Costs disputes often lend themselves to an Early Neutral Evaluation (ENE) of issues which have prevented the parties from resolving their differences.
These can arise where there are “Big Ticket” items such as hourly expense rates for solicitors, the indemnity principle or success fees which have hindered settlement in matters where the smaller items have been, or are capable of being, agreed.
The advantage of ENE over a full mediation is that it can be carried out earlier in the ADR process and enables the parties to have the benefit of the opinion of a costs expert on points which so far have proved to be intractable.
Based upon the materials deployed, the expert will evaluate the respective parties’ cases in a direct and succinct way and provide them with an unbiased opinion about the likely outcome should the matter subsequently be heard by a court.
ENE is particularly useful where the parties may have strongly differing views on the prospects of success or an inadequate understanding of the risks of arguing the case before a costs judge, for example, where Part 36 offers have been made.
The expression of a provisional view by an expert does not bind the parties but his or her opinion will provide them with a very firm steer about how the dispute will be decided in court if it is not settled through ADR.
By using CADR’s experienced panel of experts, ENE can prove to be a useful adjunct to mediation where the stumbling block to settlement may not be so much the amount of costs in dispute, but a particular issue upon which a significant sum may turn.
The resolution of that by ENE will often result in the remaining matters which have divided the parties, falling into place, thereby enabling the costs to be settled without the need for a mediation or court hearing. ENE can also be used where one party to a dispute wishes to have the benefit of an opinion of an expert on a costs issue without reference to the opposing party.