Court orders parties to use Alternative Dispute Resolution. Published November 2019

November 29, 2019 10:29 am Published by

Compulsory use of Alternative Dispute Resolution (ADR) could be a step closer following a Court of Appeal ruling. Executors of a will have been ordered to use a form of ADR without the consent of both parties.

The case followed a dispute between Pauline Lomax and her stepson Stuart Lomax, who were joint executors of her late husband’s will. 

Mrs Lomax wanted to change the provisions of the will, which was to pay her an income during her lifetime before passing to the children and grandchildren.  When the executors could not agree, Mrs Lomax proposed using Early Neutral Evaluation (ENE), a form of ADR, but her stepson declined, preferring mediation instead.

ENE is a process where a judge or independent third-party evaluator is given a concise presentation of the arguments by each party.  The judge then provides an evaluation of the case.  ENE aims to encourage a negotiated settlement but cannot be referred to in any later court proceedings.

The dispute between Mrs Lomax and her stepson was heard in the High Court.  The judge was clear that the case “screamed out” for “robust, judge-led” dispute resolution, such as ENE, but decided “on the finest of fine balances” that she could not order ENE without the parties’ consent.

The case went to Appeal, where the judges ruled that an ENE hearing should be heard as soon as possible, despite both parties not consenting.  In making their decision, the judges noted that Civil Procedure Rules, which govern the conduct of cases, did not require parties to consent before an ENE hearing was ordered.  They also took into account the views of the High Court judge, who was clear that the case would benefit from ENE.

Tony Guise, director of DisputesEfiling.com Limited and a past president of the London Solicitors Litigation Association suggested that the move could be a step towards a wider use of ADR. “Perhaps this decision is simply part of the modern trend toward the integration of ADR within the civil litigation system. After all, England and Wales has had compulsory ADR in family law for several years and funded by the state via legal aid,” he said.

James Burgoyne of Brunel Professions says that greater use of ADR would be valuable in settling disputes between professional firms and their clients.  “When a firm falls into dispute with a client, it is inevitably quicker, less expensive and less disruptive for the parties to reach a negotiated settlement, rather than face a protracted legal case,” he said.

News about the case has been published by Fenwick Elliott, Solicitors for the Elderly and Litigations Futures.

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This post was written by James Burgoyne

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