of ENE as a judge-led evaluation process distinct from mediation, useful where parties have differing views on prospects of success.	The court noted this case predated the express incorporation of ENE into the CPR and did not directly assist with the current interpretation but supported the value of ENE.
Bradley v Heslin [2014] EWHC 3267 (Ch)	Emphasized the need for active judicial intervention in dispute resolution, particularly where parties resist ADR.	The court cited this to support the effectiveness of judge-led early resolution processes, including where parties are resistant, reinforcing the utility of ENE.
Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234	Considered the scope and continuing validity of the principles in Halsey.	The court declined to decide the extent to which Halsey remains good law but noted judicial engagement with mediation has progressed significantly since Halsey.

Court's Reasoning and Analysis

The court began by noting that rule 3.1(2)(m) does not expressly require party consent before ordering an ENE hearing, raising the question of whether such a limitation should be implied. The court found that the precedent in Halsey was not directly applicable because it concerned mediation, a different form of ADR, and focused on the right of access to court, which ENE does not obstruct. Unlike mediation, ENE is a court-led evaluation that does not prevent parties from litigating if no settlement is reached. The court rejected the respondent’s reliance on the wording of the CPR and Court Guides as insufficient to imply a consent requirement. It emphasized the demonstrated benefits of judge-led early evaluation processes, such as the Financial Dispute Resolution appointment in family law, including in cases where parties are resistant to ADR. The court concluded that implying a consent requirement would be inconsistent with the overriding objective, particularly regarding saving expense and court resources. Therefore, the court held that the CPR empowers it to order an ENE hearing even if one party objects.

Holding and Implications

The court ALLOWED THE APPEAL and held that under rule 3.1(2)(m) of the CPR, the court may order an Early Neutral Evaluation hearing without requiring the consent of all parties. The direct effect is that the court has the authority to direct an ENE hearing despite opposition from one party. The court directed that such a hearing be held as soon as possible in the present case. No new precedent was set beyond confirming the court’s case management powers under the existing rule and clarifying the limited applicability of Halsey to ENE hearings.