The parties had divided success at the trial of this breach of contract case. Despite the plaintiffs beating their Rule 49 offer to settle, the trial judge deviated from the presumptive costs entitlement principles under Rule 49 on the bases that: (1) there was divided success at trial; and (2) one of the plaintiffs acted unreasonably during the litigation process, including having made for a poor trial witness and having delivered answers to undertakings late. The Court of Appeal held that these were not appropriate grounds for the trial judge to depart from the principles under Rule 49, noting that the discretion to depart from the presumption as to costs in R. 49.10(1) is not unfettered and must be exercised in accordance with the rule. The Court of Appeal increased the costs order of the trial judge accordingly.
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