The High Court has provided useful guidance on the costs consequences of refusing to mediate in Grijns v Grijns [2025] EWHC 2853 (Ch). The decision confirms that while courts strongly encourage alternative dispute resolution (ADR), parties will not necessarily face a costs penalty for declining mediation where the underlying claim is weak or the proposed settlement dynamics are unrealistic. The judgment offers practical insight for litigants on how courts assess conduct around mediation when determining costs.

 

Background

 

The dispute concerned a valuable property in Chelsea owned by the first defendant, Janice Grijns. The claimant, Andrew Grijns, her son, had lived at the property for many years and alleged that promises had been made giving him a beneficial interest in it. In June 2023, Mr Grijns issued proceedings against his mother and brothers. He brought a proprietary estoppel claim, arguing that assurances had been made that he would acquire a substantial interest in the property, or at least a right to continue living there. He also advanced a trespass claim following an incident in which his mother and brothers entered the property. At trial, the court dismissed the claimant’s substantive claims in Grijns v Grijns & Ors [2025] EWHC 1413 (Ch). The court declared that Ms Grijns was the sole legal and beneficial owner of the property and held that the claimant had been a trespasser from August 2023. The claimant was also ordered to pay mesne profits. The claimant achieved only limited success on a narrow accounting issue relating to a short period of rental income from a lower ground floor flat.

 

The court’s decision

 

Given the outcome, the court held that the defendants had clearly “won the event”, meaning they were entitled to recover their costs. The claimant argued that there should be no order as to costs and that deductions should be applied to reflect his limited success and the defendants’ approach to settlement and mediation. The court rejected those arguments.

 

Indemnity costs

 

The judge concluded that the claimant’s case fell outside the norm and justified an award of costs on the indemnity basis. The alleged assurances relied upon by the claimant were described as “constructed” and inconsistent with the documentary evidence.
The court also considered that the litigation appeared to have been used as a means of applying pressure for a settlement.

 

Settlement offers

 

The claimant made four settlement offers between May 2023 and October 2024. Even the most favourable proposal would have required the defendants to pay him around £900,000. The court held that refusing to negotiate on that basis was entirely reasonable given the weakness of the claim.

 

Mediation and ADR

 

The claimant also argued that the defendants had failed to engage properly with mediation. The judge reviewed key authorities on ADR and costs, including Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 and PGF II SA v OMFS Co Ltd [2013] EWCA Civ 1288, which establish that ignoring a serious invitation to mediate may be considered unreasonable. However, the court found that the defendants had not refused mediation. In fact, mediation had initially been suggested by the defendants themselves. Progress towards mediation was ultimately frustrated by the claimant’s insistence on excluding certain defendants from the process and his refusal to provide targeted disclosure requested by the defendants to facilitate settlement discussions. By the time the case progressed under a tight trial timetable, mediation was no longer practical. The judge therefore concluded that it would be “inaccurate and over simplistic” to characterise the defendants’ conduct as a failure to engage in ADR.

 

Why this matters

 

The decision highlights the courts’ pragmatic approach to ADR when determining costs. Following the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and subsequent amendments to the Civil Procedure Rules, courts now have broader powers to encourage or direct ADR. However, Grijns demonstrates that declining mediation will not automatically lead to a costs penalty. In particular, the court recognised that mediation may be inappropriate where:

 

• the claim appears unfounded or opportunistic
• settlement proposals are unrealistic
• the opposing party’s conduct prevents meaningful engagement in ADR

 

The judgment reinforces that parties should approach ADR carefully and strategically throughout litigation. While courts expect parties to engage constructively with mediation, a refusal to mediate may still be reasonable where there are clear and documented reasons for doing so.

 

How we can help

 

If you are involved in a commercial or property dispute and require advice on litigation strategy, settlement negotiations or ADR, our experienced team can provide clear guidance to help protect your position and manage potential costs exposure throughout the litigation process.