application of the rule where no determination on the merits
Quick Take
1Where proceedings are dismissed for want of prosecution without any determination on the merits, the general rule that costs follow the event under UCPR r 42.1 has no application because there is no 'event' to follow.
2A costs order may nonetheless be made where proceedings end without a merits determination if one party effectively capitulated or acted so unreasonably that the other party should obtain costs, but such a finding requires that the unreasonableness be manifest by reference to known and undisputed circumstances, not by reviewing large swathes of disputed evidence.
3Where both parties have equally failed to conduct proceedings in a manner allowing proper determination on the merits, neither can establish the requisite degree of relative unreasonableness to warrant a costs order in their favour.
