Following dismissal of the action for delay, the defendants sought substantial indemnity costs based on allegations of fraud made against them and the plaintiff’s delay in prosecuting the action.
The court rejected the argument that the action itself constituted an abuse of process merely because a prior action existed, noting the claims were not identical and the matter had not been decided on its merits.
However, the court found the plaintiff’s delay in prosecuting the action was contumelious, inexcusable, and unexplained, which justified an elevated costs award.
Substantial indemnity costs were therefore awarded to the defendants despite the absence of a trial on the merits.
The court also noted that while a Rule 49 offer had been served, the award of substantial indemnity costs made it unnecessary to determine whether that offer independently justified enhanced costs.