MJS Projects (March) Limited V RPS Consulting Services Limited

Costs normally follow the event, but the court may depart from that order where the successful party’s conduct makes departure just. A refusal to mediate is not automatically unreasonable. The court must assess the parties’ conduct as a whole, including the nature and merits of the dispute, other settlement activity, the cost and timing of ADR, and its realistic prospects of success. Indemnity costs require conduct or circumstances taking the case out of the norm. Criticism of an expert, unsuccessful tactical choices and late expert testing will not necessarily meet that high threshold. An interim payment on account ordinarily starts with the approved costs budget less 10%, with interest added.

The claimant’s claim concerning the design and construction of a container park had been dismissed in the substantive judgment at [2025] EWHC 831 (TCC). The defendant was therefore the successful party. The claimant sought no order as to costs, alleging an unreasonable failure to mediate and a late change in the defendant’s expert evidence. The defendant sought the usual order, indemnity costs for the expert evidence phase, and payment on account.

The issues were whether the defendant’s refusal to mediate was unreasonable, whether the expert evidence justified a departure from standard costs assessment, and what sum should be paid on account.

1. Usual costs order. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed. Under CPR 44.2, the court considered the parties’ conduct and all the circumstances. The defendant’s refusal to mediate was assessed in context. It had raised workmanship and causation issues, provided calculations, sought the claimant’s expert evidence, proposed other forms of ADR and made settlement offers. The claimant had not meaningfully addressed the workmanship case or provided its expert report, even on a without-prejudice basis. The refusal to mediate until the expert evidence was understood was reasonable.
2. The factors identified in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 were relevant but did not require a costs sanction. Mediation was not the only or preferred form of ADR. The technical dispute depended on competing expert evidence, remained widely separated, and mediation did not have reasonable prospects of success.
3. The late error concerning the mass concrete taper and the additional calculations were not material grounds for depriving the defendant of costs. The taper was not part of the claimant’s pleaded case, and the calculations were a final sense-check of criticisms raised by the claimant’s expert.
4. Indemnity costs refused. The applicable question, stated in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 at paragraph 39, was whether the conduct or circumstances took the case out of the norm. The claimant’s expert had serious deficiencies, but the solicitors had given him the correct legal test. The compressed expert timetable, tactical choices and failure to identify every weakness did not cross the high threshold. Costs were assessed on the standard basis throughout.
5. Payment on account. Applying MacInnes v Gross [2017] 4 WLR 49, the reasonable starting point was the approved costs budget reduced by 10%, with 4% interest added. The defendant was awarded £309,673.80 plus interest at 4%.

This was a first-instance costs and consequential-orders judgment following dismissal of the substantive claim in [2025] EWHC 831 (TCC).