Grijns v Grijns & Ors [2025] EWHC 1413 (Ch)[1], [2025] EWHC 2853 (Ch)[2] (“Grjins”) are recent High Court judgments which consider, amongst other points of law, the scope of mediation and the impact this has on an assessment of costs.
Current Position
Mediation is a prominent form of Alternative Dispute Resolution (“ADR”) in civil litigation. However, mediation in itself has been, for many years and across many jurisdictions, a voluntary form of dispute resolution.
There are differing schools of thought on mediation. Some consider this to be a mandatory part of resolving a much larger dispute; for instance, mediations by way of MIAMS are mandatory in divorce matters. Others consider the best outcomes from mediation arise from willing and voluntary parties. Indeed, this is the position Lord Justice Dyson took in the matter of Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002(“Halsey”):
“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.”
This decision effectively limited the Court’s discretion to order parties to mediate or to consider ADR.
In 2023, the Court of Appeal in Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 (“Churchill”) did not consider Lord Dyson’s findings in Halsey binding in respect of mediation. Rather the Court of Appeal decided that it is open to the Courts to make an order for parties to engage in ADR and/or stay proceedings for ADR to take place. Interestingly, this was not an authority that was considered in Grijns.
Grijns v Grijns & Ors Background
The claim concerned a family dispute over a property in Chelsea worth approximately £3.85 million (“the Property”). The Claimant, Andrew Grijns, had a number of claims against his siblings and his mother, who were joint Defendants in the claim. One of his claims was based in the doctrine of promissory estoppel, that he was entitled to a substantial beneficial interest of the Property. The Claimant claimed he was entitled to two thirds of the Property value. The Claimant asserted that he relied on assurances made by his parents, giving rise to his entitlement to a beneficial interest in the Property. His mother denied making such assurances, in fact she made a counterclaim for mesne profits or damages for use and occupation from the expiry of the Claimants licence to occupy the Property. This counterclaim for damages also included a claim for account profits following the Claimant letting parts of the property without his mother’s consent.
In short, the claim was wholly unsuccessful. The Claimant was found to have been in occupation of the Property as a trespasser and was ordered to pay mesne profits for the period of his occupation. The Court made a declaration that the first Defendant, the Claimant’s mother, was the sole legal and beneficial owner of the Property.
The costs hearing was later heard by Master Bowels[3].
The Claimant sought a deduction in the Defendants costs or no costs order being made. The Claimant’s reasons for seeking a deduction or no order as to costs was due to the Defendant’s pre-litigation conduct and the Defendant’s negative attitude towards potential settlement, by way of mediation of the claim.
The Claimant made the following offers[4]:
- The Claimant receives 55% of the gross market sale price of the Property.
- The Claimant receives 40% of the net proceeds of sale and remain in situ until after the exchange of contracts and assists in the sale process with no costs order.
- The Property be sold, that the Claimant should be entitled to remain in occupation until after exchange of contacts and assist in the sale of the Property, that 40% of the proceeds of sale, on sale, be held by solicitors, pending the resolution of the litigation and that there should be no order as to costs.
- The Claimant receives 25% of the net proceeds of sale, remain in occupation until a specified date, pay no damages under the undertaking in damages he had given in respect of the 13 June 2023 interlocutory injunction and subsequent undertakings and that, again, there would be no order as to costs.
Findings of the Court
As the claim was wholly unsuccessful, the usual costs order would be for the Claimant to pay the Defendant’s costs in defending the claim and or the partial success in the counterclaim.
The Claimant submitted that in light of the offers made and the Defendant’s attitude towards settling the claim, the Defendant’s costs should be reduced by 30% to 50%. The Master considered Halsey on whether unreasonable refusal to mediate justified departing from the usual order on costs. The Master also considered PGF II SA v OMFS Co Ltd [2014] 1 WLR 1386 which provides that a failure to respond to a serious request to mediate is generally unreasonable, but this is not always the case, and it is important to consider the context.[5] Finally, the Master considered Jackson ADR Handbook, 4th Edition, 2025 which notes situations where a refusal to mediate may be justified, including where a claim is unfounded.
In the costs’ judgment, the Master notes the unfounded and baseless nature of the Claimant’s claim and based on earlier Court authorities, it was potentially reasonable not to mediate. The notable point in this claim is that the Defendants did not refuse to mediate. In fact, the Master recognised that the Defendant initiated settlement discussions but were faced with unreasonable conditions to mediate. For instance, mediation would only be attempted in the absence of certain Defendants. It was the Claimant’s action which impeded the progress of settlement and or mediation.[6]
The Master considered whether it was unreasonable for the Defendants to respond to the Claimant’s mediation request. The Court recognised that generally a failure to respond to a mediation request is unreasonable. However, this is not an absolute rule, and there are exceptions to this. The Defendants were willing to mediate, but the conditions the Claimant sought to impose on the mediation were unreasonable. Additionally, it transpired that there were delays in the disclosure of evidence, which would have left insufficient time for the parties to engage in meaningful mediation prior to the trial.
On the point of the Defendant’s failure to engage with the Claimant’s settlement offers, they all fell short of the actual outcome of the trial. The Claimant was awarded nothing, and the claim was entirely unfounded. The Court found it reasonable for the Defendants to not engage with offers that were entirely unreasonable.
Master Bowles in his judgment states,
“Given the merits and given the unrealistic nature of Andrew’s best offer, set against those merits, there was, in reality, no sensible basis for a negotiation.”[7] Additionally, “in the result, I have no doubt at all that the fact of Andrew’s beaten offers and the fact that, rightly, in my view, they were not seen as a sensible basis for the commencement of a negotiation should not impinge adversely upon the Defendants’ entitlement to their costs.”[8]
Key Takeaways
Context is vital in assessing whether a failure to mediate is reasonable when it comes to the question of a costs assessment. Grijns confirms that parties do not need to settle unfound claims in fear of being penalised in costs. A claim that is pursued not on genuine grounds but to illicit settlement offers unrelated to the merits of the claim, enables a party to reasonably refuse to engage in mediation. The nature of the offers is linked to the context; where there is an entirely unreasonable offer made, as long as there are reasonable grounds to refuse it, it would unlikely attract a costs penalty. At it’s core, this case reaffirms that genuine willingness to mediate will be favourably viewed by the Courts.
[1] This judgment relates to the substantive claim itself.
[2] This judgment relates to the assessment of costs.
[3] Grijns v Grijns & Ors [2025] EWHC 2853 (Ch)
[4] Ibid at [67]
[5]Ibid at [77-78]
[6] Ibid at [102]
[7] Ibid at [73]
[8] Ibid at [75]