Where a costs judge has resolved substantive questions of fact and law as necessary for the exercise of a costs discretion, the Lai Qin principle that courts should not conduct hypothetical trials does not apply to preclude that determination or to prevent appellate review of it. However, leave to appeal from a costs decision will be refused where the construction point is only one of multiple unchallenged bases for the costs order and the absence of factual findings makes the case an unsuitable vehicle for determining the question of law.
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