Ordering Judicial ENE in a contested application

Judicial ENE

I am writing a new article for publication by Trusts & Trustees (Oxford University Press): https://academic.oup.com/tandt in September, which is provisionally entitled,

When is it appropriate for the court to order Judicial ENE in a contested application?’

The basic structure of the article is: 

  • It is not a question of whether the court can order Judicial ENE in a contested civil application, but of when – Lomax v Lomax. [2019] EWCA Civ 1467;
  • Jurisdiction – i.e. the power to order;
  • Logistics and timing – the application procedure;
  • Is the candle worth the flame? – carrying out a preliminary costs and other litigation risks analysis;
  • Merits – factors to be taken into account by the court; and
  • Conclusions.

I recently calculated that Judicial ENE can (depending upon mediator fees and the length of the mediation) cost 91.7% less than mediation. The power of the court to order Judicial ENE (without consent) is not limited to contentious probate and trust disputes. Because a Judicial ENE hearing/appointment can be dealt with partly on paper, and partly as a virtual hearing, given the restrictions placed upon travel globally by COVID-19, the power of the court to order Judicial ENE in an appropriate case could result in the early settlement of cases involving parties locked-down in different jurisdictions. I am appearing for the Claimant in an application for Judicial ENE that has been listed to be heard in mid-July (although this may now be re-listed). The Defendants have opposed the application. So the question of when it is appropriate to order Judicial-ENE will be before a court of first instance once again quite soon.

Based upon the method of dispute resolution called ‘Guided Settlement’, discussed in paragraph 10.8 of my book the ‘Contentious Probate Handbook’, published by the Law Society, I am also developing and will set out at the end of my article, a new method of ADR, which I call ‘Judicial Guided Settlement’. This is a hybrid of Judicial ENE and evaluative mediation.

For more about evaluative mediation, see also the recent article by Anthony Trace QC published in the Lawyer monthly in April, ‘The Difficulties Posed in Mediating Cases Relating to Fraud and How to Overcome Them’: www.lawyer-monthly.com/2020/04/the-difficulties-posed-in-mediating-cases-relating-to-fraud-and-how-to-overcome-them/