In Dover Historical Society, Inc. v. City of Dover Planning Commission, (Del. Supreme, July 10, 2006) (read opinion online   here ), the Delaware Supreme Court continued its tradition of enforcing high standards of conduct in litigation matters. In this case the state’s high court reviewed the denial of attorneys’ fees by the Superior Court in an appeal involving a developer who destroyed a historical building that was the subject of litigation. The litigation in the trial court was  pursued by the local city  in order to preserve the historical building that the developer sought to demolish. The court determined that the bad faith exception to the American rule applied (the American rule being that each side normally pays for its own fees, win or lose.)

 The noteworthy aspect of this opinion is that the imposition of fees as an exception to the American rule was based on conduct that was not by the lawyers directly and not necessarily a part of what is  "conventionally viewed" as core court proceedings. Here is the money quote from the decision: 

That construction of the bad faith exception (to require that the offensive conduct take place in the court proceeding itself) is, in our view, overly narrow. [The party’s ] destruction of the buildings was a direct (albeit highly improper) response to the appellants’ filing their second petition. It is difficult to imagine conduct more abusive and disrespectful of the judicial process, than a party’s intentional destruction of the very subject matter that the lawsuit seeks to protect and preserve. Although that behavior is atypical of the conduct normally found to invoke this exception (and thankfully so), nonetheless it constitutes bad faith."  Bad faith has been found to exist (inter alia) in cases where “parties have unnecessarily prolonged or delayed litigation, falsified records, or knowingly asserted frivolous claims[,] . . . mis[led] the court, alter[ed] testimony, or chang[ed] position on an issue.”(internal citations omitted)