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Early Neutral Evaluation

Sometimes, you have a distinct issue or concern about something being wrong.

You require an independent review of the situation to identify issues or confirm that you are doing everything reasonably necessary to protect your commercial position.

Early Neutral Evaluation (ENE) is a form of alternative dispute resolution that has become increasingly popular in the construction and engineering sectors. Here's a brief overview:

  1. What is ENE? In an ENE, an independent and impartial evaluator is appointed by the parties to give an assessment or "evaluation" of the merits of their respective cases. The evaluator can provide an authoritative (albeit provisional) view of the issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues. This evaluation may then be used as the basis for settlement negotiations. ENE can be used to explore any combination of legal, evidential, factual, or technical questions.

  2. When to use ENE?: ENE may be useful in cases where the parties have reached an impasse on a particular element of or issue in the case. It can also be helpful when there is a great disparity between the parties' positions, one party has an unrealistic view of the case, or confidentiality is essential.

  3. Advantages of ENE: ENE can highlight and clarify the issues in dispute, be faster than more traditional forms of dispute resolution, demonstrate the limits of a party's case, any gaps in the evidence and the risks involved in pursuing litigation, and assist in settlement negotiations by encouraging parties to move to a more realistic negotiating position.

  4. Disadvantages of ENE: Unlike other forms of alternative dispute resolution (such as arbitration or adjudication), ENE doesn't result in a final decision. The evaluator does not decide legal issues or advocate a way of resolving matters.

  5. Is ENE binding and confidential?: The outcome of the ENE process is usually non-binding on the parties. It is also carried out on a without prejudice basis, which means that anything disclosed during the ENE process can't later be used as evidence in court without agreement.

In summary, ENE is a flexible, confidential, and non-binding form of dispute resolution that can be used to clarify issues relating to a dispute, be they factual, technical, or legal. It's a valuable tool for encouraging settlement discussions and providing a practical view of the merits of the parties' respective positions.

Our experience enables us to quickly identify any issue(s) and determine what you can do to manage the problem.

This type of review could include:

(a) Considering a principle of whether an item is a variation under the form of the Contract. It may be the case that the item, if settled, will set a precedent for other variations, so it is essential to identify the strength of the position as early as possible;

(b) Your commercial team may advise you that the project is particularly profitable within the cost valuations, but the actual progress on site does not suggest the project is going well or

(c) The site team have changed and needs some assistance understanding the commercial procedure required under the Contract. In this scenario, we could take the Contract and devise a step plan to ensure a smooth transition.

External Site Audit

Unfortunately, all too often it is not until the end of the project that poor performance manifests itself in a loss on a project. Creating positive cash flow by a combination of overvaluation and undervaluing the supply chain will eventually catch up. We are happy to support your commercial team and provide assistance (or can carry out a site audit independently), considering the costs, claims, progress of the works.  

Programme analysis

We can review your programme and establish the cause(s) of the delay. This can be carried out during the project or as a retrospective analysis after the works are completed. You will need to consider whether there are contractual clauses that prevent this type of assessment. 

See Programme Analysis

Quantum Analysis

For example, the Public Works Contract requires contemporaneous notification through the currency of the contract; you will therefore need to be on top of your applications. We can review your contract, discuss the progress of the works with your commercial and production teams and identify and establish any financial entitlements under the contract. 

Assist with referring the matters to a third party

Under the contract (if there is one), we can assist you in presenting your position to a third party, be that a standing conciliatorAdjudication conciliator, arbitrator, or court