Delaware Code
Chapter 61. CONDEMNATION
§ 6111. Costs.

The costs of any condemnation proceeding provided for in this chapter, including a reasonable fee for the commissioners but in no case to exceed $20 per day for each commissioner, and including the cost of giving notice by publication and by registered mail as provided in § 6106 of this title, shall be borne and paid for by the plaintiff or plaintiffs in the proportions determined by the Court. Fees of counsel or of experts retained by any party may not be taxed as costs under any circumstances upon any of the parties or considered in determining the issue of just compensation, except as follows:

(1) At any time prior to the day before the compensation trial of a condemnation proceeding begins, the plaintiff shall serve upon the defendant(s) an offer to allow judgment to be taken against the plaintiff, in accordance with the terms of the offer, exclusive of court costs and interest. If the defendant(s) accept the offer by serving a written notice of acceptance upon the plaintiff, either party may then file the offer and notice of acceptance with the Court, together with proof of service thereof, and thereupon the prothonotary shall enter the notice of acceptance as if it were the final award pursuant to § 6108 of this title. An offer not accepted prior to the swearing of the commissioners pursuant to § 6108(c) of this title shall be deemed withdrawn, and evidence thereof is not admissible except in a later proceeding to determine costs pursuant to this section. The fact that an offer is made but not accepted shall not preclude a subsequent offer.
(2) If the award of just compensation, exclusive of interest, is closer to the highest valuation evidence provided at trial on the defendant's behalf than the plaintiff's offer made under paragraph (1) of this section, the defendant may apply for an order for the plaintiff to pay the defendant's reasonable litigation expenses, including reasonable attorney, appraisal, engineering or other expert witness fees actually incurred because of the compensation trial, by serving on the plaintiff and filing with the prothonotary a verified application therefor within 15 days after the final confirmed condemnation award. The application shall show cause why the defendant is entitled to an award pursuant to this paragraph; state the amount sought; and include an itemized statement under oath from an attorney or expert witness representing or appearing at trial on behalf of the defendant stating the fee charged, the basis therefor, the actual time expended and all actual expenses for which the recovery is sought. If requested by any party, or upon its own motion, the Court may hear the parties with respect to the matters raised by the application and determine the amount of litigation expenses to be awarded. Any order of the Court awarding expenses pursuant to this paragraph shall be filed with the prothonotary and, unless appealed within 30 days, shall be a final order. Any expenses awarded by the Court pursuant to this paragraph shall be paid within 30 days of the Court's final order. The Court, in its discretion, may reduce the amount to be awarded pursuant to this paragraph, or deny such award, to the extent that the defendant, during the course of the proceeding, engaged in conduct which unduly and unreasonably protracted the final resolution of the action, or to the extent the Court finds that the position of the plaintiff was substantially justified, or that special circumstances make an award of expenses unjust. In no event shall the amount of the expenses awarded pursuant to this paragraph exceed the amount awarded as just compensation.
(3) If the award of just compensation, exclusive of interest, is lower than the plaintiff's offer made under paragraph (1) of this section, the plaintiff may apply for an order for the defendant to pay the plaintiff's reasonable litigation expenses incurred after the service of the offer, excluding attorney fees but including reasonable appraisal, engineering or other expert witness fees actually incurred because of the condemnation trial, by serving on the defendant and filing with the prothonotary a verified application therefor within 15 days after the final confirmed condemnation award. The application shall show cause why the plaintiff is entitled to an award pursuant to this paragraph; state the amount sought; and include an itemized statement under oath from an attorney or expert witness representing or appearing at trial on behalf of the plaintiff stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which the recovery is sought. If requested by any party, or upon its own motion, the Court may hear the parties with respect to the matters raised by the application and determine the amount of litigation expenses to be awarded. Any order of the Court awarding expenses pursuant to this paragraph shall be filed with the prothonotary and, unless appealed within 30 days, shall be a final order. Any expenses awarded by the Court pursuant to this paragraph may be deducted from the award of just compensation, unless payment of the expenses awarded is otherwise made within 30 days of the Court's final order. The Court, in its discretion, may reduce the amount to be awarded pursuant to this paragraph, or deny such award, to the extent that the plaintiff, during the course of the proceeding, engaged in conduct which unduly and unreasonably protracted the final resolution of the action, or to the extent the Court finds that the position of the defendant was substantially justified, or that special circumstances make an award of expenses unjust. In no event shall the amount of the expenses awarded pursuant to this paragraph exceed the amount awarded as just compensation.

Structure Delaware Code