Peter Gibson LJ said: ‘There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3 [now rule 44.2]. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant’s costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed.
The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v AandR Brown Ltd [1948] 1 KB 515). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed.
The circumstances in which the court makes an order are stated in the White Book 2004, paragraph 44.3.8 as follows: ‘Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant’s costs’.
. . Such is the width of the language of Rule 44.3(1) [now rule 44.2(1)] that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order . .
A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other . .
An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant’s conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed . . .’
Judges:
Lord Justice Peter Gibson Lord Justice Jacob Lord Justice Scott Baker
Citations:
[2005] EWCA Civ 129, [2005] 3 Costs LR 380, [2005] CP Rep 19
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Sanderson v Blyth Theatre Company CA 1903
Where a party sues two or more defendants and succeeds against one but fails against one or more other defendants, the court has a discretion to order the unsuccessful defendant to pay the costs of the claimant in pursuing the successful defendant . .
Cited – Bullock v London General Omnibus Company 1907
An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant. The plaintiff had been unable . .
Cited by:
Cited – Davies v Forrett and Others QBD 23-Jun-2015
The claimant had been very severely injured as a passenger in a car (uninsured) which had attempted an overtaking manouvre past three cars. One pulled out, and the car in which he was a passenger swerved off the road and crashed. Damages were now . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 29 June 2022; Ref: scu.223305