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).

Following the dismissal of the claimant’s claims, the court in Assensus was required

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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 dismissal of the claimant’s claims, the court in Assensus was required

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

Jurit LLP—Caroline Williams

Freeths—Michelle Kirkland Elias

Flint Bishop—Deborah Niven