The Court granted leave to discontinue preliminary discovery proceedings on terms that the plaintiff pay the defendants' costs, including on the indemnity basis from the date after expiry of an offer to dismiss with no order as to costs. The Court held that the plaintiff's failure to provide the defendants with a draft of the actual summons for preliminary discovery (as distinct from earlier correspondence foreshadowing different proceedings) deprived the defendants of a reasonable opportunity to comply without litigation, and this failure was decisive in refusing the plaintiff's application for a favourable costs order. The Court also emphasised that solicitors' assurances given on instructions regarding completeness of document production should not automatically be treated with suspicion, and that continuing proceedings to interrogate the adequacy of production, absent a proper basis for doubt, may be unreasonable.
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