Fisher v Fisher [2026] EWHC 1508 (Ch)

Another costly lesson in refusing to mediate in

Fisher v Fisher [2026] EWHC 1508 (Ch)

This was a long running probate dispute in which the claimants successfully applied to remove Mr Fisher as executor of his late mother’s estate. In the subsequent proceedings to finalise the administration, Mr Fisher failed to engage properly with directions, missed disclosure deadlines, and was ultimately excluded from cross examining witnesses at trial. Throughout, he repeatedly turned down the claimants’ invitations to mediate.

The judge ordered Mr Fisher to pay the claimants’ costs on the indemnity basis, a materially higher standard than the usual costs order. Mr Fisher’s refusal to engage in any form of alternative dispute resolution was treated as part of the wider pattern of conduct the court weighed alongside his failure to respond to correspondence and his rejection of a reasonable open offer.

As is now well established an unreasonable refusal to mediate rarely sits in isolation. It tends to compound whatever other conduct issues exist, and here it clearly did.

Key takeaways:
– A refusal to mediate is not, on its own, an automatic ticket to indemnity costs but combined with poor litigation conduct, it is likely to be.
– The court is willing to look at the whole picture: missed directions, ignored emails, rejected settlement offers, and a closed door to mediation, and treat them cumulatively.
– Genuine engagement matters more than tactical gestures. A grudging or token approach to ADR is unlikely to protect a party any better than outright refusal.
– Emotional investment in a family dispute is understandable, but it is not a substitute for engaging properly with the process. Sympathy for a party’s position does not translate into leniency on costs.

The financial consequences can be severe and immediate. Here, £50,000 was ordered on account of costs within 28 days, on top of the underlying liability.

The message from the courts continues to be consistent. If you are invited to mediate, think carefully before saying no, and think even more carefully before saying nothing at all.

Fisher v Fisher [2026] EWHC 1508 (Ch)

Judgment can be accessed here