Early Neutral Evaluation (ENE)

Question 1

WHAT ARE THE CHARACTERISTICS OF EARLY NEUTRAL EVALUATION?

Answer 1

• An assessment and evaluation of the facts, evidence and/or legal merits or case as a whole
• ENE is advisory and evaluative rather than facilitative
• A neutral third party evaluates without himself becoming involved in negotiations
• It is private, confidential, the evaluator must be impartial, operating under a code of conduct

Question 2

AT WHAT STAGE SHOULD ENE BE EMPLOYED?

Answer 2

• Usually in the early stages, but can be any time
• Can assist mediation, can be carried out before or during mediation
• ENE can be done by a judge within litigation, parallel to litigation or before litigation

Question 3

HOW DOES ENE HELP SETTLEMENT?

Answer 3

• An unbiased evaluation by a neutral party should help the parties settle the dispute subsequently by negotiation or mediation
• Useful where the parties’ views are unrealistic and entrenched and an independent reality check and assessment is needed
• Enables each party to appreciate the strengths and weaknesses of their case
• It can encourage settlement, even if the parties don’t agree to settle on the basis of the ENE

Question 4

WHO SHOULD BE APPOINTED TO CARRY OUT THE EVALUATION?

Answer 4

• Depends on the issues in the case
• Maybe an expert evaluation
• The parties may privately appoint a neutral party (e.g. solicitor, barrister, or expert)
• They may enlist the help of an ADR provider

Question 5

HOW IS THE PROCEDURE DECIDED?

Answer 5

• Primarily decided by evaluator, fixed after consultation with the parties
• Flexible
• Parties control amount and form of information placed before him
• Parties identify the issues they want him to evaluate
• Usually instructed jointly, but one party can request evaluation for his own case
• If jointly, the parties agree to the terms on which he is instructed and the ambit of the instructions
• The parties can also agree he will carry out his own independent investigations, and make a recommendation based on those
• Evaluator might hold a preliminary meeting to agree on the ground rules, the documentation to be provided, whether a hearing is required, and to set time limits

Question 6

What is the typical ENE procedure?

Answer 6

• Each party usually makes written submissions, with evidence and supporting documents
• An oral hearing may also be arranged
• The evaluator can also hold a meeting to obtain further information about the issues
• The parties and the evaluator decide whether detailed reasons are given
• He will evaluate the evidence and law, bearing in mind the submissions, and produce a recommendation based on the merits of the dispute and its likely outcome

Question 7

What is the nature of the evaluation?

Answer 7

The evaluation is non-binding and the parties don’t have to accept it

Question 8

WHAT IS NEUTRAL FACT FINDING?

Answer 8

• Requiring the evaluator simply to investigate and evaluate the facts (but not the underling issues of law or quantum) and reach a decision based on those facts
• An expert carrying out a non-binding neutral fact-finding mission on one or more of the technical issues can be helpful

Question 9

JUDICIAL EVALUATION

Answer 9

• Parties must agree
• The judge who conducts ENE will then take no further part in the case, unless the parties agree otherwise
• He will issue directions for the preparation and conduct (e.g. dates of submissions and documents exchange)
• He may also require the parties to jointly instruct an expert to help him
• The judge will produce a written report with conclusions and brief reasons
• The judge will normally evaluate the case based on a summary of information

Question 10

WHAT ARE THE KEY FEATURES OF EVALUATION IN PERSONAL INJURY CASES?

Some ADR providers operate evaluation schemes for PI cases

Enables parties to have an idea of the likely outcome at trial

Answer 10

• An independent evaluator with expertise as a DJ
• The parties agree on the issues to be evaluated
• Non-binding (unless the parties agree to be bound by it)
• Each party sends written submissions and relevant documents
• The evaluator delivers a written evaluation within 10 working days
• The evaluation fee will usually be jointly split between the parties (although the costs can be treated as ‘costs in the case’, so the overall loser pays)
• Confidential and without prejudice
• Relatively cheap