13 February 2026 / Masood Ahmed , Sanjay Dave Singh

Issue: 8149 / Categories: Features , Costs , Procedure & practice , Mediation , ADR , Dispute resolution

When refusal to mediate may not bite

What are the costs penalties when a defendant won’t mediate? Masood Ahmed & Sanjay Dave Singh consider the case law

This article examines the court’s treatment of a defendant’s refusal to mediate, illustrated in Assensus Ltd v Wirsol Energy Ltd.
It pays particular attention to the claimant’s costs arguments arising from that refusal.

It is trite law that a court may penalise a party in costs for refusing to engage with alternative dispute resolution (ADR) or simply ignoring an invitation to engage with ADR (CPR 44.4, Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416; Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288; Northamber Plc v Genee World Ltd and others [2024] EWCA Civ 428). However, such adverse consequences are not automatic, as illustrated by the recent decision in Assensus Ltd v Wirsol Energy Ltd [2025] EWHC 503 (KB).

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When refusal to mediate may not bite

What are the costs penalties when a defendant won’t mediate? Masood Ahmed & Sanjay Dave Singh consider the case law

This article examines the court’s treatment of a defendant’s refusal to mediate, illustrated in Assensus Ltd v Wirsol Energy Ltd.
It pays particular attention to the claimant’s costs arguments arising from that refusal.

Following the

If you are not a subscriber, subscribe now to read this content

If you are already a subscriber sign in

...or Register for two weeks' free access to subscriber content

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When refusal to mediate may not bite

MOVERS & SHAKERS

Sidley—James Inness

Haynes Boone—William Cecil

Devonshires—Nicholas Barrows