England and Wales deals with the footnote issue by sometimes allowing for a 'Protective Costs Order' if the issues raised are of general public importance, reso

England and Wales deals with the footnote issue by sometimes allowing for a 'Protective Costs Order' if the issues raised are of general public importance, resolving them is in the public interest, and the applicant (normally for judicial review) has no private interest in the outcome of the case. This lets the judges cap costs awards prospectively (as low as zero if necessary) if the alternative is that a meritorious case is likely to be dropped to avoid the risk of an unaffordable costs award.