Refuse to mediate or Grijn and bear it?

The English court has given further guidance in Grijns v Grijns & Ors as to when a refusal to mediate may give rise to costs penalties.

Mediation is now a central feature of civil litigation. Courts expect parties to consider mediation, will exercise their powers to compel even commercial parties to mediate, and will penalise unreasonable refusals to mediate in costs.

But what counts as “unreasonable”? The recent decision in Grijns v Grijns & Ors [2025] EWHC 2853 (Ch) offers a detailed, practical answer. Here, the Court found the defendants’ resistance to mediation and settlement to be reasonable in the circumstances and declined to impose any costs penalty. The Court went so far as to say that, even though, on the facts, the defendants did not refuse to mediate, it would have been reasonable for them to do so given the claim’s weak merits.

Key Takeaways

Courts expect parties to engage with ADR, but context matters. Refusal to mediate is not necessarily unreasonable, especially where the claim is unfounded.
Failure to respond to mediation requests is relevant to a costs order but not decisive. The Court must consider the parties’ overall conduct and circumstances.
Settlement offers must be realistic. Refusing to engage with offers that far exceed what the offeror is likely to recover, and which are unrealistic given the merits, will not necessarily attract a costs penalty.
Consider and document ADR decisions: Parties should document their ADR efforts, be open to mediation where appropriate and ensure any refusal to engage in ADR efforts is well-founded.

Background

The case arose from a bitter family dispute over a Chelsea property worth £3.85 million (the “Property”). Andrew Grijns claimed, amongst other things, that he was entitled to a significant beneficial interest in the Property based on alleged assurances given by his parents upon which he claimed to have relied. His mother, Janice, denied having given any such assurances and counterclaimed for possession and compensation arising from Andrew’s unauthorised occupation of the Property. At trial, Andrew’s claims were dismissed entirely; Janice was declared the sole owner of the Property and Andrew was found to have been a trespasser in the Property since August 2023.

Janice and her co-defendants (Andrew’s three brothers) (together, the “Defendants”) sought their costs on the indemnity basis, citing the claim’s weakness and Andrew’s litigation conduct, including the fact that he had made (i) allegations as to Janice’s capacity that were never pursued to determination and (ii) a tactical application to commit Janice for contempt of court shortly before trial commenced. Andrew asked for “no order” as to costs, pointing to the Defendants’ supposed refusal to mediate and failure to engage with various settlement offers he had made.

The ADR Timeline

Early mediation suggestion: The Defendants’ solicitors proposed mediation as early as August 2023.
Claimant’s position: Andrew refused to mediate with his brothers present, despite their status as defendants.
Disclosure delays: Both sides faced significant disclosure delays, which in turn affected and delayed the exchange of witness statements which were only exchanged 12 days before the date listed for trial, narrowing the realistic window for mediation.
Repeated settlement offers: Andrew made four settlement offers, all seeking a substantial share of the Property. The Defendants made their own settlement offer in November 2024.
Court directions: Master McQuail ordered that parties “must consider settling the litigation by means of ADR” but declined to impose detailed ADR directions due to time and cost pressures.
No mediation occurred: The parties exchanged offers, but mediation never took place.

The costs judgment focused on whether the Defendants’ approach to mediation should affect the measure of costs awarded to the Defendants.

The Court’s Decision on Costs

The Court’s analysis drew on leading authorities including:

Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002: Unreasonable refusal to mediate can justify a departure from the usual costs order.
PGF II SA v OMFS Co Ltd [2014] 1 WLR 1386: Failure to respond to a serious request to mediate is generally unreasonable, but not always - context is key.
The Jackson ADR Handbook (4th Ed): There are certain circumstances in which a refusal to mediate may be justified, including where the claim to which it relates is unfounded.

The Court also noted that, in general, an award of indemnity costs is appropriate in cases where the claim is speculative, weak, opportunistic, or thin, where the evidence advanced in support of the claim is, in material respects, dishonest and/or where the purpose of the claim is to exact a settlement.

1. Did the Defendants Refuse to Mediate?

No. The Court found that the Defendants had never refused to mediate; they had in fact initiated mediation discussions early in the dispute but Andrew had sought to impose unreasonable conditions – including by seeking to exclude his brothers (the Defendants to the claim, with Janice) from the mediation - which had blocked progress.

“It was the Defendants who initiated the idea of mediation, in a case where, having regard to the merits they would have had good reason not to do so. It was Andrew who, by making… unreasonable requirements as to those entitled to participate in the mediation, precluded the parties from moving towards mediation in the early part of this litigation.”¹

2. Was the Defendants’ Failure to Respond to Andrew’s Mediation Request Unreasonable?

The Court accepted that, in general, failing to respond to a mediation request is unreasonable, but emphasised that this is not an absolute rule. The circumstances in this case were exceptional:

The Defendants were willing to mediate, but the conditions Andrew had sought to impose made it impractical to do so.
Disclosure delays (on both sides) left no sensible window for mediation before trial.
The Defendants’ stance in relation to mediation after disclosure was reasonable.

“This case is very far away from the situation of silent non-engagement… Far from failing to engage with mediation, the Defendants chose… to contemplate mediation and to continue to do so notwithstanding unreasonable objections raised by Andrew.”²

3. Was the Defendants’ Failure to Engage with Andrew’s Settlement Offers Unreasonable?

Andrew made four settlement offers, all seeking a substantial share of the Property (the lowest being 25% of net sale proceeds, worth c.£900,000). These offers fell far short of the actual outcome at trial, where it was found that the Defendants owed Andrew nothing and recovered substantial costs.

The Court found that the Defendants’ failure to engage with these offers was entirely reasonable. Master Bowles rejected the idea that a successful party must treat unrealistic offers as a negotiation platform. Imposing a costs penalty for refusing to haggle over inflated settlement proposals would waste time and drive unfair settlements in respect of unfounded claims.

According to Master Bowles, “[g]iven the merits and given the unrealistic nature of Andrew’s best offer… there was, in reality, no sensible basis for a negotiation.”³

4. Did the Defendants’ Conduct Warrant a Costs Penalty?

The Court concluded that the Defendants’ conduct was reasonable throughout, not least because:

They initiated mediation.
They responded to ADR directions.
Their refusal to accept unrealistic settlement offers was justified.
Delays and breakdowns in mediation were largely due to Andrew’s conduct.

Master Bowles confirmed that he was “entirely satisfied that no ground exists to modify, or adjust the basis, or incidence, of costs… Andrew should pay all the costs of this litigation on the indemnity basis.”⁴ Post-judgment costs were awarded against Andrew on the standard basis.

Conclusion

This case reinforces the fact that context is key when assessing whether failure to mediate is reasonable in the context of a costs assessment. The Court will look at a number of factors including:

The merits of the claim: If a claim is unfounded, parties may reasonably refuse to mediate.
The parties’ conduct: Imposing unreasonable conditions or failing to provide disclosure may justify a refusal to mediate.
The nature of settlement offers: Entirely unrealistic settlement offers are less likely to require engagement.
Overall engagement with ADR: Early and genuine willingness to mediate will be favourably viewed.

The Court’s analysis highlights that the key is reasonableness, both in engaging with ADR and in responding to settlement offers. Parties must consider ADR seriously and in good faith, but the Court will not penalise a successful party that takes a reasonable approach. As a practical matter, parties should ensure that any refusal to engage in ADR efforts are well-founded and documented.

¹ Para 102
²Para 106
³ Para 73
⁴ Para 107

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