A defendant who makes an offer of compromise while withholding expert reports in their possession that are relevant to the plaintiff's assessment of the offer may be denied the favourable costs consequences under DCR Pt 39A r 25(6), even where the plaintiff obtains a result less favourable than the offer. A significant change in the evidentiary basis of the case after the offer is made, particularly the late introduction of expert evidence that fundamentally alters the case the plaintiff must meet, can constitute exceptional circumstances warranting departure from the usual costs rule.
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