The High Court has recently imposed indemnity costs in two cases (DSN v Blackpool Football Club Ltd and BXB v Watch Tower and Bible Tract Society of Pennsylvania & Ors) as a result of a party’s unreasonable failure to engage in ADR.

It is well known that the unreasonable refusal to engage in ADR may result in costs sanctions. In both the cases referenced above the party’s would not engage in ADR based on their belief in the strength of their respective cases.

The decisions in both these cases show that the court sets a high bar for when the strength of the case justifies a refusal to mediate.

With increased pressure on resources there may be an increase in sanctions on parties who do not explore alternative resolution options.