Whitney v Monster Worldwide Ltd & Anor

A claimant who discontinues is ordinarily liable for the defendant’s costs under Civil Procedure Rules 1998, rule 38.6. The burden lies on the claimant to show a good reason for departing from that consequence. A change arising from disclosure, a reassessment of the merits, or litigation decisions that remain part of the ordinary process will usually not suffice. A Bullock order requires consideration of the claimant’s reasonableness in joining and pursuing the additional defendant, the connection between the claims, whether the claims are alternative, and whether one defendant blamed or invited proceedings against the other. The jurisdiction may permit a partial indemnity, but it is exceptional. Late disclosure does not justify such an order where the defendant made a reasonable search and complied with its continuing disclosure duty.

The claimant had brought pension-related proceedings against his former employer. He later obtained permission to join the trustees of a pension scheme after identifying a possible claim concerning surplus funds and an alleged trust supporting a pension guarantee.

The claimant subsequently discontinued against the trustees after disclosure, negotiations and reassessment of the claim. He sought an order relieving him from the trustees’ costs and an indemnity from the employer, in substance a Bullock order. The issues were whether there was good reason to depart from the ordinary costs consequence of discontinuance, whether the employer’s disclosure justified such departure, and whether the circumstances warranted a Bullock order.

1. Discontinuance. Under Civil Procedure Rules 1998, rule 38.6, the ordinary order is that the discontinuing claimant pays the defendant’s costs. The claimant bears the burden of establishing a good reason for departure. The court must consider all the circumstances under rule 44.3, but the possibility that the claim might have succeeded, a commercial or pragmatic decision to discontinue, or a change in prospects caused by ordinary disclosure will generally be insufficient.
2. The claim against the trustees was speculative and weak, although not initially shown to be hopeless. The claimant should have investigated the value of the surplus and the strength of the claim before joining the trustees, and should have sought to withdraw earlier when disclosure weakened the case. The later disclosure made the claim impossible, but it did not create a sufficient reason to alter the ordinary costs order. The claimant was therefore ordered to pay the trustees’ costs to the date of discontinuance on the standard basis.
3. A Bullock order is governed by the principles identified in Irvine v Commissioner of Police and Moon v Garrett. Relevant considerations include whether it was reasonable to join and pursue the unsuccessful defendant, whether the causes of action are connected, whether the claims are alternative, and whether one defendant blamed or invited proceedings against the other. Those criteria were not satisfied. The claims against the employer and trustees were independent, were not pleaded in the alternative, and the employer had opposed joinder.
4. The court accepted that a partial Bullock order could in principle be made. However, the employer had not breached its disclosure obligation under rule 31.7. The searches were reasonable, the documents were disclosed as part of the continuing duty, and their late discovery during settlement negotiations was an ordinary changing circumstance of litigation. No indemnity was ordered against the employer.