The impression given by Masood Ahmed in his commentary on the 2011 case of Rolf v De Guerin is that any small builder who attempts to resist an entirely unmeritorious claim by defending it in court rather than submitting to mediation will find himself penalised in costs.

This conclusion is overstated. Contrary to Mr Ahmed’s summary, the defendant in Rolf did not ‘win at trial’. Rix LJ, giving judgment in the Court of Appeal, held that ‘Mrs Rolf was the overall winner, but only just’, emerging with a (low) percentage of what she had claimed. More to the point, the claimant and the defendant had each conducted their respective cases in a topsy-turvy way; the claimant (who started as a litigant in person but was represented at trial) making successive amendments to her claims, the defendant (who started with representation but fought the trial in person) warding off most of them by a line of argument which he had not pleaded nor relied upon at any stage until giving evidence at trial.

The normal costs outcome in such flawed circumstances - where neither side has put in a substantive case which the judge could accept - would, I suggest, be for no order, so the appeal court’s decision to quash an award in the defendant’s favour was hardly novel. Rix LJ did go on in his judgment to review previous cases on mediation including Dunnett v Railtrack PLC and Halsey v Milton Keynes General NHS Trust, making weighty pronouncements on the virtues of ADR in the context of small buildings disputes, and dangling the threat of costs penalties for litigants who ignore them.

But bad cases make bad law. What about a case which has sound legal merits, is argued cogently from the start and succeeds wholly at trial? Is the successful proponent of that case to be penalised because he failed to respond positively to an invitation to mediate from an opponent whose case has no merit?

It may take a brave litigant to refuse ADR in the light of Rolf, but there is still, I believe, a place for robust insistence on trial rather than mediation, and for costs following the event.

Hugh Sullivan, litigation partner, RadcliffesLeBrasseur, London, SW1