8 Accordingly, when the issue between the parties was resolved at mediation, the position was that, prima facie, the court would make no order as to the costs of the proceedings because to do so would require the parties to go to the expense of trying an issue on the merits when there was no need to do so.
9 In this case the defendant made an offer for the proceedings to be dismissed with each party to pay his and her own costs. The offer, however, was only open until the following day. Following that letter, the defendant has sworn and served no fewer than four affidavits in relation to the dispute. These include an affidavit from the managing agent of the property of some 47 paragraphs, an affidavit from the defendant's solicitor, plus further affidavits which address, amongst other things, the circumstances in which the lease was assigned to the plaintiff, conversations concerning the threat to change the locks on 12 May 2006, the mediation, and the non-payment of rent. This was a substantial body of evidence, apparently put on in order to establish that the merits of the dispute lay with the defendant and that the defendant ought to receive her costs on the principle that where a tenant obtains relief against forfeiture for non-payment of rent, the price of obtaining such relief is that the tenant pay the outstanding rent, plus interest, plus the costs of the proceedings. Of course that assumes that the lessor is entitled to forfeit the lease for non-payment of rent, which was an issue, it would seem, in the proceedings.
10 I cannot regard the expenditure of such costs with equanimity. For his part, the plaintiff contended that he should have his costs of the proceedings because the defendant acted unreasonably in threatening to change the locks when mediation was pending. He also sought a further opportunity to put on evidence to meet the evidence of the defendant. I declined to allow an adjournment for that purpose. I think it would be scandalous to allow the parties to incur further costs in putting on affidavit evidence in relation to the merits of the dispute.
11 But for the Calderbank letter of 23 May 2006, I would have ordered that there be no order as to costs in the proceedings with the intent that each party pay its own costs. That is the usual principle. Without investigating the merits of the case, it is impossible to say that one or other party would almost certainly have won. Nor can I say that one or other party acted unreasonably in bringing or defending the proceedings. Nor will the court countenance the incurring of further substantial costs in order for there to be an hypothetical trial of the merits.
12 The defendant did offer to consent to the proceedings being dismissed on the basis that each party pay his and her own costs. That is the order that I will make in substance. Had the defendant maintained today that that was the proper order to make, it would follow, in my view, that the defendant would be entitled to her proper costs of arguing what costs order was appropriate. However, on no basis would it be proper to allow the defendant costs, either on a party/party or an indemnity basis, of preparing the affidavits to which I have referred, which were prepared solely to deal with the question of costs.
13 As it was, the defendant before me did not contend that no order should be made as to costs but argued for a costs order in her favour. In those circumstances, and having regard to the shortness of time for which the Calderbank offer was open for acceptance, I do not think that that offer provides a sufficient reason for departing from the usual principle that there be no order as to the costs of the proceedings in circumstances such as the present.
14 For these reasons, I order that there be no order as to the costs of the proceedings with the intent that each party bear his or her own costs. Otherwise I order that the summons be dismissed.