RPS Refused Mediation and Still Kept Its Costs

A claimant who pushes for mediation, loses at trial, then asks the court to deny the winner its costs faces a stiff test. In MJS Projects (March) Limited v RPS Consulting Services Limited [2026] EWHC 884 (TCC), Her Honour Judge Kelly explained why the Defendant’s refusal to mediate did not justify a departure from the usual costs order on these facts.

The facts

The claim arose from the design and construction of a container park near Felixstowe Port. MJS alleged negligent design by RPS, its structural engineer. The substantive judgment, at [2025] EWHC 831 (TCC), dismissed the claim. The costs hearing followed.

MJS proposed ADR pre-action in July 2022. RPS declined in September 2022, saying mediation was not appropriate until it had seen the Claimant’s expert report.

Further requests followed in June 2023, September 2023, and into the run-up to the February 2024 trial. Each was met with refusal, a counter-suggestion of expert meetings or commercial discussions, or a position that conditions were not yet right. RPS made Calderbank offers, including £200,000 about three weeks before trial. MJS made a Part 36 offer over £60,000 above the figure the quantum experts ultimately agreed.

The Defendant’s expert had stated in writing that a mass concrete taper was required under the relevant joint because of compaction issues, even though it was shown on the design drawing for a different joint. In both the joint statement and the report, he was of the opinion that the Claimant’s workmen should have inferred a taper was required at the relevant joint. At trial he accepted that the taper was not part of the design at the relevant joint. He had also produced additional calculations a week before trial.

The legal argument

For MJS, Mr Richard Sage argued that RPS had moved the goalposts each time mediation was raised, that the merits had never been one-sided, and that the late expert calculations and the shift on the mass concrete taper had been decisive. The proper order, MJS submitted, was no order as to costs. For RPS, Ms Anna Laney KC submitted that the correspondence had to be read as a whole. Workmanship issues had been pleaded and ventilated for four years before proceedings were issued. MJS had asked for design calculations, received them, then gone silent for nineteen months. MJS had never produced its expert report on a without prejudice basis when asked, and had not properly instructed its expert on the workmanship case. RPS also sought indemnity costs in respect of the expert phase.

The judge’s reasoning

The judge applied the Halsey factors to the chronology of events. Mediation is not the only form of ADR, nor the preferred one. RPS had engaged: it had provided detailed responses to the letter of claim, supplied calculations when asked, and made Calderbank offers. Mediation may have cost up to £50,000, which the judge treated as not insignificant, especially where the Claimant was not providing information reasonably requested, even on a without prejudice basis. The last suggestion of mediation, weeks before trial and on potentially disadvantageous terms to RPS, was not one RPS could reasonably be criticised for refusing. The judge held that this was not a case where the Defendant had refused to engage in ADR at all, and concluded:
“The Defendant’s reasoned rejection of one form of ADR, namely mediation, was not unreasonable.”

She also did not accept that mediation, even if it had taken place, would have had reasonable prospects of success in this case.

On the late expert evidence, the mass concrete taper had never been part of MJS’s pleaded case. The need for it arose only if compaction could not be achieved at the relevant joint, and the judge had found that it could. She characterised the Defendant’s expert’s late additional calculations as:

“simply part of the usual cut and thrust of a professional negligence trial”.

The judge said it did not seem to have had a material bearing on the outcome of the litigation.

On indemnity costs, the substantive judgment had criticised the Claimant’s expert for failing to apply the Bolam test in practice, for using an out-of-date technical publication without disclosing the fact, for re-running his FE analysis over the weekend before trial without telling anyone, and for adopting a forensic approach rather than methods a reasonably competent engineer would have used. The judge accepted that this went beyond one expert being preferred to another. She concluded:

“I am just persuaded that the answer to that question in this case is no, and costs should be assessed on the standard basis throughout.”

Her reasons: the Claimant’s solicitors had set out the correct legal test in the letter of instruction; the expert’s written reports and joint statement appeared to apply it; the expert evidence timetable had been “concertina-ed” into a short time frame before trial; and tactical decisions, even unsuccessful ones, do not by themselves cross the indemnity threshold. The expert had effectively gone off on a frolic of his own immediately before trial, but the judge found that this, combined with the rest, fell short of the indemnity threshold.

The decision: who won

RPS won the costs issue as well. The judge made the usual order: MJS pays RPS’s costs on the standard basis, subject to detailed assessment if not agreed. MJS’s application for “no order as to costs” was refused. RPS’s application for indemnity costs in respect of the expert phase was also refused. The judge ordered a payment on account of £309,673.80, plus interest at 4%.

Practical takeaway

A defendant who provides calculations, pleads its case in detail, makes serious offers, and asks the claimant to respond to the workmanship case it has actually pleaded is not refusing to engage merely because it declines mediation on the claimant’s preferred timing and terms. Pre-action protocol conduct matters: silence for nineteen months in answer to pleaded workmanship allegations counted against the side seeking the costs sanction. For a losing claimant whose expert performs badly, indemnity costs are not automatic. The question remains whether conduct was out of the norm, and the court will look at what the solicitors did, not only at what the expert said.

Summary

MJS Projects (March) Limited v RPS Consulting Services Limited [2026] EWHC 884 (TCC), HHJ Kelly sitting as a Judge of the High Court, judgment handed down 15 April 2026.
Costs judgment following dismissal of MJS’s professional negligence claim against its structural engineer (substantive judgment at [2025] EWHC 831 (TCC)).
RPS won the costs issue.

Usual order: MJS to pay RPS’s costs on the standard basis.

RPS’s refusal to mediate was held reasonable on these facts. MJS had not engaged with pleaded workmanship issues and had not provided its expert report on a without prejudice basis when asked.
Indemnity costs in respect of the expert phase refused. The judge was “just persuaded” that costs should remain on the standard basis throughout.

Payment on account: £309,673.80, plus interest at 4%.