Early Neutral Evaluation – How Might It Assist Your Client?

The TCC, Commercial Court and Chancery Divisions of the High Court already have established Early Neutral Evaluation (ENE) provisions, often judge-led.  This article is aimed at private ENE outside of those existing provisions. The article considers those disputes in which ENE is less commonly used, such as professional negligence actions, personal injury claims and contractual disputes.

The use of Early Neutral Evaluation is encouraged by the courts and some circuits provide a type of ENE in the form of conciliation CMCs.  These were more common before 2020, and rely heavily on the judge/DJ having been given the time to read and digest the papers.  These conciliation CMCs can be useful but the overview given by the judge can be very impressionistic and sometimes the judicial insight (if unfavourable) can be dismissed by sceptical clients and insurers as being skewed by judges wishing to clear their lists and promote settlement by undermining everyone's case