When Winning Means Losing: The Hidden Cost of Refusing Mediation
Rodoy v Optical Express Ltd [2026] EWHC 1486 (KB)
A recent High Court costs decision demonstrates an increasingly important reality of modern litigation: even a successful party can suffer adverse costs consequences if it refuses to engage with mediation.
In Rodoy v Optical Express Ltd [2026] EWHC 1486 (KB), the Defendant, Optical Express, successfully defended a defamation claim brought by Sasha Rodoy. The trial judge found that the defamatory meanings complained of were substantially true and the claim was dismissed.
Ordinarily, a successful party would expect to recover its legal costs. Optical Express did recover its costs. However, the issue before the court was whether those costs should be assessed on the more favourable indemnity basis rather than the usual standard basis.
The Defendant argued that the circumstances justified indemnity costs.
The court disagreed.
The Dispute
The litigation arose from a long-running and highly contentious dispute involving Ms Rodoy, a prominent campaigner in relation to refractive eye surgery, and Optical Express, one of the UK’s largest providers of laser eye surgery.
The issues concerned publications and allegations relating to Ms Rodoy’s activities, including allegations that gave rise to meanings of “fraudster” and “troll”. The dispute was heavily documented and positions had become firmly entrenched.
Although the Defendant ultimately succeeded at trial, the court did not consider the Claimant’s case to be dishonest, hopeless or so exceptional as to justify indemnity costs.
A Clear Judicial Recommendation to Mediate
What makes the decision particularly interesting is the court’s treatment of mediation.
During an earlier hearing, HHJ Lewis expressly encouraged the parties to consider Alternative Dispute Resolution, stating:
“I strongly recommend that the parties consider some form of alternative dispute resolution process such as mediation.”
The judge acknowledged that the parties would likely regard their positions as entrenched but observed that mediation is often most valuable in precisely those circumstances.
Following that recommendation, the Claimant’s solicitors proposed mediation.
According to the costs judgment, the Defendant did not even respond.
Why Refusing ADR Mattered
Mr Justice Griffiths was careful to emphasise that the Defendant was not obliged to settle the claim.
However, the court drew an important distinction between refusing settlement and refusing even to engage with the possibility of settlement.
The judge referred to the well-known comments of Sir Geoffrey Vos in OMV Petrom SA v Glencore International AG, where the Court of Appeal emphasised that parties are expected to make reasonable efforts to settle disputes and engage constructively in the settlement process.
The court concluded that Optical Express’s refusal to entertain ADR weakened its argument that it should receive indemnity costs.
As the judge put it:
“I do consider that their case for indemnity costs was weakened by their refusal even to entertain the possibility of attempting Alternative Dispute Resolution.”
When Winning Means Losing
Of course, Optical Express won the case and obtained a costs order.
But it did not obtain everything it sought.
Its refusal to engage with mediation became a factor which counted against it when the court came to exercise its discretion on costs.
That is the modern reality of litigation.
The question is no longer simply:
“Who won?”
The court is increasingly interested in:
- How the parties conducted themselves;
- Whether they engaged constructively with settlement opportunities;
- Whether mediation was considered;
- Whether ADR invitations were properly answered; and
- Whether litigation could have been managed more proportionately.
A party may succeed at trial yet still find that its conduct deprives it of a more advantageous costs order.
In that sense, winning can sometimes mean losing.
The Wider Message from the Courts
This decision sits comfortably alongside the growing body of authority encouraging mediation and ADR.
Following decisions such as Churchill v Merthyr Tydfil County Borough Council, courts have made it clear that parties are expected to engage seriously with alternative methods of dispute resolution.
Ignoring a mediation proposal is becoming increasingly difficult to justify.
Even where settlement is unlikely, mediation often helps parties:
- Narrow the issues;
- Understand litigation risks;
- Explore commercial solutions;
- Preserve relationships; and
- Avoid the enormous costs associated with trial.
Importantly, mediation does not require compromise on legal principle. It simply requires parties to explore whether a solution exists before incurring the costs and risks of a final hearing.
How ProMediate Can Help
Many disputes that ultimately proceed to trial could have been resolved—or at least significantly narrowed—through mediation.
At ProMediate (UK) Limited, we regularly assist parties involved in:
- Defamation and reputation disputes;
- Commercial and contractual disputes;
- Professional negligence claims;
- Property disputes;
- Probate and inheritance claims;
- Employment disputes; and
- Consumer complaints.
Peter Causton is an accredited mediator and barrister with extensive experience of resolving complex and high-conflict disputes. He understands both the legal issues and the practical realities that parties face when litigation becomes entrenched.
As this case demonstrates, parties ignore mediation at their peril.
Sometimes the most expensive victory is the one that could have been resolved months earlier around a mediation table.
To discuss arranging a mediation, contact ProMediate (UK) Limited and explore whether a negotiated solution could save time, cost and uncertainty.