Court Rules on Costs in Defamation Case; Defendant’s Refusal to Mediate Proves Costly
In a recent ruling from the High Court (King’s Bench Division), Mr Justice Griffiths delivered a significant judgment concerning legal costs in the case of Rodoy v Optical Express Limited [2026] EWHC 1486 (KB). While the Claimant, Sasha Rodoy, lost her defamation claim, the ruling highlights a crucial caution for litigants: a refusal to engage in Alternative Dispute Resolution (ADR)—even for the winning party—can weaken their position when asking the court for punitive costs.
The Background: A Defamation Claim Fails
The Claimant brought a defamation action against Optical Express Limited. However, at trial, the Court found on the civil standard of proof that the defamatory meanings complained of were substantially true. Consequently, the Claimant was ordered to pay the Defendant’s legal costs.
The Dispute: Standard vs. Indemnity Costs
The Defendant sought to push for costs to be awarded on the indemnity basis. In English civil procedure, indemnity costs are a more punitive measure, forcing the paying party to cover costs that may not have been strictly reasonable or necessary, often reserved for cases where the losing party’s conduct has taken the case “outside the norm” or was dishonest.
Mr Justice Griffiths declined this request, ruling instead that costs would be paid on the standard basis. He found that the Claimant’s case, while unsuccessful, was not dishonest or utterly without merit.
The Mediation Factor: A Judge’s Recommendation Ignored
The most compelling part of the judgment concerned mediation. The Court noted that at the earlier trial of meaning, HHJ Lewis had strongly recommended that the parties pursue ADR. In his ruling, HHJ Lewis explicitly encouraged them to “pause and reflect,” stating:
“I strongly recommend that the parties consider some form of alternative dispute resolution process such as mediation… experience shows that it is often in such entrenched cases that alternative dispute resolution can make a real difference.”
Why was Mediation Requested?
Following this judicial recommendation, the Claimant’s solicitors formally proposed mediation by letter dated 5 April 2024. The request was made in an effort to align with the court’s overriding objective—to narrow the issues between the parties or resolve the dispute entirely, thereby saving significant court time and legal costs, while addressing the judge’s call for “honest conversations.”
The Defendant’s Silence and the Costs Consequence
Remarkably, despite the strong recommendation from a High Court judge and the Claimant’s subsequent formal follow-up, the Defendant did not even respond to the ADR suggestion.
Mr Justice Griffiths, while acknowledging that the Defendant was not necessarily obliged to settle, deemed their total refusal to even entertain the possibility of ADR as highly relevant to the costs decision. He quoted Sir Geoffrey Vos C in OMV Petrom SA v Glencore International AG, emphasizing that the modern litigation culture demands collaboration:
“Parties are no longer entitled to litigate forever simply because they can afford to do so… The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.”
The Takeaway for Litigants
The judge concluded that while the Defendant had won the case, their application for indemnity costs was “weakened by their refusal even to entertain the possibility of attempting Alternative Dispute Resolution.”
Ultimately, Mr Justice Griffiths made it clear that rejecting mediation does not necessarily mean you will have to settle, but it does mean you risk losing a tactical advantage in costs arguments. In an era where the courts aggressively push for ADR to protect other court users’ rights, ignoring a judicial recommendation to mediate can carry a tangible financial penalty, even for the successful party.