A Calderbank offer expressed to be inclusive of costs is not automatically precluded from forming the basis of an indemnity costs order; the court retains discretion to consider such an offer according to its terms and all the circumstances. However, practical difficulties arise because the offeree cannot readily assess the costs component, and where the judgment falls below the inclusive offer, the offeror will be unable to establish the offer was bettered without a costs assessment. A trial judge's assessment of damages will be set aside where it rests on expert evidence whose factual substratum is demonstrably flawed, even where the expert was not cross-examined on the point.
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