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MJS Projects (March) Limited v RPS Consulting Services Limited
[2026] EWHC 884 (TCC) | High Court of Justice, Business and Property Courts in Leeds, Technology and Construction Court
Before HHJ Kelly, sitting as a Judge of the High Court | Heard 14 May 2025 | Handed down 15 April 2026
Interactive Process Flow | Costs after failed design claim, mediation refusal and expert criticism
Case Analysis Process Flow
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1. Case Overview
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Case: MJS Projects (March) Limited v RPS Consulting Services Limited [2026] EWHC 884 (TCC)
Court: High Court of Justice, Business and Property Courts in Leeds, Technology and Construction Court
Judge: HHJ Kelly, sitting as a Judge of the High Court
Hearing Date: 14 May 2025
Judgment Date: 15 April 2026
Case No: HT-2022-LDS-000011

After dismissal of MJS Projects' design claim concerning a container park, the claimant accepted the ordinary costs rule but sought no order because RPS had declined mediation and its expert changed aspects of evidence late. RPS sought its costs and indemnity costs for the expert phase because of serious criticism of the claimant's expert (paragraphs 1-9 and 44-87).

Central Legal Test: The court considered all circumstances under CPR 44.2, including whether declining mediation was unreasonable in context and whether late expert developments caused material unfairness. Indemnity costs required conduct or circumstances outside the norm; strong criticism or an unsuccessful expert case did not automatically meet that high threshold (paragraphs 5-9 and 44-84).
Substantive Result
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The professional-negligence claim had been dismissed because the court did not accept the claimant's expert evidence and found workmanship caused the damage (paragraphs 1 and 71-84).
Competing Conduct Cases
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MJS relied on mediation refusal and RPS's expert changes. RPS relied on MJS's failure to engage with workmanship and serious defects in its expert case (paragraphs 3-4 and 19-43).
2. Procedural History
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Costs Hearing
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The judgment followed a separate costs and consequential-orders hearing after the reported merits decision (paragraphs 1-4).
Detailed Assessment
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The recoverable costs were left for detailed assessment, with an account payment fixed immediately (paragraphs 44 and 85-87).
3. Defendant's Position
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RPS said it had engaged in other ADR and made offers, reasonably needed MJS's expert case on workmanship before paying for mediation, and was entitled to indemnity costs for the expert phase.

Reasoned Mediation Position
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It repeatedly explained workmanship and supplied calculations, while MJS took 19 months to respond and would not share its expert report (paragraphs 23-40 and 44-51).
Expert Phase
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It relied on the claimant expert's failure to apply the legal test, inadequate workmanship analysis and unnotified late calculations (paragraphs 71-84).
4. Claimant's Position
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MJS said mediation was suitable and likely to settle a moderate-value expert dispute, and that a late change in RPS's expert evidence on concrete taper and calculations materially affected trial fairness.

Mediation
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It had proposed mediation at several stages and said distance between the parties and competing experts were reasons to mediate, not refuse (paragraphs 19-22).
Late Evidence
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It said RPS's expert changed his position and produced calculations shortly before trial after the case had been prepared.
5. Court's Analysis
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Mediation Refusal Reasonable
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RPS did not reject ADR generally. It reasonably sought a meaningful response on workmanship and the expert basis before mediation, made offers and faced late conditional dates from MJS (paragraphs 44-51).
No Material Expert Conduct Sanction
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The concrete-taper issue was not part of MJS's pleaded design case, and the later calculations were a legitimate response or sense check that did not materially drive costs or outcome (paragraphs 52-56).
No Indemnity Basis
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The claimant expert was heavily criticised and decisive to the loss, but the legal team had given correct instructions and could not reasonably predict his oral departure. Unsuccessful tactics and expert mistakes did not pass the high threshold (paragraphs 71-84).
Account Payment
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A 10% deduction from the approved budget was reasonable. No further reduction was made for an unused mediation phase because other ADR occurred and adjustment remained for assessment (paragraphs 85-87).
6. Decision and Outcome
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Winner: The Defendant (RPS Consulting Services Limited) succeeded.

Result: MJS had to pay RPS's costs on the standard basis throughout. Indemnity costs were refused. The payment on account was £309,673.80 plus pre-judgment interest at 4% (paragraphs 44, 74-84 and 85-87). The Claimant (MJS Projects (March) Limited) did not succeed on this application.

Practical Effect: RPS retained ordinary costs despite declining formal mediation, but did not obtain the more favourable indemnity basis for the expert phase.
Standard Costs
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The usual order applied for the whole claim (paragraphs 44 and 74).
Indemnity Refused
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Expert failings did not take the case sufficiently outside the norm (paragraphs 74-84).
Account
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£309,673.80 plus 4% interest (paragraphs 85-87).
7. Key Legal Principles and Practice Points
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ADR Context
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Refusal of mediation is not judged in isolation. Information exchange, other settlement steps, timing, cost and prospects all matter.
Expert Responsibility
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A party bears costs consequences of its expert case, but an expert's unexpected oral failure does not automatically justify indemnity assessment.
High Threshold
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Wrong tactics, evidence rejected at trial and professional criticism can remain within the ordinary range of litigation conduct.
Practice Implications
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For Claimants:
When proposing mediation, answer the opponent's core technical case or offer controlled disclosure of the expert basis. Avoid late conditions that make the proposal impractical.
For Defendants:
A reasoned refusal should identify missing information, propose other ADR and remain under review. Test experts against the pleaded legal standard before trial.
General Practice Points:
Mediation is strongly supported but not automatic. A party may reasonably defer it where the opponent has not explained the technical case needed for informed negotiation.
Legal Disclaimer
This interactive process flow is provided for educational and professional development purposes only and does not constitute legal advice. The content reflects interpretations and analyses that may not apply to specific circumstances. Contract interpretation depends on specific wording, jurisdiction, and factual context. Always consult qualified legal professionals before making decisions based on this content. SCCSI and its contributors accept no liability for reliance on this material.
This is a module from the Society of Construction Claims Specialists International's Construction Claims and Contracts Certification Programmes.
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