A court should not make a declaration in a form not sought at first instance or on appeal where the parties may have conducted the case differently had it been sought and where issues about its appropriateness have not been the subject of submissions, notwithstanding the broad power under UCPR r 36.1. Where a party to proceedings dies before final orders are made, the procedural difficulty must be resolved before final orders can issue. Where a party whose solicitor appeared at the hearing was unable to give instructions on costs due to the party's death, liberty to apply for costs should be reserved.
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