Cost Sanctions for Not Mediating - An Old Fashioned Decision? Grijns v Grijins

2025 was a quiet year for decisions on mediation law, but it ended with one case worth consideration – Grijns v Grijns [2025] EWHC 2853 (Ch), a decision of Master Bowles in retirement, sitting in the Business and Property Court.

1 . The Facts

Since 1999 the claimant A had been allowed to live in part of a Chelsea property (valued in 2024 at £3.8 million) with his parents. A’s father died in 2019 since when A’s mother held title but lived mostly elsewhere. A’s continued occupancy was disputed by the rest of the family (DD) and in May 2023 DD forced entry to bring matters to a head, without success.

In June 2023, A issued proceedings alleging rights of occupation and ownership based on proprietary estoppel and further alleging that the incursion by DD in May 2023 had been trespass.  DD formally purported to terminate A’s licence to occupy in August 2023 and counterclaimed for possession and mesne profits.

The trial started on 27 November 2024 and lasted 8 days. Somewhat tardily, Master Bowles gave judgment on 12 June 2025, finding almost totally in favour of DD, and ordering A to give possession of the property and to pay mesne profits from August 2023 until he vacated. Ancillary issues, including what the costs order should be, were adjourned to a further hearing for two days in August 2025. Master Bowles gave judgment on the costs aspect on 5 November 2025 under the above neutral citation[1].

Unsurprisingly, in view of their overwhelming victory, DD applied for indemnity costs. A’s counter-argument was that DD’s unreasonable pre-trial conduct justified an award at least partly in his favour, also that he had won a modest victory over the period during which he should account for the profits of sub-letting. He also alleged unreasonable failure by DD to mediate.

A’s defeat was however virtually comprehensive. The Master commented:

Although the determination of this case gave rise to a lengthy, detailed and expensive factual enquiry, this was, when that enquiry was completed, always a very weak claim, which failed at every level.

Indeed, he found on the facts that;

[A’s] evidence as to the core assurances, fundamental to his case, was untrue and had been ‘constructed’, or concocted, for purposes of this litigation;

and that [A] was prepared to ‘construct’ a case and assert assurances by his mother that were never made, in the hope, not realised, that a settlement would be achieved and the claim would not be fully investigated at a trial.

He decided that A’s limited win over profits received did not affect the overall merits on costs. These findings were not propitious for A’s remaining case that DD failed to consider reasonable settlement offers and also failed to mediate.

2. Settlement Offers

A made four settlement offers, the first in May 2023 and the last in October 2025, each made without prejudice as to costs, broadly proposing a reducing percentage of net proceeds of sale, with A vacating after a set time. The only offer made by DD, just a week before trial in November 2024, said to be so as to forestall the need for A’s elderly ill mother to give evidence, was for A to vacate, paying mesne profits up to vacating, with no order as to costs on either side. A’s outcome in defeat was far more disadvantageous than any Calderbank offer he had made, so the only remaining basis for deflecting an almost certain indemnity costs order was unreasonable failure to mediate.

3. Failure to Mediate

A’s case on this again looked doomed to fail on the facts. Master Bowles noted that:

The prospect of mediation was first raised by Naylors LLP, who acted for the Defendants in the early part of this litigation and who suggested mediation as early as August 2023. Unfortunately, that mediation never progressed. Andrew took the position that the main element of business was, or would have been, his rights in the property and given his distrust of his brothers and, as he contended, their influence on his mother, he was not prepared to enter a mediation to which they were party, notwithstanding their position as defendants in the case. Nor, when it was suggested that the Fourth Defendant (Derek), who had assisted him in his own divorce in 2018, could attend the mediation with his mother, was he prepared to accept that compromise, describing Derek as having a contempt for the law and, also, as being someone who had referred to Janice in a seriously derogatory way.

I am afraid that I consider that Andrew’s approach to the mediation and the conditions that he sought to impose in respect of the mediation was high- handed. Andrew’s three brothers were defendants in the case, against whom, in due course Andrew was seeking penal damages. Any sensible settlement had to embrace their position as well as his mother’s. It is, also, not immaterial that the relief that Andrew was claiming in the litigation would, if granted in full, or even in large part, have, as explained in paragraph 278 of the handed down judgment, seriously, adversely and unfairly affected his three brothers. In that context, they had a very real interest in the mediation, not just as it related to the trespass claim, but generally.

So if there had not been ample grounds already for an indemnity costs order against A, DD might well have sought to argue that A’s refusal to mediate except on unreasonable terms might have justified such an order. Once the Master had found that A’s approach had been to construct a fabricated case so as to bluff some kind of favourable deal out of DD by litigating, it did not take much research in the Jackson ADR Handbook to find cases which justified DD’s not having engaged in mediation. It was just such an attitude in some of the earlier cases that led the Court of Appeal to reject a costs sanction in Halsey v Milton Keynes NHST[2] in the light of unjustified threats made by Mrs Halsey’s solicitor, and for Lightman J in Hurst v Leeming[3] to refuse to penalise the defendant for refusing to mediate at the behest of the intransigent Mr Hurst. Master Bowles indeed declined to penalise DD for not mediating. Failing to mediate with an intransigent A was found not to have been unreasonable.

4. Questions Arising from Grijns

And yet the rejection of a costs sanction in Grijns should still provoke questions. The title of this article suggests that the decision looks old-fashioned, and it is when set against the developments in the relationship between mediation and civil justice that were going on in parallel with this litigation. Churchill v Merthyr Tydfil CBC[4], which established that courts could order unwilling parties to mediate, was decided in November 2023, a full year before the trial in Grijns. Churchill makes no appearance in Master Bowles’ judgment. None of the cases cited by him are later than 2020[5]. Some reliance is placed on Patten LJ’s much-criticised decision in Gore v Naheed, one which displayed profound judicial ignorance of what mediation can achieve in unpromising or apparently uncompromising circumstances.

The failure to consider more up-to-date decisions in Grijns comes into sharper relief when considering the last directions hearing in Grijns – before Master McQuail on 23 September 2025. Although this was primarily about disputed disclosure, the Master also made a Fontaine ADR direction that the parties should at all times consider ADR. Whether this went on to require filing of witness statements contemporaneous with any refusal to explain it is not clear from the Bowles judgment. If it had, then the right and updated decision to cite would have been Northamber v Genee World[6], in which the Court of Appeal sanctioned a party for failing to comply with the witness statement requirements of such an ADR direction.

Consider too the timing of Master McQuail’s direction order of 23 September 2025, just under a year after the amendments to the CPR made in consequence of Churchill, enlarging active case management in accordance with the overriding objective to include “using and promoting alternative dispute resolution” and providing specifically for ordering ADR within case management in Parts 3, 26, 27 and 28. Master McQuail could have ordered the parties to mediate despite the imminence of trial in late November, just as Miles J did in the case of DKW Retail v City Football[7]¸ at a pre-trial review heard in November 2024 before a trial set for December 2024. Miles J, adopting the new Churchill/amended CPR regime, ordered reluctant parties into a “short and sharp” mediation at the last minute, just to see if an expensive trial might yet be avoided. The last paragraph of his judgment records what must have marked the parties’ surprise and Miles J’s pleasure:

Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute.

This is not to say that a late mediation in Grijns would have settled the claim and counterclaim. It is impossible to predict what might have happened if this warring family had been able to meet within the security of a confidential mediation, reassured that if they chose to signal a change of position which was not accepted, such a concession would be off the record and kept from the trial judge. Maybe A, who had made a series of reducing offers over the course of the litigation would have gone further. Even if not, it would have called A’s bluff, and DD could make an informed decision as to whether to make their last Calderbank offer and on what terms.  The outstanding disclosure issue was no reason for not mediating in Grijns. There was a similar disclosure issue late in the day in DKW Retail which did not impede a settlement. With the huge costs of an eight day trial imposed on top of over two years of litigation, the cost of mediating would have been trivial by comparison. Furthermore, a late mediation would have forestalled the need for a further two-day hearing (following the eight day trial) to consider whether refusing ADR justified a costs sanction.

5. Ancient and Modern Approaches

If Churchill had preceded the Grijns litigation completely, surely an early mediation would have been sensible, before the litigation costs got out of hand, perhaps at the stage that it was first proposed by DD in August 2023. If either party rejected it, application could be made to the court for a mediation order. If no such application was made, and at the end of the litigation one party sought to rely on the other’s refusal, the court would simply ask why no application was made to the court if that party was so keen to mediate, and thus forestall any old-fashioned Halsey-type costs hearings over whether or not to impose a sanction for refusal.

One of the very early and far-sighted decisions before Halsey[8], which arguably has renewed significance, even suggests that in ordering a mediation, the judge can order that certain parties attend it. This would have overcome A’s objections to mediating with his brothers which was the excuse rejected by Master Bowles in response to the mediation proposal in August 2023.

In late 2025, I started a CEDR website article about DKW Retail in the following terms:

There may still be litigators who have not read or even heard of Churchill v Merthyr Tydfil CBC and the revolution it has wrought over the relationship of mediation to civil justice. It established that judges can after all order parties to use mediation, thereby overruling Halsey v Milton Keynes NHS Trust. There may be a number more litigators who are sceptical about the value of the Churchill decision, who wonder whether ordering people to mediate is a good idea, and whether there is a way to dilute its effect.

To find evidence that there may be judges (or counsel making submissions to judges on this topic) who have not yet appreciated the profound difference to civil justice wrought by Churchill and the consequent amendments to the CPR is surprising. An earlier case in 2025 – Assensus v Wirsol Energy[9] showed an identical lack of acknowledgement of those recent developments. Let us hope that future decisions in this arena are based on a fully up to date appreciation of law and practice as relating to mediation. Also there is a need for a clear understanding of how mediation regularly closes huge gaps between what parties claim and even what they say and feel about each other.

References

[1]  The citation for the substantive judgment is [2025] EWHC 1413 (Ch) and is on BAILII.
[2] [2004] EWCA Civ 576
[3]  [2001] EWHC 1051 (Ch)
[4]  [2023] EWCA Civ 1416
[5]  The date for Garrett-Critchley v Ronnan in his judgment is wrongly shown as 2024 instead of 2015
[6] [2024] EWCA Civ 428
[7]  [2025] EWHC 32331 (Ch) 
[8]  Blackburne J in Shiryama v Danovo [2003] EWHC 3006 (Ch)
[9]  [2025] EWHC 503 (KB)