Early Neutral Evaluation ' How Might It Assist Your Client?

• Published date: 27 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Gatehouse Chambers
• Author: Mr Colm Nugent

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 equally. However unfair this may be, it can allow the client to discount adverse judicial comment in these hearing.

This is where written Early Neutral Evaluation can be helpful. It is an added element to promote settlement that far too few clients consider, despite the relatively modest cost vs likely benefit potential.

I use this most recent example as illustration: I was instructed to provide an opinion in an ENE in which a liability-denied personal injury claim was struck out as a result of procedural default. The claimant brought a claim against their former solicitors and – as might be imagined – breach of duty was conceded. It was a professional negligence action arising out of the handling of a personal injury claim.

As with so many professional negligence claims in similar circumstances, the quantification of loss of chance was the sticking-point as between the parties. The claimant was convinced that their claim would have had a very high chance of success at trial, and accordingly the loss of chance was more than 70%.

The defendant, the claimant's former solicitor, argued that in fact the underlying claim was weak and the fact it was struck out was merely a precursor to its inevitable defeat at a trial.

Added to the mix, was a modest commercial offer by the defendant in the underlying claim which the claimant had not wanted to accept, but their former solicitor had recommended was accepted before the claim was struck out.

The matter was therefore set for trial, with both sides taking...