An appeal is not so lacking in merit as to warrant indemnity costs where the primary judge did not deal with the argument that ultimately fails on appeal. A 'walk away' Calderbank offer may be genuine where a large body of costs has been incurred and the offer to forego them is real. The reasonableness of rejecting a Calderbank offer is assessed at the time the offer is made, looking forward, and the ultimate outcome is not determinative. Rejection of a walk-away offer is not unreasonable where the appellant's arguments, though wrong, were not unarguable and the appeal concerned a large amount of money.
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