‘Tis the season, blah, blah, blah…Peace on earth and goodwill to all men…
When I first started out as a solicitor, raring to do justice, defending the underdog, and protecting the innocent, (the usual), I was struck with a variety of differing rules and regulations dependent upon the jurisdiction of specific courts to deal with various matters. The County Court had the green book. The High Court had the white book.
Lord Justice Wolf, then set in motion the Civil Procedure Rules 1998 (‘CPR’), which had, in turn, an impact upon the criminal jurisdictions, namely the Criminal Procedure Rules, and the family courts, the Family Procedure Rules 2010 (‘FPR’). It is natural therefore that the rules and culture would adapt and evolve in time, tailor-made to family law or civil litigation as the case may be. Every so often, one or the other jurisdiction re-considers developments to their respective system as to whether it can be incorporated.
I practice in a number of jurisdictions including the commercial, criminal, family, and children: private law jurisdictions. I am frequently surprised that those solicitors and barristers, who practice specialist subjects in certain jurisdictions, are not aware of the rules of other jurisdictions, and developments of law and case law on certain issues. So often, jurisdictions overlap on issues which can be determined in courts (i.e. fraud in civil and criminal courts; property disputes involving family homes in both civil and family law jurisdictions).
Case law and treatment of certain issues for example, limited liability company considerations evolved into a different animal in family courts for some years, to limited liability company considerations in the commercial courts, resulting in a key decision, which imposed the same considerations and treatment of shares and shareholdings irrespective of being a family business or not, on par. Prest v Petrodel  UKSC 34.
What about settlement?
The overriding objective of the CPR is set out at Part 1. The salient objectives for the purposes of this blog post are dealing with cases justly and at proportionate cost. Ensuring that cases are dealt with expeditiously and fairly, and that a case is allotted to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.
The court’s duties then continue as to how to manage cases, at CPR Part 1.4. For the purposes of this blog post, the relevant duties are:
- Encouraging the parties to co-operate with each other in the conduct of the proceedings;
- Identifying the issues at an early stage;
- Encouraging the parties to use an alternative dispute resolution (GL) procedure if the court considers that appropriate and facilitating the use of such procedure;
- Helping the parties to settle the whole or part of the case;
CPR Part 1.4.11 provides further information: Effectively the court can and generally does factor into court timetables the need to discuss between themselves and to seek alternative dispute resolution. The court has an inherent jurisdiction to stay the whole or any part of proceedings and this is recited in r3.1.(2)(f). In other words, a positive duty not to litigate, but to try and settle matters.
There is also a further provision to encourage the parties to use alternative dispute resolution, which is ordering the use of Early Neutral Evaluation (r3.1.(2)(m). This is an attempt to bring into line the forward-thinking process of the family courts to the civil courts.
The FPR have developed and evolved the overriding objectives differently. The court’s powers are extended in FPR in dealing with ADR including mediation.
Practice Direction 3A of the FPR (FPR PD 3A) states:
‘There is a general acknowledgment that an adversarial court process is not always best-suited to the resolution of family disputes, particularly private law disputes between parents relating to children, with such disputes often best resolved through discussion and agreement’…’Parties will therefore be expected to explore the scope for resolving their dispute through mediation before embarking on the court process’…’all potential applicants for a court order in relevant family proceedings will be expected, before making their application, to have followed the steps set out in the protocol’.
FPR, r3.2 sets out the objective that at every stage in the proceedings, consideration must be given as to whether the ADR is an appropriate mechanism to be utilised to resolve matters.
In FPR, an application made to the courts is not considered a hostile or aggressive act, but rather a natural step in proceedings to progress matters. Applications for a financial remedy are usually followed by what civil practitioners know as a Case Management Conference. In family law such a conference is known as an FDA, a first directions appointment. Directions are set as to next steps, but instead of a stay of proceedings being directed or ordered as in civil law, in family law, the natural next step is to attend an FDR, a family dispute resolution hearing.
Unlike in civil procedure, there are three official opportunities for a dispute to be resolved: The FDA, the FDR, or at an FDH, a financial dispute hearing. Be aware that the Parties could agree to settle matters at any time during proceedings in civil or family jurisdictions. The Judge who considered the FDR cannot be the same Judge who considers the FDH.
The FDR is effectively a Without Prejudice hearing before a Judge where the issues are narrowed down, without prejudice correspondence is also available to the court, as are Form Es, and financial information between the Parties including within Form E, the income and capital needs of each Party. The Judge considers the information and indicates the costs incurred, and the costs to be incurred of progressing in the absence of settlement, and also indicates the likely split between the Parties financially, if he/she were judging the case. The comments made are usually sobering. It is quite informal. It is usual for a Judge to address each of the Parties directly and to adopt a more approachable and human side (More of a Grandparent and mentor, giving words of wisdom philosophically).
The point is that although not necessarily adversarial litigation in family courts, there is plenty of vitriol and acidity left in acrimonious divorces, and yet built into the very fabric of financial applications are mechanisms to engage in disputed hearings. I have been involved in numerous cases like this, and more times than not, settlement is achieved at least in terms of headline figures and issues, to be approved by a Judge in principle, rather than a full draft financial remedies order being drafted that same day, and usually submitted later.
What is Early Neutral Evaluation? (‘ENE’)
This is a relatively new concept in the Civil Procedure Rules, although in the family courts it is standard practice, as set out above. Reference to ENE was inserted into r3.1.(2)(m) by the Civil Procedure (Amendment No.4) Rules 2015 and came into force on 1st October 2015.
Shortly after coming into force Lord Justice Briggs published the Civil Courts Structural Review: Interim Report in December 2015. https://www.judiciary.gov.uk/wp-content/uploads/2016/01/ccsr-interim-report-dec-15-final1.pdf It was as expected, a very thorough report on a number of matters including ENE, use of technology to make the court system and process more efficient, the delegation of powers to case officers and other delegated Judges to ease pressure in the London courts generally.
There was an acknowledgement that there was a dearth of legal aid and that in this post-apocalyptic, politically sensitive, and economically unstable landscape, there had been a distinct rise of litigants-in-person [pages 36-38 of the Briggs Report].
ENE is not dependent on the consent of the parties. It is just part of the court’s inherent jurisdiction to control proceedings. The courts are entitled to express a provisional view and that view is not binding upon the parties.
Although in recent proceedings, I suggested such a direction, it was frowned upon by the other side, and the Judge, considering directions, felt that a stay of proceedings was more appropriate for negotiations to be explored.
If ENE is to work as a mainstream option in civil law, it should be better explained to the public and to lawyers alike who may find the very thought, incompatible with the usual pattern of negotiating.
I have not experienced an ENE. I very much hope that it is presented in the same informal environment, and in the same atmosphere as an FDR hearing where the Parties see the Judge briefly, and then throughout the day, they come back before the Judge to tell them where they have got to in terms of progress, and obstacles and the Judge gives them a helping hand to get to a position and throughout, gives an indication as to how the case might be judged on the basis of information currently before the court.
FDR clearly works as a concept. I very much hope that ENE works just as well. Settling cases is not only good for the emotional welfare of the parties, but saves costs for the parties, and time for the court which can be spent on other cases.
A litigant-in-person, friendly Judge who recognises the emotional stress and strain of a court case, and adds the human touch of a family Judge, managing the emotional intelligence of the Parties, may well achieve a better result, than a forceful regime of unforgiving sanctions for failing to comply with court directions and court orders.
Our civil legal system may well be combative and adversarial in nature, but the ENE need not be.
As I am regularly reminded in family cases where touchy-feely thinking is better received:
‘You catch more flies with honey than you do with vinegar’.
Some honey at an ENE may go a long way to calm emotions and get a deal on the table, with the sobering thought of vinegar in terms of costs, time, uncertainty, and heartache, if the case were to continue to trial without being resolved.
Beware the lawyer for both buyer and seller. Buyer beware.
This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is a strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.