Last Monday, TeCSA and TECBAR held their annual joint conference with an excellent line up of speakers, including Ramsey J, who gave an informative “state of the nation” talk on the TCC, and Akenhead J, who gave an entertaining and practical perspective on early neutral evaluation in the TCC. This post summarises the highlights from Akenhead J’s talk.
What is early neutral evaluation?
Early neutral evaluation (ENE) in the TCC is a form of alternative dispute resolution procedure whereby the parties agree that a TCC judge will provide an evaluation of the full case (or of particular issues). It is up to the parties to agree whether the ENE procedure is without prejudice, or whether any part of it may be referred to at trial or any subsequent hearing. However, it is usually carried out on an entirely without prejudice basis.
What cases are suited to ENE?
At the beginning of Akenhead J’s talk, he asked two questions of the room of approximately 80 construction practitioners (barristers and solicitors):
- Who has undertaken early neutral evaluation?
- Who has seriously considered undertaking early neutral evaluation?
Very few hands were raised in response to both questions. However, despite the apparently small number of hands that went up, the TCC has a much better take up of ENE than the Commercial Court.
Not all construction cases are appropriate for ENE (for instance, adjudication enforcement). In addition, and for obvious reasons, ENE is not particularly appealing to a party who knows that it has the weaker case. Equally, some cases are particularly suited to ENE. For example, a party who feels that suggesting mediation is a sign of weakness may find ENE attractive, because it suggests confidence in its case.
The judge’s evaluation
The ENE can be carried out entirely on paper. Alternatively, there may be an oral hearing (with or without evidence). The judge then issues an “evaluation”, but this is not like a normal court decision. It is more like a summary of what the judge thinks about the merits of the case.
Akenhead J was very positive about the benefits of obtaining what is essentially a judge’s opinion on the merits of the case. This would undoubtedly provide the parties with a good platform for settlement and hopefully deter those clients, as reminisced on by Akenhead J, who, regardless of their lawyer’s advice, want their day in court!
ENE can be used even before proceedings have started
Akenhead J was keen to stress that ENE in the TCC is accessible to parties who have not yet started proceedings, making it clear that parties could apply for an ENE during the pre-action protocol stage. Ramsey J added that, although the TCC may face the administrative problem of assigning a judge for ENE where a claim form has not been issued, the CPR provides the court with the necessary discretion to carry out an ENE before proceedings are commenced. The parties could apply for an order, by consent, for an ENE before proceedings were commenced, in the same way as they might apply to the court for pre-action disclosure.
Ramsey J also suggested that one way around the administrative problem would be for the claimant to issue the claim form at the TCC, but to refrain from serving it and, at the same time, make an application for an ENE. He also mentioned that the working party’s proposals with respect to the pre-action protocol, which will be reviewed when the TCC moves into the Rolls Building, include a proposal that the court should be able to give directions as to the process during this early stage. Any such changes will hopefully put this matter beyond doubt.
Practitioners should consider ENE for every case
Akenhead J’s encouraging words, together with the high standing of TCC judges, underline that practitioners should get into the habit of seriously considering ENE as a form of alternative dispute resolution.