Jabang v Wadman & Ors

Costs are a matter for the court’s discretion. Although the unsuccessful party will ordinarily pay the successful party’s costs, an issue-based reduction is not mandatory and may be inappropriate where the unsuccessful issue occupied only a minimal part of the litigation.

A Bullock order may be made where claims against several defendants were reasonably brought, even though the claims were not genuinely alternative and the claimant knew, or could have known, which defendant was primarily responsible. The court must assess all the circumstances, including the reasonableness of joining and pursuing each defendant, the extent of each party’s success, any allocation of blame, and the overriding objective.

The claimant succeeded in negligence against the second defendant, but his claims against the third, fourth and fifth defendants failed. The court had already determined the substantive claim in [2017] EWHC 1894 (QB).

The costs judgment concerned whether the second defendant should pay all the claimant’s costs, indemnify him for the costs payable to the successful defendants, and pay the claimant’s own costs of pursuing those unsuccessful claims. It also concerned the effect of a short settlement offer made by the fifth defendant.

1. Costs of the claim against the second defendant. Under Civil Procedure Rules 1998, r 44.2, the court has a discretion as to whether costs are payable and in what amount. The claimant was the successful party against the second defendant. Although he failed on one allegation, relating to 28 October 2011, that issue occupied only a minimal proportion of the litigation and was difficult to separate from the successful allegation. An issue-based reduction was therefore unjustified. The second defendant was ordered to pay all the claimant’s costs of his claim against him.
2. Bullock order. The discretion under the CPR remains wide enough to make a Bullock order. The restrictive statement in Whitehead, David McLeish v Barrie Searle, Hibbert Downall and Newton (a firm) was inconsistent with the more flexible approach in Moon v Garrett. A Bullock order is not confined to genuinely alternative claims or cases where the claimant does not know which party is at fault.
3. The relevant considerations included whether the claims against the successful defendants were reasonably brought, whether the claims were genuinely alternative, whether one defendant had blamed another, the relative significance of the defendants’ conduct, and the fairness of the result under the overriding objective. The claims against the third and fourth defendants were reasonably brought. The second defendant’s earlier negligence and failure to accept responsibility materially contributed to the litigation. It was therefore fair for him ultimately to bear their costs.
4. The same reasoning meant that the second defendant should pay the claimant’s own costs of pursuing the unsuccessful claims against the third and fourth defendants. Otherwise the claimant’s successful recovery would be eroded.
5. The claim against the fifth defendant was reasonably brought, but it failed. The claimant was therefore prima facie liable for her costs, subject to indemnification by the second defendant. A settlement offer open for less than 31 hours carried insufficient weight. The final order required the claimant to pay the third, fourth and fifth defendants’ costs, with the second defendant indemnifying him.

The substantive claim had been determined by the same court in [2017] EWHC 1894 (QB). This judgment determined the consequential costs issues.