Robert Mills, instructed by Irwin Mitchell, has been successful in obtaining an award for a Bullock costs order in a clinical negligence trial. Robert represented the Claimant at trial in the matter of ES v H (1) and S(2) [2024] at the County Court at Birmingham before His Honour Judge Najib. The claim succeeded against the First Defendant but not against the Second Defendant. The court was asked to determine the appropriate costs order, with the First Defendant arguing that the Claimant should pay the Second Defendant’s costs of the action and the Claimant arguing that a Bullock order, whereby the First Defendant indemnify the Claimant for the Second Defendant’s costs, was the more appropriate.
On 15 November 2024 the judge found in favour of the Claimant and made a Bullock Type order, meaning that the Claimant was able to keep the entirety of her damages award and the losing Defendant would pay the costs of the winning Defendant. The judge found that it was appropriate to displace the usual rule under CPR 44.2(2)(a) that the unsuccessful party pay the costs of the successful party. The court applied the principles set out in Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 that:
- The Court has a discretion to order the unsuccessful defendant to pay the successful defendant’s costs.
- This may be done in one of two ways: either (i) by way of a “Sanderson” Order (ordering the unsuccessful defendant to pay costs directly to the successful defendant), or (ii) by way of a “Bullock” Order (ordering the claimant to pay the successful defendant’s costs, and then permitting the claimant to add them to the costs ordered to be paid to him by the unsuccessful defendant).
- However, neither order is appropriate in favour of a claimant who has sued more than one defendant where the causes of action against each are quite distinct, or where the respective claims are not alternative, or are based on quite distinct sets of facts.
- The matters which were relevant to (although not exhaustively determinative of) the exercise of the discretion included
(i) most importantly, whether it had been reasonable for the claimant to pursue the successful defendant;
(ii) the connection (if any) between the causes of action advanced against the respective defendants);
(iii) whether the claims were made in the alternative (that being the scenario at which a “Sanderson” Order is primarily directed; although the fact that the claims were not truly alternatives does not preclude the court from ordering D1 to pay D2’s costs);
(iv) the success or otherwise of the claimant; and
(v) whether one defendant had blamed another.
The judge also deemed the commentary by Waller LJ in Moon v Garrett [2006] EWCA Civ 1121 to be relevant:
“It seems to me that … there are no hard and fast rules as to when it is appropriate to make a Bullock or Sanderson Order. The Court takes into account the fact that, if a Claimant has behaved reasonably in suing two Defendants, it would be harsh if he ends up paying the costs of the Defendant against whom he has not succeeded. Equally, if it was not reasonable to join one Defendant because the cause of action was practically unsustainable, it would be unjust to make a Co-Defendant pay those Defendants’ costs. Those costs should be paid by a Claimant. It will always be a factor where one Defendant has sought to blame another.
The fact that cases were in the alternative so far as they are made against two Defendants would be material, but the fact that claims were not truly alternative does not mean that the Court does not have the power to order one Defendant to pay the costs of another. The question of who should pay whose costs is peculiarly one for the discretion of the Trial Judge.”
HHJ Najib concluded that the Claimant had not acted unreasonably in bringing the claim against both the First and Second Defendants. It was not a scattergun approach. Both claims had been supported by expert evidence. It was right to say that the claims were not brought in the alternative, nor were they based on exactly the same issues, although there was some overlap. The judge deemed relevant the fact that the First Defendant, in their Defence, reserved the right to argue at trial that the Second Defendant’s actions had broken the chain of causation from any negligence established on their part. This position was never converted to a positive pleaded assertion, but the First Defendant did go on to obtain their own causation evidence and cross-examined the Second Defendant’s expert witness at trial. The judge held that it was relevant that although the First Defendant did not explicitly blame the Second Defendant, in reserving the right to argue that the chain of causation was broken, this was akin to reserving the right to blame the other Defendant. The chain of causation would only be broken by negligent treatment on the part of the Second Defendant. The judge therefore accepted that from this point, the First Defendant also had a role in keeping the Second Defendant in the litigation and in all the circumstances reached the conclusion that the interests of justice pointed in favour of displacing the normal cost rule and making a Bullock order.
This is a positive result for Claimants in the clinical negligence field generally and illustrates that practitioners should keep the mechanism of a Bullock order in mind to avoid the risk of a successful Defendant reducing or eliminating a Claimant’s hard won damages. Defendants must recognise the risk that if they choose to challenge part of a co-defendant’s case then they run the risk of being found to bear responsibility for their costs, if unsuccessful at trial.
