The use of this service is indicated by Options E12 of our How can we help you? web page. |
Early Neutral Evaluation
In keeping with Civil Procedure Rules 3.1 (2)(m), Early Neutral Evaluation (ENE), sometimes referred to as an Expert Evaluation, is offered jointly to both parties involved in a boundary dispute with a view to helping the parties settle the dispute.
ENE is voluntary, non-binding, and aims to clarify the technical issues concerning the boundary. ENE will assist both parties in assessing the relative merits of their own and their opponent's positions so as to eliminate the tendency towards taking an entrenched position on the issues. ENE should provide a better understanding of how the case might fall at trial.
Given that the courts encourage the non-litigious settlement of boundary disputes it follows that ENE, when used at an early stage in a boundary dispute, will assist the parties in assessing the best method for early, non-litigious resolution of the dispute. This will avoid further unnecessary stages in litigation and will offer significant savings over the costs of litigation.
Service offered
Early Neutral Evaluation is intended to provide an evaluation by an experienced expert of the strength of the evidence available. It will progress through a number of stages:
STAGE 1
- The parties must first agree with each other on the desirability of ENE,
- The parties must collate such documents on which they rely, using JMB32 as a guide to suitable such documents,
- Joint instructions will be issued to the Evaluator (usually by one party's solicitor issuing them on behalf of both parties),
- Each party will provide the Evaluator with the documentary evidence on which they intend to rely.
STAGE 2
- On-site the Evaluator will prefer, if the parties agree, to consult with each party in turn prior to undertaking a survey, and the expert will maintain impartiality and openness,
- The Evaluator will make a detailed, measured land survey against which to assess the validity of the documented evidence.
STAGE 3
- The Evaluator will compare the documentary evidence against his survey,
- The Evaluator will write and serve the Evaluation.
STAGE 4
- The Evaluator will receive, at each party's discretion, questions written for the purpose of clarifying the Evaluation,
- The Evaluator will respond to both parties with written answers to such written questions as are submitted by either party.
The parties will be jointly liable in equal shares for the fees arising out of Stages 1 to 3 of the ENE. Stage 4 is optional at the discretion of each party and each party will pay for the fee arising from answering that party's written questions.
Establishing the position of the paper title boundary
The Evaluator will:
- Identify the deed that carries the paper title, or
- the earliest available deed that describes the boundary.
- Comment upon the quality of the paper title boundary description.
- Relate the boundary description to a ground position (if appropriate), or
- relate the boundary position to physical features now present on the ground.
- Comment on whether or not the ground features are consistent with the paper title boundary.
Extrinsic evidence
Where the description of the paper title boundary is deficient, the Evaluator will consider extrinsic evidence such as:
- old aerial photographs;
- old Ordnance Survey maps;
- planning drawings;
- the client's family photo album,
- published material of evidential value (eg. old newspaper articles, picture postcards).
The Evaluation will include sections on:
- Background information and Chronology;
- The parties' claims;
- Observations made on site;
- Strengths and weaknesses of the evidence;
- Conclusions;
supported by a pertinent set of Appendices.
Expected outcome
Early Neutral Evaluation may lead to one of several outcomes:
- The parties may use the Evaluation as the basis for a settlement of the dispute, for example, via a boundary agreement or an application to register the exact line of the boundary, each of which will provide a permanent record at Land Registry;
- The parties may use the evaluation as the starting point for negotiations to amicably resolve the dispute;
- The parties may decide upon an alternative dispute resolution method, such as expert determination or mediation, in order to resolve the dispute without recourse to litigation;
- The parties may decide that the nature of the dispute requires litigation and will be advised by the Evaluation as to which issues should be pursued and which issues are not relevant to the litigation process.
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