Early Neutral Evaluation

Early Neutral Evaluation in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]An early neutral evaluation (“ENE”) may be carried out by any appropriately qualified person, whose opinion is likely to be respected by the parties. In an appropriate case, and with the consent of all parties, a Technology and Construction Court judge may provide an early neutral evaluation either in respect of the full case or of particular issues arising within it. Unless the parties otherwise agree the early neutral evaluation will be produced in writing and will set out conclusions and brief reasons. Such an early neutral evaluation will not, save with the agreement of the parties, be binding on the parties. If the parties would like an early neutral evaluation to be carried out by the court, then they can seek an appropriate order from the assigned judge either at the first case management conference or at any time prior to the commencement of the trial. The assigned judge may choose to do the early neutral evaluation himself. In such instance, the judge will take no further part in the proceedings once he has produced the ENE, unless the parties expressly agree otherwise. Alternatively, the assigned judge will select another available Technology and Construction Court judge to undertake the ENE. The judge undertaking the early neutral evaluation will give appropriate directions for the preparation and conduct of the ENE. These directions will generally be agreed by the parties and may include: • a stay of the substantive proceedings whilst the early neutral evaluation is carried out. • a direction that the early neutral evaluation is to be carried out entirely on paper with dates for the exchange of submissions. • a direction that particular documents or information should be provided by a party. • a direction that there will be an oral hearing (either with or without evidence), with dates for all the necessary steps for submissions, witness statements and expert evidence leading to that hearing. If there is an oral hearing the early neutral evaluation will generally not last more than one day. • a statement that the parties agree or do not agree that the early neutral evaluation procedure and the documents, submissions or evidence produced in relation to the early neutral evaluation are to be without prejudice, or, alternatively, that the whole or part of those items are not without prejudice and can be referred to at any subsequent trial or hearing. • a statement whether the parties agree that the judge’s evaluation after the early neutral evaluation process will be binding on the parties or binding in certain circumstances (e.g. if not disputed within a period) or temporarily binding subject to a final decision in arbitration, litigation or final agreement.