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

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 1^st Defendant. At the Trial the Claimant was partly successful against the 2^nd Defendant and was unsuccessful against the 3^rd, 4^th and 5^th 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 2^nd, 3^rd, 4^th and 5^th Defendants. No decision was needed in relation to the costs incurred in relation to the 1^st Defendant due to filing of Notice of Discontinuance.

Issues

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

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

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

The parties agreed in principle that the 2^nd Defendant was liable for the Claimant's costs for the claim against the 2^nd Defendant. The issue was whether the 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd Defendant were too small a proportion of the total costs of the claim against the 2^nd 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 3^rd and 4^th 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 2^nd 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 2^nd Defendant argued that making a Bullock order would be unfair. In addition the 2^nd 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 2^nd Defendant did not argue that the claims against the 3^rd and 4^th Defendants were brought unreasonably; even if this argument had been put forward the Court would have ruled against the 2^nd Defendant in light of the evidence provided by the Claimant. In addition it was found that had the 2^nd Defendant accepted their responsibility at the outset it would have not been necessary for the Claimant to sue the other Defendants.

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

The above question was raised by Mr Justice Nicol and not by the Claimant or the 2^nd Defendant. The 2^nd 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 5^th Defendant?

The Claimant argued that there should be no order as the costs of the 5^th 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 5^th Defendant had been negligent, but it was submitted that the 2^nd Defendant was also vicariously responsible for that negligence since the two of them were partners. It was further submitted that it was the 2^nd Defendant who wished the 5^th 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 5^th Defendant's costs. Ultimately, however, in principal, it was concluded that the Claimant should bear the 5^th Defendant’s costs, but that the 2^nd Defendant must indemnify the Claimant for these as well. The reason behind this decision was the fact that the claim against the 5^th Defendant was reasonable for the Claimant to bring. In addition consideration was given to the 5^th 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 5^th 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.