Delaware costs: ten days to apply, and a deposition transcript is only taxable if it went into evidence

Winning a Delaware case does not get you your costs automatically, and the deadline is short.

Rule 54(d): costs "shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs."

Ten days, by application. Miss it and the "as of course" entitlement has nothing to attach to.

What you can claim is narrower than most people expect, and the limits all turn on the same question: did it go into evidence?

The evidence test

Three subdivisions of Rule 54 apply the same condition to three categories.

Rule 54(f) — court reporter fees:

The fees paid court reporters for the Court's copy of transcripts of depositions shall not be taxable costs unless introduced into evidence. Fees for other copies of such transcripts shall not be taxable costs. The production and playback costs associated with any videotape deposition may also be taxable as costs if the video deposition is introduced into evidence.

Rule 54(g) — witness fees: deposition witness fees are the same as statutory fees for testifying in Court, "and such fees shall be taxable as costs if the deposition is introduced into evidence."

Rule 54(h) — expert witness fees: fees for experts testifying on deposition "shall be taxed as costs pursuant to 10 Del. C. 8906 only where the deposition is introduced into evidence."

The practical consequence is significant in a case that settles or is decided on the papers. A deposition taken, transcribed and never introduced produces no taxable cost at all — and your own working copies are excluded outright by the second sentence of (f).

Rule 54(i) closes another door: "No appearance fees for attorneys will be permitted or taxed as costs in any action or cause in the Superior Court."

Costs that do not depend on winning

Rule 54(e) is the unusual one, and it runs on conduct rather than outcome:

Unnecessary costs. If at any time during the progress of an action it appears to the Court that the amount claimed is exorbitant so that the opposite party is put to unnecessary expense in giving bond, or if any party unnecessarily swells the record or otherwise causes unnecessary expense, the Court may, in its discretion, order such unnecessary expense to be taxed against the party causing the same, without regard to the outcome of the action.

Available "at any time during the progress of an action", and taxed "without regard to the outcome".

The bond limb is worth understanding. Pleading an inflated damages figure has a cost consequence in Delaware, because bond amounts key off the sum claimed — and this rule lets the Court charge the inflation back to the party who claimed it, win or lose.

When a partial judgment is final

Rule 54(b) governs whether a decision on some claims ends anything:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the Court may direct the entry of a final judgment upon one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Both elements are required and both must be express: a determination of no just reason for delay, and a direction for the entry of judgment.

Without them, any decision adjudicating fewer than all claims or parties "shall not terminate the action" and "is subject to revision at any time" until everything is resolved. That cuts both ways — a partial ruling against you is not final, and one in your favor is not safe.

Rule 54(a) defines "Judgment" broadly: it "includes any order from which a writ of error or an appeal lies."

For the stay that a Rule 54(b) judgment can attract, see enforcing a Delaware money judgment.

The offer of judgment

Rule 68 is the mechanism that shifts costs by making an offer early enough:

At any time more than 10 days before the trial begins a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the Clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Four points.

Only a defending party may make one. A plaintiff cannot use Rule 68 to shift costs onto a defendant.

The offer carries accrued costs with it, so the comparison later is between the judgment and an offer that already included costs to that date.

Acceptance is self-executing. Neither side needs the Court's approval — the offer and notice are filed and "the Clerk shall enter judgment."

Rejection is not the end. "The fact that an offer is made but not accepted does not preclude a subsequent offer."

The final sentence extends the rule to bifurcated cases: once liability is determined "but the amount or extent of the liability remains to be determined by further proceedings", the party adjudged liable may make an offer with the same effect, if served "within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability."

Where this connects

Rule 68 costs also appear inside the mandatory arbitration rule: where a plaintiff demands a trial de novo and the defendant then equals or beats the arbitrator's order, "the defendant shall be awarded costs, as described in Superior Court Civil Rule 68, incurred after the date of the arbitrator's order." See Delaware mandatory non-binding arbitration.

Because the taxable-cost rules turn on whether a deposition was introduced, they interact directly with deposition practice — see Delaware depositions.

For fee awards that run on different rules entirely, see Delaware Rule 11 sanctions and the Delaware motion to compel, where expenses are the default in either direction.

How Delaware compares

A short checklist

1. Diary ten days from final judgment to apply for costs. The entitlement needs an application.
2. Check what actually went into evidence. Transcripts, witness fees and expert deposition fees are taxable only then.
3. Do not include your own copies of transcripts. They are excluded by the rule.
4. Consider Rule 54(e) against an opponent who inflated the claim or padded the record — outcome does not matter.
5. For a partial judgment to be final, ask for both express findings under Rule 54(b).
6. If you are defending, make a Rule 68 offer more than ten days before trial, and remember it carries accrued costs.
7. Answer an offer within ten days — silence is a withdrawal, and the cost exposure begins.
8. A rejected offer can be followed by another. The rule says so.

Where these rules live

• Del. Super. Ct. Civ. R. 54 — Judgment; costs
• Del. Super. Ct. Civ. R. 68 — Offer of judgment
• Del. Super. Ct. Civ. R. 30 — Depositions upon oral examination
• Del. Super. Ct. Civ. R. 16.1 — Mandatory non-binding arbitration

This page explains what the rules say. It isn't legal advice.