Dr. Andre Alexander, SJD, LLB
Barrister, Solicitor (Dutch-Brussels Bar, High Court of Fiji)
Authorised for Legal Practice in England and Wales (RFL – Solicitors Regulation Authority)
Chief Registrar, ICDRO – International Commission of Dispute Resolution Online

Introduction

Litigation in 2026 feels very different from litigation twenty years ago. Cases are larger, disclosure is heavier, digital evidence is relentless, quantum has grown and delay has become normalised. As such, even where parties “win,” the financial and emotional toll can be devastating.

Mediation and arbitration have long provided valuable alternatives, yet they too are feeling the strain. Complex mediations now resemble mini-trials and arbitrations can rival court proceedings in length and cost. Accordingly, the promise of speed and efficiency sometimes dissolves under the weight of modern disputes.

Against this backdrop, Early Neutral Evaluation (ENE) has quietly moved from procedural curiosity to strategic necessity.

ENE offers something that parties rarely receive early in litigation: an authoritative, independent view of the strengths and weaknesses of their case before positions harden and costs escalate. It is not about avoiding adjudication. It is about becoming properly informed before doubling down.

This article examines how ENE operates under the Civil Procedure Rules (CPR), the practical routes to obtaining it, the evolving judicial encouragement of ADR, and why, in strategic terms, ENE is increasingly difficult to ignore.

ENE Under the Civil Procedure Rules

ENE is not an informal innovation. It is explicitly recognised within the CPR.

CPR Part 3 Rule 3.1(2)(p) provides that the court may take steps to further the overriding objective, including:

“hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”

This provision makes clear that ENE is not peripheral to case management. It sits squarely within the court’s procedural toolkit.

The High Court reinforced this position in Telecom Centre (UK) Ltd v Thomas Sanderson Ltd [2020] EWHC 368 (QB). In that case, the court confirmed that ENE is a structured and legitimate mechanism designed to promote settlement and procedural efficiency. It is not an experimental device. It is an established judicial power.

In essence, ENE has four defining characteristics:

• An independent evaluator provides a preliminary opinion on merits, quantum, or specific issues.
• The process is ordinarily conducted on a without prejudice basis.
• The opinion is non-binding unless the parties expressly agree otherwise.
• Its purpose is evaluative, not determinative.

This last point is critical. ENE does not decide the case. It does not replace trial. It informs strategy.

Unlike mediation, where the neutral facilitates dialogue without expressing views on merits, ENE involves evaluative candour. The evaluator may say plainly: “On the evidence presently before me, this argument is weak,” or “Quantum exposure may be significantly higher than assumed.”

That clarity can be transformative.

How to Bring ENE Into Play

If proceedings are governed by the CPR, there are two primary routes to ENE.

1. At the Case Management Stage

The most straightforward path is at a Case Management Conference (CMC). A party may invite the court to direct ENE or include it within proposed directions.

Judges often welcome this approach. It integrates ENE into the broader architecture of case management and avoids unnecessary interlocutory skirmishing. Where both parties recognise potential value, agreement at CMC can make ENE seamless.

2. By Formal Application

If no CMC is imminent, ENE can be sought by Application Notice (Form N244) under CPR Part 23.

The application typically seeks:

• An order under CPR 3.1(2)(p) directing ENE;
• A short stay of proceedings;
• Directions governing scope, timing, and process.

Where appropriate, parties may also request that ENE be conducted by a judge other than the eventual trial judge. This is particularly relevant where the ENE will involve candid without-prejudice material, settlement ranges, or sensitive commercial disclosures.

In practice, specialist lists such as the Commercial Court, the TCC, and Chancery are familiar with this “judicial firewall” approach. It preserves the integrity and perceived impartiality of any subsequent trial.

However, judicial allocation remains entirely discretionary. A party may invite the court to appoint a different judge, but there is no entitlement to demand one. The court must balance fairness, judicial resources, and proportionality.

ENE – The Post-Lomax and Post-Churchill Landscape

Two Court of Appeal decisions have significantly shaped the ADR terrain.

In Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal confirmed that ENE may be ordered even without the parties’ consent. This was an important clarification. It reinforced that ENE is a case management power, not merely a consensual exercise.

More recently, Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 reshaped the broader ADR conversation. The Court of Appeal confirmed that courts may lawfully stay proceedings or order parties to engage in non-court dispute resolution, provided the order is proportionate and does not impair the essence of Article 6 rights.

In practical terms, judicial encouragement of ADR is no longer rhetorical. It is embedded in the procedural culture.

Subsequent CPR amendments have reinforced this trajectory. The overriding objective now expressly promotes ADR engagement. Courts are encouraged to order or facilitate ADR where appropriate. And unreasonable refusal may have costs consequences under CPR Part 44.

In this environment, resisting a proportionate ENE proposal without cogent justification may no longer be neutral territory. It may be strategically risky.

Why ENE Works Strategically

Litigation psychology matters.

Clients often approach disputes with understandable conviction. Lawyers, invested in their analysis, may equally develop strong views. As proceedings progress, sunk costs and procedural momentum can entrench positions.

ENE interrupts that escalation.

It provides:

• Early merits clarification.
• An independent quantum assessment.
• Identification of evidential weaknesses.
• Narrowing of live issues.
• Recalibration of unrealistic expectations.

In complex commercial cases, ENE may focus on a discrete legal issue capable of resolving the wider dispute. In employment matters, it may assess liability and indicative compensation. In professional negligence claims, it may provide a structured evaluation of causation and loss.

Importantly, ENE does not compel settlement. It empowers informed decision-making.

There is also a reputational dimension. Public trials carry exposure. An early evaluative opinion may create settlement momentum before reputational harm crystallises.

From a resource perspective, ENE can save not only legal fees but management time and strategic distraction.

ENE Beyond the Courts

ENE is not confined to judicial proceedings. Institutional ADR frameworks increasingly offer standalone ENE services.

These models often mirror High Court principles but add procedural flexibility. Evaluators may be senior barristers, retired judges, or subject-matter experts. Submissions are tightly managed. Confidentiality is robust. Timelines are compressed.

Online platforms have further streamlined the process. Digital hearings, document portals, and defined timetables allow cross-border disputes to receive rapid evaluative input without geographic constraint.

One such model is operated by the International Commission of Dispute Resolution Online (ICDRO). Under its procedural rules, parties may request ENE by email at any stage of proceedings. The Chief Registrar responds within three days, either accepting the application and fixing costs or declining it.

If accepted, the appointed evaluator issues procedural directions within three days covering:

• Skeleton arguments and page limits;
• Evidential notices;
• Document exchange deadlines;
• Hearing date and duration;
• Form of opinion;
• Return of materials;
• Confidentiality safeguards.

The process is designed to be expeditious and proportionate.

Of course, parties should always review institutional rules carefully to ensure compatibility with ongoing proceedings and cost expectations.

A Human Perspective

At its core, ENE is about realism.

Litigation is adversarial. But it need not be blind.

Many disputes escalate because neither side receives credible early feedback. Each relies on internal conviction. ENE introduces disciplined external assessment. It asks: what is this case truly worth? What is its real weakness? What risk are we actually carrying?

That is not a sign of weakness. It is a mark of strategic maturity.

For lawyers, ENE can sharpen analysis and strengthen negotiation posture. For clients, it provides clarity at a point where uncertainty often dominates.

Conclusion

Early Neutral Evaluation is not a substitute for trial. Nor is it a panacea. It is, however, a powerful procedural and strategic instrument within modern dispute resolution and one that offers clarity at a stage where uncertainty often drives cost and entrenches positions unnecessarily.

Judicial endorsement under the CPR, reinforced by Lomax and Churchill, has placed ENE firmly within mainstream litigation culture. Costs consequences and ADR-focused case management further increase its relevance, signalling a clear judicial expectation that proportionate resolution mechanisms be seriously explored.

In an era defined by delay, escalating cost, and reputational sensitivity, early, structured evaluation is no longer optional in serious disputes, but is part of responsible litigation management and prudent risk governance.

As such, ENE deserves consideration not as an afterthought, but as a deliberate strategic choice, deployed thoughtfully to inform judgment, protect resources, and support commercially rational outcomes.

Disclaimer
The author is Chief Registrar of ICDRO. Where any statement in this article conflicts with ICDRO’s published Rules or policies, the Rules and policies shall prevail.

Dr. Andre Alexander, SJD, LLB
Barrister, Solicitor (Dutch-Brussels Bar, High Court of Fiji)