Where the outcome of an appeal is substantially different from the outcome at trial, the appellate court exercises the costs discretion afresh rather than applying the House v The King standard of review to the primary judge's costs orders. Solicitor and own client costs closely approximate indemnity costs rather than party and party costs, and a contractual provision for such costs can justify a discretionary order for indemnity costs. The principle that a successful party may be deprived of costs on severable issues operates more strongly against a successful plaintiff than a successful defendant.
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