A discontinuing plaintiff who seeks costs must establish not only that it achieved practical success but also that the defendant acted so unreasonably that a costs order in the plaintiff's favour is warranted. There is no prima facie rule that achieving practical success entitles a discontinuing plaintiff to costs. The onus lies on the discontinuing plaintiff to prove the relevant primary facts, the inferences to be drawn, and to persuade the court that an alternative costs order is appropriate. The question whether waiver of privilege can be effected merely by service of submissions was left open but the Court inclined against it in ordinary cases.
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