Refusal to mediate was not unreasonable and did not warrant costs sanction

The Technology and Construction Court (TCC) has held that neither a successful defendant's refusal to mediate nor a last-minute change in its expert's evidence warranted a departure from the usual order that it should be paid its costs of the litigation: MJS Projects (March) Ltd v RPS Consulting Services Ltd [2026] EWHC 884 (TCC).

The defendant's refusal to mediate was not unreasonable in circumstances where the claimant had failed to engage with a number of issues that the defendant had raised and where the defendant needed to understand the claimant's expert evidence in order to proceed with mediation. The defendant had also proposed other forms of ADR and made settlement offers throughout.

The court's endorsement of ADR is long standing and enshrined in the CPR. It is also well-established that a court can penalise a party in costs for unreasonably failing to engage in ADR. However, the court recognises that ADR is not always appropriate. There is also no presumption in favour of mediation as the preferred method of ADR. As demonstrated in this case, a refusal to mediate therefore does not automatically result in a costs penalty. 

For more information, see this blog post on our ADR Notes blog.