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ARTICLE · 05 MAY 2026

Refusal To Mediate Was Not Unreasonable And Did Not Warrant Costs Sanction

Herbert Smith Freehills Kramer LLP
Herbert Smith Freehills Kramer LLP
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It was important to consider the full background of discussions between the parties in considering reasonableness.

United KingdomLitigation, Mediation & Arbitration
Alexander Oddy
Alexander Oddy
Camilla Macpherson
Camilla Macpherson
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It was important to consider the full background of discussions between the parties in considering reasonableness. 

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.

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