Early neutral evaluation (ENE) is a preliminary assessment of facts, evidence or legal merits. This process is designed to serve as a basis for further and fuller negotiations or, at the very least, to help parties avoid further unnecessary stages in litigation. The process is voluntary, confidential and without prejudice to each party’s legal position.

The parties appoint an independent person who expresses an opinion on the merits of the issues specified by them. It is a non-binding opinion (in contrast to an arbitration award) but provides an unbiased evaluation on relative positions and guidance as to the likely outcome should the case be heard in court. Unlike mediation, ENE is directed to the facts and relevant law.

It is informal, not subject to “due process” and there is no need for a trial type hearing. The evaluator may conduct investigations independently of the parties, with or without a hearing, as the parties agree, and make his evaluation without reference to the parties. The evaluation itself may be given in writing, orally or both, as the parties agree.

Parties should obtain legal advice when embarking on an ENE but do not strictly need to be represented during the hearing.

The evaluator is available to advise and assist with:

establishing a timetable for written submissions, replies and oral submissions as appropriate,
managing the exchange of documentation,
setting up meetings as necessary and
liaising with all parties involved in the process.

ENE is a service offered by Sebastian Calnan of Calnan Cox Solicitors and Commercial Mediators, based in Northants.

A solicitor for over twenty years, he trained and practiced for many years in the City. He has held in-house appointments at 3663 First For Foodservice, DaimlerChrysler UK and Reynard Motorsport. He practices in the areas of supply chain and distribution law, including competition, marketing, data protection, e-commerce and regulatory compliance.

He is a CEDR trained mediator who has conducted mediations involving professional negligence, shareholder and partnership relationships, property repairs and other issues.

He regularly sits as a district judge in the civil courts where he decides cases ranging from contract disputes to employers liability, road traffic and other accident disputes, construction, land and tenancy disputes, property ownership and litigation costs issues. He is therefore especially well placed to be able quickly to evaluate the strengths and weaknesses of each disputant’s position in the face of a pending or actual court case, and to be able to explain that in straightforward language.

It is open to parties to a dispute to invite Calnan Cox to act as a neutral evaluator for their dispute. The ENE service from Calnan Cox is available to the parties at any stage

during their commercial negotiations,
whether or not with the assistance of their accountants, solicitors or other business advisers,
when those negotiations have reached stalemate,
when considering what to do about starting court action,
when considering how to break the logjam of a court action

Benefits

Among the many benefits of this service are:

Independent legal opinion. The parties both receive the same independent view. This helps to get rid of the “my lawyer says this and your lawyer is wrong” argument, which takes valuable time to be played out, is destructive of any goodwill that may exist and requires each party to duplicate expense and effort to move the argument on.

Early availability - before big money is spent

Persuasive. ENE can persuade a difficult opponent to review his position, serving as a second opinion that may be different from his own entrenched view

Cost effectiveness. The cost of the ENE legal view is halved - it is shared by the parties

Easy process. Setting up an ENE is easy can be done very quickly indeed - Approach by one or more parties - Completion of ENE Process Agreement - Arrange delivery of papers and information from all parties to the Evaluator - Evaluation - Result published - Parties free to move forward in their negotiation

Confidentiality and without prejudice. The parties can agree to accept the evaluation or not as they wish.

Parties are better informed for the further stages of dispute resolution, and better able to decide on the next process to adopt - for example mediation, litigation, arbitration.

One or other party should contact us for an initial discussion. See below for a specimen form of agreement

Specimen / Early Neutral Evaluation Agreement

Date:

Parties:

Party A:

Party B:

Party C:

(Jointly “the parties”)

Sebastian Calnan of Catherine House, Harborough Road, Brixworth Northamptonshire, NN6 9BX (“the Evaluator”).

Dispute:
[Set out details of the contract or other legal relationship and brief details of the dispute to be resolved by the Early Neutral Evaluation].

(“The Dispute”)

1...The parties appoint the Evaluator to provide a non-binding decision on the dispute.

2...Unless the parties agree otherwise, this Early Neutral Evaluation will lead to a non-binding decision (“the Decision”) being issued by the Evaluator.

3...The Early Neutral Evaluation process is private and confidential. The parties and the Evaluator will keep the matter entirely confidential except as required by law.

4...The Evaluator is independent of the parties, is neutral and impartial and does not act as an advisor to the parties or any of them.

5...The Evaluator will conduct the Early Neutral Evaluation in accordance with procedural directions which the Evaluator will seek to agree with the parties; it will take the form of a desktop evaluation of written statements and documents provided to him by the parties, with or without a hearing before him (as the parties agree). If directions cannot be agreed between the parties, the Evaluator’s directions will prevail.

6...At any time before the issue of the Evaluator’s Decision, the parties may agree to refer the dispute to mediation. In that case, each of the parties will notify the Evaluator and the Early Neutral Evaluation is suspended. If the dispute is settled by mediation, the Early Neutral Evaluation comes to an end and the parties will settle any outstanding fees and expenses of the Evaluator. If the dispute is not settled by mediation, the Early Neutral Evaluation will resume.

7...The Decision of the Evaluator [shall/shall not] include reasons.

8...Unless the parties agree otherwise, the fees and expenses of the Early Neutral Evaluation will be borne by the parties in equal shares. The fees and expenses will be estimated by the Evaluator and paid to him not less than three days before the date of the Evaluation Hearing, as a condition precedent to the Evaluation. A final account of the fees and expenses will be sent to the parties when the Decision is ready for issue to the parties. The Decision will be released on payment by the parties of any further amounts due.

9...The parties expressly acknowledge that the Decision (1) is personal to the parties, (2) is a means for them to advance their negotiations for resolution of the Dispute, (3) will be no more than an expression of the views of the Evaluator.

10...The parties further acknowledge that none of the Evaluator, his firm and employees shall be liable to them or any of them for the Decision or any act or omission whatsoever in connection with the Early Neutral Evaluation, save that where there is any liability on them because any exclusion is unlawful, such liability shall be limited to the amount of fees received by the Evaluator under this Agreement. This Agreement is not intended to exclude or limit liability for death, personal injury or fraudulent misrepresentation.

11...None of the parties will call the Evaluator as a witness, consultant or other arbitrator in any litigation for arbitration in relation to the dispute and the Evaluator will not act voluntarily in any such capacity without the written agreement of all of the parties.

12...No person other than the parties, the Evaluator, his firm and employees are intended to benefit from and be able, by reason of the Contract (Third Party Rights) Act 1999, to enforce any part of this Agreement.

13...This agreement shall be governed by English law and under the jurisdiction of the English Courts. All the parties to this Agreement agree to refer any dispute arising in connection with it to mediation first.

Signed on behalf of Party A

Signed on behalf of Party B

Signed by the Evaluator