A challenge to a costs order under r 26.08 that alleges only factual error (not error of principle) faces a very difficult task on a leave application, particularly after a long and complex trial where the trial judge is best placed to assess the costs discretion. The Court of Appeal may exercise its residual discretion under s 14C of the Supreme Court Act 1986 to refuse leave irrespective of prospects of success. Difficulty in assessing quantum of a claim is not endorsed as a general ground for avoiding the costs consequences of r 26.08, but the trial judge's assessment of that difficulty in a particular case will be given significant deference.
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