Duncan W. Glaholt

Following the dismissal of the plaintiff's action for delay, the defendants sought costs on a substantial indemnity basis.

The plaintiff argued the defendants should not receive costs due to their delay in bringing the motion to dismiss.

The court held the defendants were entitled to costs, but only on a partial indemnity basis, as the plaintiff's conduct was not reprehensible, scandalous, or outrageous.

Given the lengthy delay and the fact that the judges who dealt with the merits had retired, the court found exceptional circumstances warranted referring the costs for assessment rather than fixing them.

The defendants brought a motion to dismiss the plaintiff's action for delay under Rule 24 of the Rules of Civil Procedure.

The action, which alleged negligent engineering in the construction of a cogeneration station, had been dormant for several years following a successful appeal by the plaintiff in 2009.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants, as several potential witnesses were no longer available.

The court dismissed the action for delay and confirmed its authority to award costs, directing the parties to provide further submissions on the costs issue.