Landmark ADR Ruling
Mrs Justice Parker’s recent judgment in Lomax v Lomax  EWHC 1267 (Fam) has been reversed by the Court of Appeal (Lomax v Lomax  EWCA 1467 (Civ), confirming that parties to a dispute can be compelled to engage in certain types of alternative dispute resolution (ADR). The ruling has important implications for disputing parties, some of which we will examine here.
The legal dispute between Pauline Lomax and Stuart Lomax concerned a Will, with one executor, the widow of the deceased testator, making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the other executor, her stepson, arguing that she (the widow) was entitled to a larger proportion of the estate than she was due to receive. The stepson, also representing the other beneficiaries under the will, disputed this.
The original decision
In her first instance High Court ruling Justice Parker determined that it was not within her power to order a form of ADR known as early neutral evaluation (ENE) if one of the disputing parties did not give consent. She held that Civil Procedure Rule (CPR) 1.4(1)(e) gave her the power to facilitate and encourage ADR but not the ability to compel an unwilling party to participate. However, despite this position, Justice Parker admitted that the case “cried out” for judge-led ADR.
This decision appeared to support the position reached at the Court of Appeal in the 2004 case of Halsey v Milton Keynes General NHS Trust. This case established that although courts could encourage ADR (including the imposition of costs sanctions for instances where parties unreasonably refuse to mediate), they could not compel parties to take part, not least because this would likely breach Article 6 of the European Convention on Human Rights.
At the Court of Appeal
The Court of Appeal found in favour of the widow. Crucially, it ruled that CPR 3.1(2)(m) contained no explicit requirement for disputing parties to consent to ENE. Furthermore, it held that Halsey was not directly relevant to Lomax, as this latter case concerned the use of ENE as part of the court process.
The Court of Appeal held that the court could order an ENE hearing without the mutual consent of disputing parties. It outlined the ways in which financial dispute resolution (FDR) hearings in the Family Court had helped to resolve similar disputes. It further stated that ruling out ENE in such cases would contradict the CPR’s objective of saving time and expense during the civil litigation process. The ruling in no way affects the ability of courts to settle cases that remain unresolved following an ENE hearing.
What the ruling means for you
The Lomax decision provides important clarification regarding the civil procedure rules, alternative dispute resolution, and early neutral evaluation compulsion within the civil courts. It indicates that attitudes towards mediation and ADR have considerably moved on since the time of Halsey.
It also indicates that any decision to compel disputing parties to try ADR will not jeopardise their ability to access the court system. Furthermore, Lomax shows us that the courts are serious about applying the CPR’s overriding objective of reducing the cost and time burdens that so often impair the efficient operation of the civil courts system.
The Court of Appeal ruling in Lomax v Lomax is a welcome development and should be borne in mind by disputing parties. It is important to show commitment to ADR when engaged in a dispute and any failures in this regard are unlikely to be looked upon kindly by judges and the courts system.
Dispute resolution with Wellers Law
Our team of expert litigators and dispute resolution solicitors can help you if you are involved in a dispute in relation to probate, inheritance, divorce and a wide variety of other types of dispute.
Litigation is complex process, our team can be on hand to assist you in mitigating the stress and associated costs and will always seek the most positive course of action for your individual circumstances.
Contact the team today in our London, Bromley and, Sevenoaks or Kent offices.