Early Neutral Evaluation

Early neutral evaluation (ENE) sits alongside mediation and arbitration in the range of alternative dispute resolution options that the Civil Procedure Rules Practice Direction on Pre-Action Conduct and Protocols asks parties to consider before litigating, describing it as 'early neutral evaluation, a third party giving an informed opinion on the dispute.' Unlike arbitration, the evaluator's view does not bind the parties — it is meant to give both sides a realistic, outside assessment of the strengths and weaknesses of their case early enough to encourage settlement before the cost of full litigation is incurred. The Practice Direction warns that a party's 'silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs,' which gives ENE (like mediation) real procedural teeth even though engaging with it is not compulsory in itself.

The English courts also have an express case management power to impose ENE once proceedings are under way. CPR rule 3.1(2) lists the court's general powers of case management and includes the power to take 'any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case,' alongside the separate power at rule 3.1(2)(o) to 'order the parties to engage in alternative dispute resolution.' This means a judge can direct a short, focused ENE hearing — often conducted by a different judge to the one who will hear the trial, so as not to prejudge the substantive case — at any stage of a claim's life where it looks likely to help the parties settle, not only as a pre-action step.