Looking to avoid fixed recoverable costs? Use early neutral evaluation: a new service we are offering
Posted on 4th October 2023 at 16:25
Let’s get straight to the point. If you are interested in using Early Neutral Evaluation to help resolve your dispute, and have drawn a blank so far in looking for a suitable evaluator, we can deal with this for you. Give us a call or send us an email.
The Fixed Recoverable Costs regime has now been extended across the board for most types of civil dispute. Like it or not, this will make it less economical to pursue or defend many claims worth up to £100,000, whether they go into Fast Track or the new Intermediate Track.
You will of course have scope to argue that your dispute should be allocated to a higher complexity band within its track, with the promise in turn of a higher rate of fixed costs. But all this talk of tracks and bands means more time spent – unproductively, from a client’s perspective – on case management. And more front loading of costs.
We all know that Alternative Dispute Resolution (ADR) is now more strongly encouraged than ever. Why not make use of it as soon as the Defence has been served? Or even as soon as liability has been denied? Before the claim is even issued, and the exorbitant court fee paid?
And why not turn to an independent solicitor as your Early Neutral Evaluator?
Let us look at the traditional options for ADR, as outlined in the Pre-Action Protocol.
Mediation is now mainstream. Some disputes are ideally suited to a trained diplomat, so to speak, who can shuttle between the parties and help them to understand their opponents’ positions with a view to bridging a gulf and “facilitating a resolution”, as the Pre-Action Protocol describes it. But the cost of such a full day’s engagement may be uneconomic.
Arbitration, and Ombudsmen schemes, will be potentially suitable for specialist disputes, but only exceptionally. They may take time.
Part 36 proposals, and general use of Without Prejudice correspondence, are not strictly forms of ADR, but they are entirely familiar. However, they do need a mindset that is amenable to concessions, not always feasible when parties and their solicitors have found themselves entrenched.
So what is Early Neutral Evaluation all about? In the words of the Protocol, “a third party giving an informed opinion on the dispute”. The informed opinion would follow a joint instruction to do so from the parties’ representatives, or indeed the parties themselves.
Is there any good reason why this third party evaluator should not be an independent experienced commercial solicitor?
Let’s look at the alternatives. Some would think straight away of mediators. They are of course wholly impartial. But the skills involved in brokering a deal do not involve fully evaluating the underlying dispute.
Barristers would clearly be another option. They are skilled in producing legal opinions and assessing the chance of one party’s claim or a defence succeeding. But they would be the first to admit that they do not have the same “front line” experience of taking lay clients’ instructions from the outset, and gaining an immediate feel for the dispute’s commercial factors.
Then there is the question of expense. Their specialisms come at a price.
In complete contrast, the “helpline advice” providers may seek to offer this service at low cost. But where is the professional experience that would make their evaluations worthwhile and reliable?
We believe we can strike the balance. Evaluation from a background of over 35 years’ professional experience. The necessary practical common sense from first hand involvement in commercial disputes at all stages. A feel for both sides of the argument – claimant and defendant, supplier and user, service provider and recipient, employer and employee. The benefit of a small firm approach that has addressed disputes of all values, not just high values. An independent touch. A sense of your urgency. And above all, low overheads enabling reasonable fixed fees for your early neutral evaluation.
Interested? Get in touch now for more information. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: cost effective litigation, early neutral evaluation, fixed recoverable costs, independent solicitor, informed opinion
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