What happens when an injured claimant is uncertain about the identity of the perpetrator of the wrong and is confused about who to sue? One answer is to adopt a scattergun approach: sue everyone in sight and hope that within the cohort of defendants thus joined, the actual tortfeasor(s) will be ascertained and found to be accountable.
The problem then arises: the claimant may have won handsomely against the rascal responsible for the wrongdoing, but other defendants who were entirely innocent will have been brought into the action unnecessarily and, understandably, will be looking to the claimant for their costs. After all, the fact that the claimant succeeded against one of the cohort should not mean that the damages are all for him to keep. If there is now a fund out of which to discharge the costs of the “innocent” defendants, surely it is just that those defendants should have first snouts in the damages trough before distribution to the claimant?
The answer is “not necessarily”. It depends upon the reasonableness of the claimant’s decision to join or keep defendants in an action against whom the claim was ultimately unsuccessful against some of them, but where the action as a whole succeeded against one (or more) defendants. Two recent cases have provided useful guidance about the type of costs order which the court will be likely to make in such circumstances: see Jabang v Wadman and Woodland v Swimming Teachers Association.
Before looking at the cases in detail, it is worthwhile taking a journey back in time in order to understand how the courts have approached these issues historically.
First stop: Edwardian case law. In Sanderson v Blyth Theatre Company, Romer LJ expressed pithily why a successful defendant could not expect automatically to be entitled to costs from a claimant who had succeeded against another defendant in the same action:
“ … in my opinion, it [the court] has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and add those costs to his own to be paid by the defendant against whom the action has succeeded and whose conduct has necessitated the action.”
Romer LJ then referred to “the modern practice” namely :
“… to order the unsuccessful defendant to pay directly to the successful defendant his costs”.
Thus were born “Sanderson” orders.
Next stop. More Edwardian case law. In Bullock v The London General Omnibus Company, the court was concerned with a claim where the claimant had been injured in a collision between two vehicles, an omnibus and a cart. The statement of claim alleged negligence on the part of each for causing the injury but only the omnibus company was found liable. However, it was held that the negligence of that defendant was sufficient to negative any negligence on the part of the other defendant. It followed that the claimant would be ordered to pay the costs of the owner of the cart, but there would be an indemnity from the omnibus company for those costs.
Thus were born “Bullock” orders.
Which order was it appropriate to use? Where the claimant was insolvent or legally aided, a Sanderson order held the advantage, since that way, the claimant could be bypassed from the costs order. Otherwise, Bullock was the order of the day.
Fast forward a century and in Jabang and Woodland, we can see these orders at work in a modern context.
In Jabang, the claimant had become infected with spinal tuberculosis (TB). Prior to his diagnosis he had consulted several doctors. None had diagnosed TB as the cause of the severe upper back pain he had been suffering. When, eventually, he had been taken to hospital, the TB had progressed to a point where it could no longer be treated effectively. As a result, the claimant was rendered paraplegic.
In subsequent proceedings against various doctors and an NHS Trust, the claimant succeeded against the second defendant (D2) in respect of one (of two) consultations, failed against D3, D4 and D5, and discontinued against D1 (who did not feature in the subsequent argument about costs).
Before Nichol J, the issues were threefold:
- First, whether D2 should be ordered to pay or otherwise indemnify the claimant for the costs of the successful defendants, D3 and D4.
- Second, whether the claimant should be able to recover his own costs from D2 of unsuccessfully pursuing D3 and D4: that was thus an extension of the Sanderson and Bullock principles.
- Third, in respect of D5, where there was an additional complication that “innocent” D5 had been a doctor in the same practice as the “guilty” D2, whether D2 and not the claimant, should bear D5’s costs.
In reaching his decision, Nichol J drew on the judgment of Keene LJ in King v Zurich Insurance Company that:
“[W]here a plaintiff had behaved reasonably in suing both defendants, he should not normally end up paying costs to either party even though he succeeded only against one of the defendants”.
He further took the view that part of the purpose of a Bullock order was that a claimant’s victory ought not to be eroded if erosion would otherwise be the effect of a claimant having to meet the costs of any unsuccessful claims (see paragraph 15).
Other factors which weighed with Nichol J were whether, if a defendant had accepted responsibility at the outset, that would have avoided other defendants having to be joined, and also, the extent to which the defendants had blamed each other.
Taking these matters into account, the judge held that the justice of the situation lay in D2 not only being ordered to indemnify the claimant for the costs of the unsuccessful claims he had brought against D3 and D4 (a classic Bullock order), but also having to pay his costs of bringing his claims against those “innocent” defendants (an extension to a Bullock order).
As for D5, it had been D2 who had wanted her joined into the action. The claimant had not objected and, once joined, had brought a separate cause of action against her. It followed that, in principle, the claimant should have to pay D5’s costs, but the claim had been a reasonable one to bring. Bullock to the rescue again: D2 would indemnify the claimant for the costs which otherwise he would have to pay D5 out of his damages.
Next Woodland. The claimant had been tragically injured in a swimming pool accident in Basildon in 2000. Six years later, following what the trial judge, HHJ Pearce sitting as a Deputy High Court Judge, had described as having had “a complex procedural history” (something of an understatement since the case had gone to the Court of Appeal and Supreme Court!), the claimant recovered £1,999,999 damages from D3 (the life guard) and D4 (the local education authority), payable in the proportions one third and two thirds. Against D1 and D2, the claim had been discontinued so on the face of it, those defendants were entitled to their costs under CPR 38, as was the case against D5, its defence having succeeded.
At the subsequent hearing to decide who should pay what in costs, a failure to give notice of the application had meant that not all of the potential costs orders could be dealt with. Insofar as it was possible to do so, the issue for HHJ Pearce to address was whether the claimant could recover her own costs of suing D1 and D5 against whom she had discontinued, from D3 and D4. The costs (if any) which the claimant would have to pay to D1 and D5, was for another day.
To answer that question, the judge had to decide whether the claimant had been justified in commencing proceedings against the defendants in question in the first place. On the facts, a careful and proper analysis of the law would have revealed that D1 could not have been liable for the acts complained of, and, accordingly, it would be an injustice on D3 and D4 to make a “strong” order against them, requiring them to pay the claimant her costs of pursuing for D1 (see Irvine v Commissioner of Police). The claimant would have to meet those costs herself.
The position vis-à-vis D2 was different. On the facts, it had been reasonable for the claimant to have joined D2, the provider of the swimming lessons, into the claim and to have maintained it until the time of discontinuance. Accordingly, the claimant would recover the costs she had incurred in pursuing D2, from D3 and D4.
Both Jabang and Woodland illustrate something of an extension to the principles to be found in Sanderson and Bullock. Whilst the latter pair are concerned with whether the claimant should be absolved from paying costs to those defendant(s) against whom the claim has failed, either by an indemnity from the losing defendant(s) (Bullock), or via a direct costs order (Sanderson), the former pair indicate that the court, in appropriate circumstances, will go further and direct that the losing defendant(s) also pays the claimant’s own costs of pursuing the “winning” defendant(s).
The lesson to be taken from all four cases is that the claimant must have acted reasonably and, before adopting a scattergun approach, thought should be given to the costs consequences. If the claimant subsequently succeeds against some defendants but fails against others, the pot of gold that are the damages will be seriously eroded unless it can be shown that the claim has been reasonably brought. In deciding whether that was so, factors such as being unclear as to identity of the tortfeasors or whether the defendants blamed each other (for example, in an accident claim, each defendant claimed the other was driving the offending vehicle), or whether an early admission of liability would have eliminated the need to join other defendants into the action, will be highly relevant. In addition, where a claimant has discontinued, the timing of the discontinuance (could it have been discontinued earlier?), as well as the reason for doing so, will be important.
All in a day’s work for a claimant lawyer, who now has not only Sanderson and Bullock orders at their disposal, but now also Jabang and Woodland orders, in the event that the client wins overall, but not against every defendant joined into the action.
