17 On behalf of the plaintiffs, it was submitted that the defendant's conduct, both before the litigation and as a litigant, was properly to be described as misconduct. Reliance was placed upon the criticisms which I have made of the defendant's conduct in my reasons for judgment and, in addition, to some further failings on the part of the defendant in relation to discovery of documents in the proceeding.
18 It is true that I have been critical of Mobil in my reasons for judgment. These criticisms extend to both pre-litigation conduct and conduct by Mobil during the course of the trial. However, notwithstanding these criticisms, I am not persuaded that this is an appropriate case for me to exercise my discretion to make a special costs order as sought by the plaintiffs. In my view, even when the conduct of the defendant as a litigant is viewed in the context of my criticisms of its pre-litigation conduct, the conduct of the defendant as a litigant is not sufficiently delinquent or unmeritorious so as to justify departure from the ordinary rule as to the basis of assessment of costs.
19 In my reasons for judgment I was critical of the defendant's conduct as a litigant in two respects. First, I was critical of the failure of the defendant to discover an internal email dated 3 October 2005 from Mr Samardjiev to Mr DeFina. That email ought to have been discovered in compliance with the defendant's continuing discovery obligations. It was only produced in response to a notice to produce served on the defendant the day before trial.
20 In my view, although it is regrettable that the defendant did not comply with its on-going discovery obligations, it is not uncommon that parties overlook these obligations when they are preparing for a trial which is imminent. When the email was produced, it did not cause any substantial disruption to the trial and certainly did not cause any prejudice to the plaintiffs. Indeed, they relied heavily upon it.
21 I am not prepared to infer that a deliberate decision was made to withhold the email in circumstances where its relevance was appreciated by the defendant and its advisers. Even if the discoverability of the email had been considered by the defendant and its advisers prior to the service of the notice to produce pursuant to which it was produced, the only inference which I would be prepared to draw is that it was considered to be irrelevant. Indeed, when it was produced, the only basis for opposition to its admission into evidence was that it was irrelevant. After hearing argument, I decided to admit the email into evidence.[8] Even though the defendant was unsuccessful on this argument, I am not satisfied that its opposition was such as to amount to misconduct.
22 Secondly, the plaintiffs relied upon my findings that Mobil and its solicitors instructed Mr Samardjiev to put all of the proposed clean up works at the land "on hold" pending the completion of the trial of the proceeding. In this respect, I was critical of the defendant in my reasons for judgment on two grounds. First, because the direction to Mr Samardjiev had the effect of delaying Mobil complying with its obligations under the clean up notice issued by the EPA. This is not a matter which relates to the conduct of the defendant as a litigant. It had no effect upon the plaintiffs.
23 Secondly, I was critical of the conduct of the defendant in this regard because it may have had the consequence that evidence as to the actual state of contamination in the soil at the land was not available to the Court. However, even if the proposed clean up works had been completed before the end of the trial, an adjournment would most likely have been necessary to deal with any evidence resulting from testing for contamination during the clean up process. Further, in circumstances where the clean up works had been put "on hold", the plaintiffs could have made an application for the trial to be adjourned pending the completion of those works and the gathering of evidence in connection with them. No such application was made.
24 Although I remain critical of the defendant's conduct in this regard, this conduct was not, in my view, conduct of the defendant as a litigant. The fact that the defendant's conduct in this regard was obviously influenced by the existence of this proceeding does not make it conduct of the defendant as a litigant. In any event, this aspect of the defendant's conduct is not of itself a sufficient ground upon which I would be prepared to order that the defendant pay costs on an indemnity basis. I note that no evidence which in fact existed was withheld from the Court or the plaintiffs.
25 Finally, I note that the plaintiffs also relied upon the failure of the defendant to discover its Environmental Remediation Specifications and some reports by IT Environmental and related correspondence of September 2005. Reliance was also placed upon the fact that the notes made by Mr Williams of the 20 March 2001 meeting were not discovered. However, there is no evidence that those notes are still in existence.
26 In my view, the submissions by the plaintiff overstated the significance of the documents which were not discovered. Further, there were many documents which the plaintiffs failed to discover until a very late stage. The fact that there were discovery issues as the trial approached and in the early stages of the trial is not, in my view, sufficient to warrant an indemnity costs order. It appears that both sides had some deficiencies in their discovery and that these were, in one way or another, made good so that no party was deprived of any relevant document which was in existence.
27 For the above reasons, I refuse to exercise my discretion to make a special costs order. The plaintiffs are entitled to be paid their costs in the ordinary way, on a party and party basis.