ClearPoint Joint-Party Early Neutral Evaluation

Overview

ClearPoint Joint-Party Early Neutral Evaluation is a structured, confidential process through which two or more parties obtain an independent, non-binding evaluation of a defined dispute, issue or legal question.

The evaluator does not decide the dispute, impose an outcome or act as a judge or arbitrator. Their role is to provide an independent assessment of the issues referred by the parties, based on the agreed materials and submissions.

Joint-party ENE may be suitable where parties want an informed neutral view before deciding whether to settle, mediate, narrow the dispute, continue litigation or use another form of resolution.

The evaluation is non-binding unless the parties expressly agree otherwise in a separate written agreement.

How the Process Works

1. Submit an ENE Request

The parties submit a joint ENE request to ClearPoint, or one party submits a request and the other party agrees to participate.

The request should identify:

• the parties;

• the nature of the dispute;

• the approximate value of the claim;

• the issue or issues to be evaluated;

• the current stage of the dispute;

• whether proceedings have been issued;

• any urgent dates or deadlines;

• whether the parties want a documents-only evaluation or a short evaluation meeting; and

• the outcome the parties want from the process.

2. Suitability and Scope Review

ClearPoint reviews the request to consider whether the matter is suitable for joint-party ENE.

ClearPoint may consider:

• whether the issue is sufficiently defined;

• whether both parties agree to participate;

• whether the documents are adequate for evaluation;

• whether the request is too broad;

• whether the matter requires specialist expertise;

• whether the evaluation should be documents-only or include a short meeting;

• whether ENE is premature; and

• whether another ClearPoint process may be more appropriate.

Where appropriate, ClearPoint may recommend a Resolution Pathway review, mediation, expert determination, arbitration or another process.

3. Agreement to Participate and Payment

Once the parties agree to proceed, ClearPoint confirms:

• the issue or issues to be evaluated;

• the applicable fee;

• the evaluator appointment process;

• the document limits;

• the timetable;

• whether written submissions are required;

• whether an evaluation meeting will take place; and

• the expected form of the ENE outcome.

The parties may be asked to sign an ENE Agreement and pay the required fees before the evaluator is appointed.

Participation in ENE does not require any party to settle.

4. Evaluator Appointment

ClearPoint appoints an independent evaluator from its panel.

The evaluator is selected having regard to:

• the nature of the dispute;

• the legal or commercial context;

• the amount in issue;

• the evaluator’s expertise;

• the complexity of the question;

• availability;

• independence;

• impartiality; and

• any specialist knowledge required.

The evaluator may be a barrister, solicitor, senior disputes practitioner, sector specialist or legally trained neutral with relevant expertise.

The evaluator must be independent and impartial.

5. Documents and Submissions

Before the evaluation, the parties will usually provide:

• a short case summary from each party;

• the defined question or issues for evaluation;

• key documents only;

• any relevant correspondence;

• any pleadings or pre-action documents, where proceedings have started;

• any schedule of loss, invoice schedule or damages calculation;

• any expert reports already obtained, where relevant; and

• any agreed list of issues.

The purpose is to give the evaluator enough material to assess the defined issue fairly and efficiently.

The process is not a disclosure exercise and should not involve a full litigation bundle unless ClearPoint or the evaluator requests it.

6. Shared Materials

Joint-party ENE will usually proceed on shared materials.

Unless ClearPoint or the evaluator directs otherwise:

• each party’s case summary will be shared with the other party;

• key documents relied upon by one party should be available to the other party;

• the evaluator should not rely on private material that has not been shared; and

• the evaluation should be based on a fair opportunity for each party to present its position.

This keeps the process transparent, balanced and suitable for a joint evaluation.

7. Clarification

The evaluator may request limited clarification before issuing the evaluation.

Clarification may relate to:

• missing documents;

• unclear factual background;

• the scope of the issue;

• the procedural stage of the dispute;

• the amount claimed or disputed;

• the specific question being evaluated; or

• any inconsistency in the parties’ submissions.

Clarification may be requested in writing or during a short evaluation meeting.

Clarification is limited. It is not cross-examination, a trial, a mediation or a full hearing unless ClearPoint has agreed a specific expanded process.

8. Optional Evaluation Meeting

Where appropriate, ClearPoint may arrange a short evaluation meeting.

The meeting may take place online, in person or by hybrid format.

The purpose of the meeting is to allow the evaluator to:

• clarify the issues;

• ask questions;

• understand each party’s position;

• test the scope of the dispute;

• identify matters requiring further information; and

• ensure the evaluation is focused and useful.

The meeting is not a trial, arbitration, adjudication or mediation.

The evaluator may control the format, timing and order of discussion.

9. The ENE Evaluation

The evaluator reviews the material and issues a written evaluation.

Depending on the agreed scope, the evaluation may address:

• the apparent strengths and weaknesses of each party’s position;

• legal or evidential risks;

• issues requiring further evidence;

• likely points of dispute;

• possible litigation risk;

• proportionality considerations;

• whether settlement discussions may be appropriate;

• whether mediation or another ADR process may assist;

• whether a narrower issue should be determined separately; and

• practical next steps for the parties to consider.

The evaluation is non-binding.

It does not determine legal rights and does not require any party to settle, mediate, litigate or take any particular step.

10. Outcome and Use of the Evaluation

The evaluation may assist the parties in deciding whether to:

• settle the dispute;

• make or revise settlement offers;

• proceed to mediation;

• narrow the issues in dispute;

• exchange further information;

• obtain further evidence;

• refer a technical issue to expert determination;

• proceed to arbitration, adjudication or litigation;

• continue negotiations; or

• reconsider the proportionality of the dispute.

The evaluation should not be presented as a binding decision, arbitral award, expert determination or judgment.

Unless the parties agree otherwise, the evaluation is confidential and without prejudice.

11. Post-Evaluation Clarification

Where appropriate, the parties may request limited clarification of the evaluation.

Clarification may correct or explain the evaluation, but it does not include:

• a second evaluation;

• fresh legal advice;

• review of substantial new documents;

• settlement negotiation;

• representation;

• litigation strategy advice; or

• drafting correspondence for either party.

Substantial follow-up work may require an additional fee.

Types of Disputes

ClearPoint Joint-Party ENE may be suitable for a range of civil and commercial disputes, including:

Commercial and Contract Disputes

• breach of contract;

• termination disputes;

• supply of goods or services;

• disputed contract terms;

• performance issues;

• payment disputes;

• contractual interpretation.

Business and Company Disputes

• shareholder disputes;

• partnership disputes;

• director or founder disputes;

• business separation issues;

• investor or stakeholder disagreements;

• internal commercial conflicts.

Debt, Invoice and Payment Disputes

• unpaid invoices;

• disputed fees;

• account balances;

• debt and counterclaim disputes;

• payment disputes;

• commercial recovery issues.

Professional Services Disputes

• consultant disputes;

• professional fees;

• scope of retainer disputes;

• service quality complaints;

• client/provider disagreements;

• professional responsibility issues, where suitable.

Property and Real Estate Disputes

• commercial landlord and tenant disputes;

• lease disputes;

• rent arrears;

• dilapidations;

• property management disputes;

• development or occupation issues.

Construction and Project Disputes

• small and medium construction disputes;

• defects;

• delay;

• payment disputes;

• contractor/client disputes;

• project delivery disagreements.

Technology and Digital Services Disputes

• software development disputes;

• IT project disputes;

• platform or digital service disputes;

• licensing issues;

• service level disputes;

• failed implementation projects.

Employment, Workplace and Consultancy Disputes

Where suitable, joint-party ENE may assist with:

• consultancy disputes;

• contractor or freelancer disputes;

• senior exit disputes;

• restrictive covenant issues;

• settlement discussions;

• workplace-related commercial disputes.

ClearPoint may decline matters requiring urgent legal relief, specialist statutory procedures, safeguarding intervention, regulatory action, criminal investigation or another process outside the scope of ENE.

Who Conducts the ENE?

The evaluation is conducted by an independent evaluator appointed by ClearPoint.

ClearPoint evaluators may include:

• barristers;

• solicitor evaluators;

• senior disputes practitioners;

• subject-matter specialists;

• sector experts; or

• legally trained neutrals with relevant experience.

The evaluator’s role is to provide an independent, non-binding assessment within the agreed scope.

The evaluator does not:

• decide the dispute;

• act as a judge or arbitrator;

• represent either party;

• impose a settlement;

• make binding findings;

• compel disclosure;

• compel settlement;

• certify court compliance; or

• replace legal advice from solicitors or counsel.

Parties may participate with solicitors, counsel, experts, insurers, funders or other advisers where appropriate.

Core Principle

ClearPoint Joint-Party ENE is designed to provide focused, independent clarity at a defined stage of the dispute.

The aim is not to turn evaluation into litigation.

The aim is to give the parties a neutral assessment that helps them understand risk, narrow disagreement and decide the most proportionate next step.

Because the evaluation is joint-party, it is based on shared participation and a fair opportunity for each party to present its position.

It provides independent clarity, not a binding determination.