UCPR 42.4 costs capping orders are prophylactic case management tools that must be made early in proceedings and cannot be used to cap costs at the conclusion of a trial. CPA s 98(4)(c) gross sum costs orders may theoretically be sought by an unsuccessful party to cap a successful party's costs, but only in exceptional cases with a proper evidentiary foundation. The inherent unpredictability of FPA claims means that rejection of a Calderbank offer is less likely to be found unreasonable than in other types of litigation. Unsuccessful impecunious FPA applicants may avoid a costs order where the overall justice of the case warrants departure from the usual rule.
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