Two cases with important ramifications for parties’ abilities to settle claims under the Inheritance (Provision for Family & Dependants) Act 1975 (the Inheritance Act) have been handed down by the Court of Appeal in just one month.

At the end of July the Court of Appeal overturned the decision of the first instance Judge in Cowan v Foreman who had held that the parties could not agree to extend the strict six month deadline for bringing a claim under the Inheritance Act in order to try to resolve the claim. This was the practice adopted by many where the parties needed further time to air their grievances and attempt to settle the dispute. My colleague, Hayley Bundy, discussed the importance of this case in her article which can be found here.

Hot on the heels of Cowan v Foreman comes another case, Lomax v Lomax, which could have far broader application than just under the Inheritance Act.

Rule 3.1(2)(m) of the Civil Procedure Rules (the CPR) allows the court to order an Early Neutral Evaluation hearing, where a judge will look at the evidence and provide the parties with an objective neutral evaluation of the case. The idea is that this will then encourage the parties to form a realistic view of the realities of their case and attempt to settle with the other side.

In Lomax v Lomax a widow had bought a claim under the Inheritance Act and applied for an order that there be an Early Neural Evaluation hearing. The Defendant opposed the application and the judge at first instance found that without the consent of both parties, she did not have the power to order such a hearing. The widow appealed. Agreeing with her, the Court of Appeal found that the court could order an Early Neutral Evaluation hearing despite one party withholding their consent.

The Court of Appeal referred to the provisions of the overriding objective to the CPR and in particular Rule 1.4(2)(e) which required active case management including:

“to encourage the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.”

Taking solace from the experiences of the Family Court which has for many years ordered Financial Dispute Resolution hearings (effectively the same as Early Neutral Evaluation) and which have been found to be overwhelmingly successful in encouraging the parties to take a realistic view of their case, adjust their expectations, and more often than not, settle.

Arguably Lomax has far wider application than just to Inheritance Act claims, but I suspect in the latter case in particular we will see their use increasing. That is not to say that they will be appropriate for all cases where, for example, evidence is finely balanced and much will depend on the oral evidence which can only be heard at a final hearing. Moreover, I suspect that mediation may still prove a cheaper option than applying for Early Neutral Evaluation hearing. But, their utility will be obvious where one or other of the parties is intransigent and refuses to engage in meaningful negotiations.