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Is it possible for the Claimant to lose their claim but still get their costs of the action? Bullock orders anyone?

View profile for Janina Muromceva
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It is not uncommon for the Claimant to sue multiple Defendants but how common and indeed is it possible for the Claimant to recover their costs of the whole action and avoid paying costs of the Defendants' against whom the Claimant's case was unsuccessful. The recent High Court case of Pa Abubacarr Jabang and (2) Dr Simon Wadman, (3) Dr Andrew Pool, (4) East Sussex NHS Trust, (5) Dr Yvonne Underhill [2017] EWHC 1993 (QB) dealt with these very issues.

Background

The Claimant brought a claim for damages against five Defendants. Shortly before the Trial the Claimant discontinued their claim against the 1st Defendant. At the Trial the Claimant was partly successful against the 2nd Defendant and was unsuccessful against the 3rd, 4th and 5th Defendants. On 24 July 2017 the High Court Judge Mr Justice Nicol was tasked with deciding on an appropriate costs Order in relation to costs of and associated with pursuing the claim against the 2nd, 3rd, 4th and 5th Defendants. No decision was needed in relation to the costs incurred in relation to the 1st Defendant due to filing of Notice of Discontinuance.

Issues

At the hearing Mr Justice Nicol had to decide on the following issues:

  • Whether the 2nd Defendant should pay all of the Claimant’s costs of their claim against the 2nd Defendant or whether there ought to be a reduction to reflect the Claimant's partial success at the Trial;
  • Whether the 2nd Defendant should indemnify the Claimant for their liability to pay costs of the 3rd and 4th Defendant i.e. whether a Bullock order was appropriate;
  • Whether the Claimant should be able to recover from the 2nd Defendant their own costs incurred in making his unsuccessful claims against the 3rd and 4th Defendants;
  • What order in principle should be made regarding the 5th Defendant's costs and the Claimant's costs of pursuing his unsuccessful claim against this party.

Should the 2nd Defendant pay all of the Claimant’s costs?

The parties agreed in principle that the 2nd Defendant was liable for the Claimant's costs for the claim against the 2nd Defendant. The issue was whether the 2nd Defendant was liable to pay all of the Claimant's costs given that the Claimant only achieved a partial success at the Trial.

The starting point regarding costs is that the unsuccessful party will be ordered to pay costs of the successful party. The Court, however, had a wide discretion as to costs and was, under CPR 44.2(2)(b), expressly allowed to make some other order. When deciding what order (if any) to make about costs the Court would have regard to all the circumstances of the claim including whether a party has succeeded on part of its case, even if that party has not been wholly successful.

Mr Justice Nicol recognised that although the Claimant was a successful party in this claim the Claimant was not successful in all of his allegations against the 2nd Defendant. In the circumstances the Court, under CPR 44.2(6), had a number of options including an order to pay a proportion of another party’s costs. The 2nd Defendant argued that they should be ordered to pay only 70% of the Claimant’s costs of pursuing his claim against them on the basis that 30% of the overall time was spent on the allegations that proved to be unsuccessful.

Mr Justice Nicol concluded that the 2nd Defendant had to pay all of the Claimant’s costs of his claim against the 2nd Defendant on the basis that:

“<…> the costs exclusively referable to the issue on which the Claimant failed against the 2nd Defendant were too small a proportion of the total costs of the claim against the 2nd Defendant to warrant such a division in this case.”

Should there be a Bullock order in favour of the Claimant to indemnify them for the costs of the 3rd and 4th Defendants?

The reason why the Court was invited to consider making a Bullock order arose from the fact that the general rule regarding costs meant that the 2nd Defendant was only liable for the Claimant’s costs of the case against them and therefore costs incurred to pursue the other Defendants had to be borne by the Claimant themselves.

Bullock orders were created before the CPR came in to force and served the purpose of protecting the Claimant, who reasonably brought a claim against more than one Defendant, from paying costs to either party even though he succeeded against one of the Defendants.

In this case the 2nd Defendant argued that making a Bullock order would be unfair. In addition the 2nd Defendant submitted that this was not the case whether the Claimant had to sue more than one Defendant because they were unsure which of them had caused the loss.

Mr Justice Nicol referred to the judgment in Moon v Garrett [2006] EWCA Civ 1121 where Waller LJ held that there were no hard and fast rules as to when it was appropriate to make a Bullock order but the Court needed to take into account the fact that, if the Claimant had behaved reasonably in suing two Defendants, it would be harsh if they ended up paying the costs of the Defendant against whom he has not succeeded. It was further suggested that it would always be a factor if one Defendant had sought to blame the other.

The Bullock order was ultimately made in favour of the Claimant given that the 2nd Defendant did not argue that the claims against the 3rd and 4th Defendants were brought unreasonably; even if this argument had been put forward the Court would have ruled against the 2nd Defendant in light of the evidence provided by the Claimant. In addition it was found that had the 2nd Defendant accepted their responsibility at the outset it would have not been necessary for the Claimant to sue the other Defendants.

Should the 2nd Defendant pay the Claimant’s costs of suing the 3rd and 4th Defendants?

The above question was raised by Mr Justice Nicol and not by the Claimant or the 2nd Defendant. The 2nd Defendant was ordered to pay all of the Claimant's costs on the basis that in the circumstances where a Bullock order was made it was only logical that the Claimant’s costs of the unsuccessful claims should be paid by the unsuccessful Defendant. Mr Justice said:

“Part of the purpose of a Bullock order is that the Court accepts that, in particular circumstances, the Claimant’s victory ought not to be eroded but there would be such an erosion by the Claimant having to meet his own costs of the unsuccessful claims.”

What should happen with costs of the 5th Defendant?

The Claimant argued that there should be no order as the costs of the 5th Defendant due to the fact that this party was not separately sued by the Claimant in the original action. The Claimant did allege that the 5th Defendant had been negligent, but it was submitted that the 2nd Defendant was also vicariously responsible for that negligence since the two of them were partners. It was further submitted that it was the 2nd Defendant who wished the 5th Defendant to be joined as an additional Defendant.

Mr Justice Nicol did not find the Claimant's submissions convincing and suggested that in principle the Claimant should have to pay the 5th Defendant's costs. Ultimately, however, in principal, it was concluded that the Claimant should bear the 5th Defendant’s costs, but that the 2nd Defendant must indemnify the Claimant for these as well. The reason behind this decision was the fact that the claim against the 5th Defendant was reasonable for the Claimant to bring. In addition consideration was given to the 5th Defendant’s settlement offer as to 'drop hands' settlement; it was decided that this offer did not carry any significant weight in the decision as to whether a Bullock order in principle should extend to the 5th Defendant’s costs as the time limit put on this offer was less than 31 hours.

Are there any lessons to be learnt by practitioners in light of the above case?

  1. Only bring claims against any additional Defendants if it is reasonable to do so. The potential issue here is that the term "reasonable" has a wide definition and, therefore, there is a significant uncertainty about what the Court might consider to be reasonable;
  2. Remember that Court has a wide discretion regarding costs so be prepared to put forward your best case in relation to costs at the end of any Trial;
  3. Remember that the list of potential orders regarding costs provided within CPR 44.2(6) is not exhaustive and that there are other options such a Bullock and Sanderson orders.

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