Grijns v Grijns & Ors concerns a sad tale of a family dispute over a multi-million-pound house in Chelsea, London. Whilst the facts of the case were unfortunate, there was a small upside in the lessons it offers on when to settle and how to do so, giving us more understanding of when you can ignore a mediation request.

Mediation has been a useful tool to resolve disputes for many years. Sadly, in 2004, the Court of Appeal made a decision that has held back the use of mediation for 20 years.

In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, Lord Justice Dyson said:

“To oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”

Ever since that decision, to force mediation has been seen as a breach of the parties’ right to a fair trial under Art. 6 of the European Convention of Human Rights.

Can courts force parties to mediate?

That position changed in 2023 with the Churchill v Merthyr Tydfil ruling.  [2023] EWCA Civ 1416, where the Court of Appeal, comprising the Lady Chief Justice, the Master of the Rolls (Sir Geoffrey Vos), and then Deputy MR (Lord Justice Birss), departed from Halsey, deciding that Dyson LJ’s comments were obiter (not binding), and found that the court can make an order for:

  • the parties to engage in non-court-based dispute resolution (‘NCDR’) (including mediation); and/or
  • a stay in proceedings to allow for NCDR to take place.

This brought mediation back into the ‘toolbox’ of the court’s dispute resolution options.

The court’s approach in Grijns

In Grijns, however, it seems the court did not consider Churchill. This leaves a question mark over whether the Master was aware of renewed ADR emphasis. Instead, the focus was on earlier cases about whether refusing mediation (or failing to respond to a mediation request) could justify a costs penalty.

In Grijns the case law focus was on Halsey and where an unreasonable refusal to mediate might justify a departure from the usual costs order. The judgment of Briggs LJ (as he then was) in PGF II SA v OMFS Co Ltd [2014] 1 WLR 1386, and the Jackson ADR Handbook, 4th Edition, 2025, paras. 11.64 and 11.65 were also considered, but this all pre-dates Churchill. Apparently, the judgment of HH Judge Waksman QC (as he then was), in Garritt-Critchley and Others v Ronnan and Solarpower PV Ltd [2025] 3 Costs LR 453 post-Churchill was considered.

The authorities the Master was looking at were said to go to two situations:

  • The situation where a party refuses to mediate and the situation where, without positive refusal, a party simply fails to respond to a serious request to mediate.

Silence vs refusal: Does it matter?

In Grijns, the Defendants never refused to mediate. While failing to respond is normally regarded as having acted unreasonably, as was said in PGF II by Briggs, and the ADR Handbook. However, Briggs explained that fact would not automatically give rise to a costs penalty. It was one aspect of the overall conduct of the parties to be addressed in the balancing process when determining the incidence of costs.

The court also examined the wider conduct of the parties. focused on conduct as to mediation, and settlement with those who did not accept that path saying they did so reasonably and should not be penalised in costs. It is clear that the claimant was seen as having been dishonest and so his offers of ADR were allowed to be viewed with some scepticism.

The Master confirmed that the conduct of the party against whom an award of indemnity costs is sought, must be outside the ‘norm’ attaching to such litigation. There is no need for the court to make any finding of impropriety, or dishonesty. Even where the conduct relied upon as the basis for an order for indemnity costs is demonstrably outside the ‘norm’, the court retains a discretion not to award costs on the indemnity basis.

In this regard the judgment of Tomlinson J (as he then was) in Three Rivers District Council v Bank of England [2006] 5 Costs LR 714, provides useful guidance. The core criterion was unreasonableness rather than conduct attracting moral condemnation. The Master also noted the importance of where the evidence advanced is dishonest. If the true purpose of the claim is to exact a settlement rather than to achieve a strict adjudication of the claimant’s rights, that will count against you. This is likely to be the true criteria for not accepting mediation and not suffering sanction, as the Churchill decision does not appear to have been raised with the Master. The devastating conclusion of the Master was that assurances, which constituted the core of the case, were invented, and therefore dishonest. The Master’s view was that this case was manifestly, well outside the ‘norm’.

When can you safely say no to mediation?

In Grijns, ultimately the Master concluded that the approach was to create an ‘anvil for settlement’; that is to say that the claimant was pursuing the case based not on its genuine merits but as a medium for exacting a settlement upon terms unrelated to the merits. Clearly in that case the offer to mediate was not considered one that had to be accepted.

In light of the Churchill decision and the change to the Civil Procedure Rules, parties should be considering the benefits of a mediation, because if they refuse, they may be ordered to do it anyway by the court and have to pay costs for the application. If you refuse, avoiding sanction will require the kind of concerning facts in Grijns.

If you have questions or concerns about mediation, please contact James Tumbridge.