Whitehead & Anor v Barrie Searle Hibbert Downall & Newton (a firm)

The court has a broad discretion over costs. Although costs usually follow the event, the court may make an issue-based order after considering the substance of the result, the issues on which each party succeeded, the parties’ conduct, and the reasonableness of pursuing particular claims.

Bullock and Sanderson orders remain available under the Civil Procedure Rules, but are generally appropriate where a claimant reasonably does not know which defendant is responsible. They are inappropriate where both defendants successfully defend a substantial part of the claim. A qualified order may also be inconsistent with the objective of CPR 44.3.

After judgment has been handed down, a court should make a material alteration only in exceptional circumstances, such as a palpable error or a necessary correction in the interests of justice.

The first claimant, as administrator of Paula McLeish’s estate, had obtained judgment against the second defendant for £118,829 following an earlier judgment. The court had found that the estate’s claim had been negligently under-settled, while the claimants’ personal claims against both defendants had failed.

At the adjourned hearing, the second defendant sought additional findings about apportionment of liability and the proper value of the underlying claim. The parties also sought competing costs orders, including Bullock, Sanderson and issue-based orders. The court had to determine whether the earlier judgment should be supplemented, how the costs of the successful and unsuccessful claims should be allocated, and whether permission to appeal should be granted.

1. Additional findings. The court refused to add findings apportioning liability between the defendants or revisiting the value of the underlying claim. Once judgment has been handed down, the court should hesitate before making a material alteration. The requested findings were unnecessary, had not been sought when the issues were fresh, and appeared principally intended to assist possible contribution proceedings. Judgment therefore remained against the second defendant for £118,829.
2. Costs discretion. Under CPR 44.3, costs are discretionary. The general rule that the unsuccessful party pays the successful party does not prevent an order based on particular issues. The court may consider pre-action and litigation conduct, the reasonableness of raising or pursuing issues, exaggerated claims, offers, payments into court and the substance of the result.
3. Bullock and Sanderson orders. The jurisdiction survived the introduction of the CPR. It is ordinarily appropriate where a claimant reasonably cannot identify which of several defendants is at fault. It was inappropriate here because both defendants had successfully defended a substantial part of the claims, including the personal claims, which had not been reasonably brought. A qualified Bullock or Sanderson order would also be inconsistent with the objective of CPR 44.3.
4. Application to the claims. The estate’s primary claim and its alternative claim concerning the undervalued settlement were properly brought. The personal claims were not. The court nevertheless declined to order costs against the legally aided claimants because the defendants’ conduct, including failures in the underlying professional work and the failure to accept responsibility, made such an order unjust and practically ineffective. The first and second defendants were ordered to pay 75% of the first claimant’s costs of the alternative undervalue claim. The second defendant was ordered to pay the costs of the primary claim.
5. Permission to appeal. Permission to appeal both the judgment and the costs order was refused. The costs order was discretionary, and the proposed grounds disclosed no sufficient basis for permission under CPR 52.3(6).

The judgment records an earlier High Court judgment in which the first claimant succeeded in his representative capacity against the second defendant. The present judgment determined consequential applications concerning additional findings, costs and permission to appeal.