Are we getting closer to court mandated ADR? A post – Lomax review


There have been two recent cases that have shown the Courts increased interest in ADR. The first, Telecom Centre (UK) Limited v Thomas Sanderson Limited [2020] EWHC 368 (QB) focusses on the use of Early Neutral Evaluation (ENE) and the second McParland & Partners Ltd and another v Whitehead [2020] EWHC 298 (Ch) saw the Chancellor of High Court hinting at the possibility of court-mandated mediation.

 

In Telecom Centre, Master McCloud in the Queen’s Bench Division suggested the use of ENE to help the parties settle the case. The parties had already of their own volition considered an ENE as a way of narrowing the issues. One of the problems Master McCloud focussed on was the lack of specific guidance on the use of ENE in the Queen’s Bench Guide and took this opportunity in her Judgment to share her approach to the process in order to inform other litigants and to perhaps aid the current author of the Queen’s Bench Guide.

 

The Judgment explains the purpose of ENE, when the process might be helpful and how it benefits the parties and the Court. Helpfully, the Judgment also included a precedent version of the order made in the case by Master McCloud, which gives helpful guidance as to what one should expect to be included in such an order.  

 

Not only does this Judgment help other Judges who may wish to consider a direction, or even an order for ENE, but it also demonstrates the Court’s increasing interest in ENE following on from the Judgment in Lomax.

 

ENE obviously has advantages – as Master McCloud said in her Judgment it is especially useful where the resolution of some key issues would encourage settlement of others, however it is important to remember that it is an evaluative process, which can of course result in one party leaving the ENE with a significantly weaker position than it imagined.

This is the opposite of the facilitative approach of mediation, which offers no evaluation of the legal merits of the case but looks to bring the parties to a settlement, which both can live with, I.e. there is no winner but equally there is no loser – an attractive proposition to commercial parties.

 

McParland v Whitehead dealt primarily with the disclosure pilot scheme, but what is of interest from an ADR perspective is the Court’s encouragement of parties to use mediation.

 

Sir Geoffrey raised the issue of whether following on from Lomax it might be possible for courts to require parties to attempt mediation. He observed in his Judgment that the Lomax decision inevitably raised the question of whether the court might also require parties to engage in mediation despite the decision in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 W.L.R. 3002 . You will recall that Halseyestablished that the Court could not compel an unwilling party to engage in mediation.

 

In this case the Court didn’t need to answer that question, as “fortunately” the parties had already agreed that a mediation was to take place.  

 

It will be interesting to follow whether the Court is open to reviewing the Halsey position in future cases.