“No Lawyer Can Be Certain”: £4 Million of Litigation and the Case for Mediation

“No lawyer…can be certain that a claim will be successful.” Those were the words of one of the individuals behind the Claimants, written before trial in an attempt to encourage settlement. After some £4 million of litigation, the judge observed: “As to this, at least, she was right.”

[ML Technology Ltd & Anor v BEAT SAM Ltd & Ors [2026] EWHC 2142 (Ch)](https://www.bailii.org/ew/cases/EWHC/Ch/2026/2142.html) provides a striking reminder of a fundamental truth about litigation: however strong a party believes its case to be, no lawyer can guarantee the outcome.

There is another certainty. Litigation can be expensive, stressful, time-consuming and sometimes commercially destructive.

The judgment of Mr Daniel Alexander KC, sitting as a Deputy Judge of the Chancery Division, handed down on 14 August 2026, is an extraordinary example.

By its conclusion, the parties had incurred costs of approximately £4 million. Yet the judge concluded that neither side could properly be described as the overall commercial winner.

Indeed, his assessment of the Claimants' position was stark:

“The upshot is that the Claimants have, in a real sense, got nothing – and possibly ultimately less than nothing – out of this litigation…”

Approximately £4 million of total costs · More than £1 million incurred by the Claimants · More than £2 million incurred by the Defendants · Combined incurred and budgeted costs already exceeding £1.5 million in March 2024 · An ADR and settlement budget of only £5,000 for the Claimants, with similarly modest provision by the Defendants · A further £259,069.67 sought by the Claimants for disclosure · A further £470,747.25 sought by the Defendants for disclosure.

The decision provides a powerful contemporary illustration of why the courts increasingly encourage parties to consider mediation and other forms of alternative dispute resolution — and why ADR should be considered before costs and positions become entrenched.

“No lawyer…can be certain that a claim will be successful”

The judgment ends with an unusual postscript.

The judge referred to an email sent by one of the individuals behind the Claimants before trial in an attempt to encourage settlement. She warned of the “huge stress and additional costs involved” in going to court and observed that “no lawyer…can be certain that a claim will be successful.”

After years of litigation and millions of pounds in costs, the judge said: “As to this, at least, she was right.”

That is perhaps the simplest explanation of litigation risk.

Good lawyers can assess evidence, advise upon prospects and identify legal strengths and weaknesses. They cannot guarantee what witnesses will say under cross-examination, what evidence may emerge, how a judge will resolve disputed facts or how a developing point of law will ultimately be determined.

There is always litigation risk.

And the consequences are not purely financial. As the court recognised in ML Technology, proceedings can take a significant personal toll on the people involved.

What did £4 million of litigation achieve?

The costs figures are extraordinary.

The Claimants had spent more than £1 million. The Defendants' costs exceeded £2 million, and the judge referred to total costs of approximately £4 million.

Against that expenditure, one copyright claim was worth at most around £17,000. Another resulted in an agreed payment of £4,000. The remaining trade mark damages claim appeared, on the material then available, much more likely to be measured in tens of thousands than the seven-figure sums previously contemplated by the Claimants.

There had been some success on both sides, but neither had obtained what it had principally fought for.

The court consequently concluded that there was no overall winner and ordered each side to bear its own costs.

The judge described the Claimants' limited victory as potentially “Pyrrhic”.

That word should resonate with anyone considering litigation. Winning a legal point is not necessarily the same thing as achieving a successful commercial outcome.

£1.5 million budgeted for litigation — a few thousand pounds for ADR

There is another remarkable feature of the judgment.

By March 2024, the parties' combined incurred and budgeted costs already exceeded £1.5 million. Yet the sums allocated to ADR and settlement discussions were tiny by comparison.

The Claimants had budgeted £5,000 for ADR and settlement discussions. The Defendants' corresponding provision was similarly modest. The judge specifically drew attention to this disparity.

At the same time, enormous sums were being devoted to disclosure. The Claimants subsequently sought an additional £259,069.67 for disclosure alone. The Defendants sought an increase of £470,747.25 for their disclosure phase.

The contrast is difficult to ignore. Hundreds of thousands of pounds were potentially available to investigate and argue the dispute. Only a fraction of that amount had been allocated to trying to settle it.

More litigation does not necessarily produce a better answer

The judgment also contains an important discussion about proportionality.

The Claimants sought further disclosure which they argued would assist them in assessing damages and potentially facilitate ADR. The court refused.

Why? Because ADR is supposed, among other things, to avoid the costs of further litigation. As the judge observed, requiring parties to undertake expensive disclosure before they are prepared to negotiate can actually make settlement harder rather than easier.

That is an important practical lesson. Parties sometimes say:

• “We can mediate once we have all the evidence.”
• “We need disclosure first.”
• “We need the expert's report.”

Sometimes that is entirely justified. Effective negotiation requires sufficient information to make rational decisions.

But there is a danger in believing that every factual uncertainty must be eliminated before meaningful settlement discussions can begin.

Litigation rarely eliminates uncertainty completely. Instead, each additional procedural stage costs money — and money already spent can itself become another obstacle to settlement.

The courts increasingly steer parties towards ADR

The modern civil justice system does not treat mediation as something entirely separate from litigation. ADR is now an integral part of the court's case-management approach.

The important Court of Appeal decision in [Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416](https://www.judiciary.uk/judgments/james-churchill-v-merthyr-tydfil-county-borough-council/) confirmed that the court can lawfully stay existing proceedings for, or order parties to engage in, a non-court-based dispute resolution process.

Any such order must:

• not impair the essence of the claimant's right to a judicial hearing;
• pursue a legitimate objective; and
• be proportionate to achieving that objective — resolving the dispute fairly, quickly and at reasonable cost.

That represents an important development from the position sometimes understood to follow from the earlier decision in Halsey v Milton Keynes General NHS Trust.

The question is therefore no longer simply whether a court can encourage parties to mediate. In an appropriate case, the court can require parties to engage with a non-court dispute resolution process and can stay proceedings to enable that to happen.

What is a stay for ADR?

A stay does not determine the dispute. It effectively pauses the litigation.

Instead of continuing immediately with disclosure, witness statements, experts, trial preparation and the associated expenditure, the court can provide a period during which the parties attempt to resolve matters through mediation, negotiation or another appropriate dispute resolution process.

If settlement succeeds, the litigation may end. If it does not, the court proceedings can ordinarily resume.

The parties therefore do not surrender their right to have the dispute judicially determined, and an order requiring participation in ADR does not mean that any party can be forced to settle. They are being given — or in an appropriate case required to take — an opportunity to see whether judicial determination is actually necessary.

That is exactly what the court did in ML Technology

The judgment provides a practical example of judicial case management being used to create an opportunity for settlement.

Despite the enormous expenditure already incurred, there remained a further issue concerning the amount of a reasonable trade mark licence fee. The Claimants wanted a fuller inquiry involving further evidence.

The court instead:

• rejected further disproportionate disclosure;
• refused expert evidence on the remaining damages issue;
• imposed a tightly controlled and streamlined procedure, with limited statements of case and restricted factual evidence;
• limited the eventual hearing to no more than one day; and
• deliberately allowed time before the next procedural stage for negotiation or ADR.

The judge directed that:

“The parties should endeavour to resolve the dispute either by agreement or ADR if it appears that such would have a reasonable prospect of avoiding further cost.”

The message was clear: before spending still more money, try to resolve it. The court was actively attempting to prevent still further disproportionate expenditure.

Mediation is about managing risk, not conceding weakness

One persistent misconception is that suggesting mediation somehow indicates weakness. It does not. A party may have a very strong case and still have compelling reasons to mediate.

The relevant calculation is not simply “Will I win?” It is also “What will winning cost?” Businesses and their advisers should weigh:

• prospects of success;
• irrecoverable costs;
• management time;
• personal stress;
• uncertainty;
• reputational consequences;
• delay; and
• what the client actually wants to achieve commercially.

ML Technology demonstrates the distinction vividly. Both sides won arguments. Neither side was regarded as the overall commercial winner.

Mediation provides something a trial cannot

A court generally has to decide the legal claims before it and grant remedies available in law. Mediation permits considerably greater flexibility.

Depending upon the dispute, parties can agree:

• payment arrangements;
• revised commercial relationships and future working arrangements;
• licences;
• transfers of rights or property;
• confidentiality provisions;
• apologies, agreed communications and practical undertakings; and
• mechanisms for resolving future disagreements.

They can also agree something which courts cannot ordinarily provide: certainty. Settlement exchanges litigation risk for an agreed outcome.

Neither side necessarily obtains everything it wants. But both know the result, and that can itself have substantial commercial value.

ADR does not mean settlement at any price

None of this means that every case should settle, or that mediation guarantees settlement.

Some disputes genuinely require authoritative judicial determination. A party may need an injunction, a precedent may be important, one side may refuse to negotiate realistically, or the parties may simply remain too far apart.

Mediation does not require a party to abandon a good case or accept an unreasonable proposal. Nor does ordering parties to participate in an ADR process mean compelling them to settle.

What ADR provides is a structured opportunity to test whether the dispute can be resolved without incurring all the remaining risks and costs of litigation. If it cannot, the court remains available.

When should parties mediate?

The answer will depend upon the case, but the important point is that mediation should not automatically be left until immediately before trial. It can be considered:

• before proceedings are issued;
• after statements of case have clarified the issues;
• following initial disclosure;
• after expert evidence;
• following an important interim decision or judgment;
• before a particularly expensive litigation stage; or
• even after judgment where quantum or consequential issues remain.

Nor does an unsuccessful mediation mean that mediation should never be attempted again. Cases change. Evidence emerges. Legal issues narrow. Costs increase. Parties reassess risk.

A dispute which was incapable of settlement six months earlier may become highly capable of settlement later.

The human cost of litigation

The final paragraphs of ML Technology are particularly striking because they move beyond legal doctrine and costs calculations.

The judge had observed the individuals involved sitting at the back of the courtroom while lengthy legal arguments continued and further costs accumulated.

He recorded that the proceedings had taken a toll on the individuals behind the Claimants and had also had a significant financial impact upon the Defendants. His conclusion was simple:

“almost all involved with this case have suffered from its pursuit.”

That is something which can disappear from view once litigation develops its own momentum. Solicitors correspond. Counsel advise. Disclosure takes place. Witness statements are prepared. Experts report. Applications are issued.

But behind the procedural machinery are individuals and businesses living with the dispute. The point is not a criticism of the lawyers involved; it is the systemic one identified in the judgment — litigation can acquire momentum and continue consuming resources even where its commercial value has become questionable.

Litigation remains essential — but it should not always be the first or only answer

Courts provide an indispensable means of determining disputes where parties cannot resolve them themselves.

But modern civil justice increasingly recognises that a trial should not automatically be regarded as the inevitable destination of every issued claim.

Churchill confirms the court's ability, where appropriate, to steer parties towards non-court dispute resolution and even to stay proceedings or order participation in such a process.

ML Technology demonstrates why that matters. Approximately £4 million was spent. Both sides achieved some legal successes. Neither emerged as the overall commercial winner. Further litigation still remained. And, after all of that, the court deliberately created an opportunity for ADR before yet more costs were incurred.

Perhaps the most valuable observation in this exceptionally complex judgment is therefore also the simplest.

No lawyer can guarantee that litigation will succeed. Mediation cannot guarantee settlement either. But it can give parties an opportunity to control the outcome, manage the risk and potentially bring a dispute to an end before the financial and human cost of litigation overwhelms whatever it was they originally hoped to achieve.

This article is intended for general information only and does not constitute legal advice. The outcome of any dispute will depend upon its particular facts and circumstances.