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'The amended rule is not, as might have been expected limited to Chancery proceedings. It is of general application. While it is likely to be used more readily in the immediate future in Chancery proceedings given the impetus to its use by the Brigg’s Review and Norris J’s judgment, its use in appropriate cases in the Queen’s bench Division and the County Court is likely to become increasingly common.' (Civil Procedure News Issue 8/2015)But hold on a minute: where does the'early' come into ENE? The parties in Seals had already been engaged in months of litigation prior to the white flags being hoisted before Norris J.
'It is a common difficulty in cases of this sort, trying to work out when the best time might be to attempt ADR or mediation. Mediation is often suggested by the claiming party at an early stage. But the responding party, who is likely to be the party writing the cheque, will often want proper information relating to the claim in order to be able to assess the commercial risk that the claim represents before embarking on a sensible mediation. A premature mediation simply wastes time and can sometimes lead to a hardening of the positions on both sides which make any subsequent attempt of settlement doomed to fail. Conversely, a delay in any mediation until after full particulars and documents have been exchanged can mean that the costs which have been incurred to get to that point themselves become the principal obstacle to a successful mediation. The trick is many cases is to identify the happy medium: the point when the detail of the claim and response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that settlement is no longer possible.'The parties in 'family property' Chancery litigation will usually have spent thousands to get to a Case Management Conference at which court led ENE is proposed. Pleadings, costs budgeting, etc will all have to be contended with.To keep it 'early' the parties may want to consider engaging in private ENE before a specialist solicitor or barrister in the area of their dispute. Article continues below...