Where an appeal succeeds solely by reason of the admission of fresh evidence and not on any ground of error by the trial judge, the respondent may be ordered to pay only a proportion (here 60%) of the appellant's costs of the appeal. The general rule that costs of the first trial abide the result of the second hearing applies even where the remittal was necessitated by the appellant's own decision to proceed before obtaining further medical treatment, provided the appellant's decision was not unreasonable in the circumstances. Appellate courts should avoid making excessively complex issue-based costs orders that burden the Costs Court.
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