In a claim for reasonable financial provision under the Inheritance Act 1975, can the judge order the parties to engage in forms of alternative dispute resolution?

ADR is commonly used to resolve claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) where an individual, such as a widow, brings an application for reasonable financial provision from the deceased's estate.

In the recent decision in Lomax v Lomax [2019] EWHC 1267, heard in the Family Division, the issue of ADR was raised and the case considered whether the court could order an Early Neutral Evaluation hearing (ENE) or Financial Dispute Resolution hearing (FDR) where one of the parties did not consent to this, ENE and FDR both being forms of ADR which can help parties settle their claims.

Here, Pauline Lomax, a widow, commenced proceedings for provision out of the estate of her late husband under the 1975 Act. The defendant, Stuart Lomax, is her step-son and resisted the application. The deceased's estate was worth around £5.5 million and is held on trust with the income to be paid to Pauline during her lifetime and on her death, the capital and income would be held on discretionary trust for a class of beneficiaries including Stuart. There were also shares in a family company held in three settlements and Pauline sought a variation of those trusts as post nuptial settlements.

Stuart's position was that Pauline's claim had no possible merit, presumably because adequate provision had already been made for her, and that it appeared to be an abuse of legal process.

Pauline sought an ENE or FDR and Stuart did not agree. The question for Parker J was whether the court can order there to be such a hearing in 1975 Act claims in the absence of consent of one of the parties.

Parker J decided, "on the finest of fine balances" that she could not order an ENE or FDR and concluded, in summary, that the current rules were insufficiently precise to conclude that the judge is able to give directions leading to a non-consensual ENE or that the term ENE in the rules governs FDR as well.

However, this conclusion did not disturb the view of Parker J that, "this is a case which cries, indeed screams out, for a robust judge-led process to focus on the legal and factual issues … and perhaps even craft a proposed solution for the parties to consider".

Parker J went on to urge the rules committee to clarify whether ENE is to be considered compulsory and to give consideration to providing a clear route to compulsory FDR in appropriate civil proceedings, a prime example being a 1975 Act claim, commenting that, "the arguments for the court having power to do so are strong and the experience in the Family Division of court-controlled intervention presents a very favourable picture".

It will be interesting to follow the outcome of this recommendation which could have far reaching implications for the use of ADR generally and particularly in spousal 1975 Act claims in the future.