When “Reasonable Refusal” to Mediate Doesn’t Mean Mediation Lost: Unpacking MJS Projects v RPS Consulting Services Ltd [2026] EWHC 884 (TCC)
Subtitle: A defendant successfully resisted a costs sanction for refusing to mediate, but the judgment paradoxically reinforces the power of ADR.
Introduction
The Technology and Construction Court (HHJ Kelly) has handed down a nuanced costs judgment in MJS Projects (March) Ltd v RPS Consulting Services Ltd that will be cited for years on the reasonableness (or not) of refusing alternative dispute resolution (ADR). On the surface, the decision is a setback for mediation advocates: the court refused to depart from the usual costs order despite the Claimant’s repeated offers to mediate, finding the Defendant’s refusal was reasonable.
However, a closer reading reveals a powerful, if counterintuitive, message in favour of ADR. This article unpacks the decision, explains why the judge found for the Defendant on conduct, and then provides the crucial “spin” – demonstrating why this case actually proves mediation’s indispensable role in modern litigation.
The Facts in Brief
MJS Projects sued RPS Consulting for alleged negligent design of a container park. The claim failed entirely at trial. At the costs hearing, MJS argued for “no order as to costs” on two grounds: (1) RPS’s unreasonable failure to mediate, and (2) a late change in RPS’s expert evidence.
The Defendant’s Refusal to Mediate – A Timeline
MJS proposed mediation on multiple occasions:
· Pre-action (July 2022): RPS refused, wanting to see MJS’s expert report first.
· Post-issue (June & Sept 2023): RPS again demurred, pointing to outstanding technical issues and the need for expert joint statements.
· Two weeks pre-trial: MJS proposed a last-minute mediation without experts. RPS refused, noting experts were essential.
RPS never said “never.” Instead, it consistently said “not yet” – first requiring expert evidence, then requiring expert participation. Meanwhile, RPS engaged in other ADR forms: without prejudice discussions, counsel-to-counsel talks, and Calderbank offers (including a £200,000 pre-trial offer that was generous in hindsight).
The Legal Framework: Halsey and CPR 44.2
The court applied the well-known Halsey v Milton Keynes factors for unreasonable failure to mediate:
· Nature of dispute
· Merits of the case
· Other settlement attempts
· Costs of ADR
· Delay
· Reasonable prospect of success
Crucially, CPR 44.2(5)(e) expressly includes “unreasonably failed to engage in ADR” as a conduct factor.
Why the Judge Found the Refusal Reasonable
HHJ Kelly gave several key reasons:
- Information deficit: RPS had consistently raised workmanship defects. MJS had not engaged with these for 19 months and refused to share its expert report even on a without-prejudice basis. It was reasonable for RPS to want to understand the case against it before spending £50,000 on mediation.
- Other ADR was pursued: RPS did not simply refuse to talk. It made offers, suggested without prejudice meetings, and engaged in counsel discussions. Mediation is not the only form of ADR.
- Prospects of success: The eventual total dismissal of the claim justified RPS’s assessment that its position was strong. Its final offer of £200,000 was described as “generous.”
- Mediation would have failed: Given the vast gulf between the parties and MJS’s failure to instruct its expert on workmanship issues, the judge accepted that mediation had “no reasonable prospect of success.”
- The “late change” of expert evidence: The Defendant’s expert produced late calculations – but this was simply “the usual cut and thrust of a professional negligence trial” and didn’t amount to unreasonable conduct.
The Crucial “Spin” – Why This Case is Still a Win for Mediation
Now for the promised spin. At first glance, this looks like a case where a party successfully avoided a costs sanction for refusing to mediate. But look at what actually happened:
“The very fact they spent a whole judgment discussing it suggests the claimant thought it was worthwhile arguing it – and this wouldn’t have been necessary if they had just mediated.”
Let’s break that down:
- Mediation as a strategic necessity, not an optional extra. The Claimant believed so strongly that the failure to mediate was unreasonable that they ran a full costs argument on it. They lost the argument, but the existence of the argument shows that refusing to mediate carries real risk. In another case, on slightly different facts, the costs sanction could have been severe (including deprivation of costs or indemnity costs).
- The costs of litigating the mediation issue itself. The parties spent time, money, and court resources arguing about whether a failure to mediate was unreasonable. That satellite litigation would have been completely avoided if the parties had simply mediated. The judgment runs to over 50 paragraphs – much of it analysing who said what to whom about mediation. That is wasted costs, pure and simple.
- The bar for reasonable refusal remains high. The judge emphasised that her decision turned on the very specific facts: MJS’s failure to engage with workmanship issues, its refusal to share its expert report, and the last-minute nature of its offers. This is not a green light for defendants to automatically refuse mediation. Each case turns on its own facts.
- The court expects parties to think creatively about ADR. RPS didn’t refuse ADR – it refused mediation at that time but proposed without prejudice discussions, expert meetings, and counsel talks. The message is clear: you must engage meaningfully with some form of ADR. A flat “no” without more would likely have resulted in a costs sanction.
Practical Lessons for Practitioners
Do Don’t
Clearly articulate why mediation is premature (e.g., need for expert evidence) Simply say “no” to mediation without reasons
Propose alternative ADR (without prejudice meetings, expert determination, early neutral evaluation) Ignore a mediation offer completely
Keep a paper trail of reasonable engagement Assume a strong case justifies refusal
Reassess your position as evidence emerges Stick rigidly to a refusal after key information becomes available
Conclusion
MJS Projects v RPS Consulting is not the anti-mediation case it first appears to be. Yes, the defendant succeeded in resisting a costs sanction. But the judgment stands as a 50-paragraph reminder that mediation is the default expectation of the court. The fact that a party felt it necessary to argue so hard about a refusal to mediate – and that the court engaged so thoroughly with that argument – demonstrates that mediation has moved from “encouraged” to “assumed.”
The very best way to avoid a costs argument about mediation is to mediate. This case proves that point by negative example. Next time, just mediate.
This article is for informational purposes only and does not constitute legal advice. Professional legal advice should be sought for specific cases.