When Saying “No” to Mediation Is Reasonable: Guidance from Grijns v Grijns

Judgment on matters consequential to the substantive claim was handed down in the case of Grijns v Grijns & Ors [2025] EWHC 2853 (Ch) towards the end of 2025, offering an insight into the court’s approach to a party’s failure to mediate, determining the reasonableness of any refusals to mediate or comply with onerous/unjust conditions, and the effect of this on costs orders.

The case concerned a property in Chelsea valued at £3.85m; the claim was brought by Andrew Grijns against various family members. The First Defendant (Andrew’s mother) was declared by the court to be the sole legal and beneficial owner of the property, and the Claimant was found to have occupied the property as a trespasser between 1 August 2023 and 30 May 2025, ordered to pay mesne profits for that period and all of his claims dismissed. 

The Claimant made four offers during the litigation, none of which were accepted:

• Offer 1: He receives 55% of the gross market sale price of the property;
• Offer 2: He receives 40% of the net proceeds of sale, remains in occupation of the property until after exchange of contracts for its sale, and assists in the sale process, with no order made as to costs;
• Offer 3: The property is sold and he is entitled to remain in occupation until after exchange of contracts, and he assists in the sale of the property, that 40% of the proceeds of sale are held by solicitors pending resolution of the litigation, and there should be no order as to the costs of the litigation; and
• Offer 4: He receives 25% of the net proceeds of sale, is entitled to remain in possession until 31 December 2024, retains the property as a correspondence address until 31 January 2025, pays no damages under the undertaking in damages he had given in respect of the interlocutory injunction and subsequent undertakings, and that there would be no order as to costs. 

Given that the court dismissed all of the claims, the Claimant’s four offers fell “very substantially short” of the outcome at trial: under the lowest offer, he would have received £900,000, whereas he actually recovered nothing and had substantial costs liabilities. 

The Claimant would in many cases be ordered to pay the Defendants’ costs of the proceedings (as the unsuccessful party in the litigation). The Claimant submitted that the successful Defendants should be penalised by way of a 30% to 50% deduction to their costs on the basis of their attitude to mediation and settlement. Together with a submission that the Defendants’ pre-litigation conduct should render the costs reduced by 50%, the Claimant’s overall submission was that there should be no order as to costs made in respect of the litigation, so that he would not pay any of the Defendants’ costs.  

The Claimant argued that the Defendants had unreasonably failed to engage in ADR (Alternative Dispute Resolution) throughout the litigation, and relied on, among other things, on the decision in Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002, in which the Court of Appeal decided that an unreasonable refusal to mediate might justify a departure from the usual costs order. The judge in this case recognised that the Claimant’s litigation was unfounded and meritless and, in those circumstances, it was potentially reasonable not to mediate (based on earlier court authorities). The court also found that there was nothing remotely unreasonable in the Defendants’ refusing offers which the Claimant latterly failed to beat; a party is not compelled to waste time and costs dealing with wholly unrealistic offers. Moreover, a party cannot feel compelled to settle unfounded litigation for fear of being penalised in costs. 

Importantly, on the facts, the Defendants never actually refused to mediate. In fact, it was the Defendants themselves who first suggested mediation in August 2023 but that was never progressed. The Claimant maintained he was not prepared to mediate if his brothers (Second to Fourth Defendants) were party to it (which is completely unrealistic in circumstances where the Claimant has joined those parties to the proceedings). In February 2024, the Claimant agreed to a mediation with all parties on the condition that the Second to Fourth Defendants only attended the part of the mediation which dealt with his claim in trespass. The court considered that the Claimant was unreasonable for seeking to impose conditions for agreeing to mediate. 

The Defendants had previously sought disclosure from the Claimant which had not been provided, and they decided that any mediation should follow that disclosure exercise. At this point, the court directions were in full swing, and it transpired that on the facts the parties simply ran out of time to mediate before the trial, rather than the Defendants having refused to mediate unreasonably or otherwise. 

During litigation, the paramount duties on parties remain the same: (i) to consider ADR throughout the course of litigation, (ii) to respond to offers to mediate, and (iii) not unreasonably to refuse to mediate. However, Grijns v Grijns confirms that such duties do not compel a party to settle unfounded litigation for fear of being penalised in costs. A costs penalty should not bite in circumstances where proposals to mediate are responded to, and if rejected, good reasons are provided. A reasonable rejection may include where the proposer has sought to place unreasonable conditions on the prospective mediation, or where the parties simply do not have enough time before trial for an effective mediation to be held.