Irvine v Commissioner of Police for the Metropolis & Ors

The jurisdiction to make a Bullock or Sanderson costs order survives under the Civil Procedure Rules, but remains discretionary. Reasonable joinder of several defendants does not compel such an order.

The ordinary case involves genuinely alternative claims arising from connected causes of action. The court must consider whether the claimant acted reasonably in joining and pursuing each unsuccessful claim, and whether transferring the successful defendants’ costs would cause injustice to the unsuccessful defendant. Another defendant’s attempt to shift blame does not by itself make joinder reasonable.

A police officer recovered damages from the Metropolitan Police Commissioner for breach of statutory duty after tripping on defective stair carpeting at his workplace. His negligence claims against the Commissioner, the property manager and a flooring contractor failed. The High Court ordered him to pay the costs of the two successful defendants and refused a Bullock or Sanderson order transferring those costs to the Commissioner.

The claimant appealed against the costs order. The central issue was whether the judge had properly exercised her discretion, particularly when assessing whether it had been reasonable to join and pursue claims against the successful defendants.

1. Appeal dismissed. The High Court had been entitled to require the claimant to pay the second and third defendants’ costs. No error permitting appellate interference with that discretionary decision had been established.

2. The jurisdiction to make Bullock and Sanderson orders survived the introduction of the Civil Procedure Rules. It must be exercised consistently with the overriding objective and Rule 44.3. A Bullock order permits the claimant to recover a successful defendant’s costs from the unsuccessful defendant. A Sanderson order requires the unsuccessful defendant to pay those costs directly.

3. The orders protect a claimant who reasonably joins defendants because it is uncertain which of them is responsible. They are nevertheless strong orders because they impose on the unsuccessful defendant both the claimant’s costs and the costs of defendants whom the claimant chose to sue unsuccessfully. Even reasonable joinder creates no rule of law requiring such an order.

4. The ordinary case involves claims made genuinely in the alternative. Whether the causes of action against the defendants are connected is also relevant, although not necessarily decisive. The court must consider the reasonableness of the claimant’s conduct in joining and continuing the unsuccessful claims. One defendant’s attempt to blame another is a significant consideration, but cannot by itself justify joinder at that defendant’s expense.

5. The claim against the property manager was neither pleaded in the alternative nor properly particularised. It rested on a cause of action different from the statutory claim that succeeded. The claimant pursued it to judgment without establishing a sustainable basis for liability.

6. The later-particularised negligence claim against the flooring contractor likewise depended on facts separate from the successful statutory claim. There was no cogent evidence of negligent repair, inadequate materials or the cause of the carpet’s failure. The judge was entitled to infer that joining and pursuing both unsuccessful defendants had been unreasonable.

• Court of Appeal (Civil Division): The court unanimously dismissed the costs appeal and affirmed the order requiring the claimant to pay the successful second and third defendants’ costs: [2005] EWCA Civ 129.
• High Court, Queen’s Bench Division: Her Honour Judge Kirkham, sitting as a deputy High Court judge, upheld the claim against the Commissioner under regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992, dismissed the remaining claims and refused a Bullock or Sanderson costs order. No citation is stated.