Cartwright v Venduct Engineering Ltd

Under CPR r 44.14(1), a costs order against a personal-injury claimant may be enforced by one defendant against damages and interest ordered to be paid to that claimant by another defendant in the same proceedings. The rule imposes an aggregate monetary cap; it does not require the damages order to have been made against the defendant enforcing costs.

However, a sum payable under a Tomlin order is not an order for damages and interest made in the claimant’s favour. The scheduled settlement is contractual, not curial. CPR r 44.14(1) does not extend to Tomlin-order or other agreed settlements, particularly where confidentiality and unapportioned global sums would require machinery absent from the rule.

The claimant brought a noise-induced hearing-loss claim against six defendants. He discontinued against Venduct Engineering Ltd, which thereby obtained a costs entitlement. He had settled his claims against three other defendants for £20,000 under a Tomlin order expressed to cover damages, costs, interest and other matters.

The Regional Costs Judge held that, in principle, a defendant could enforce costs by reference to damages and interest ordered against another defendant, but could not do so from the Tomlin-order sum. Venduct brought a leap-frog appeal on the latter point. The claimant’s respondent’s notice challenged the former. The central questions were whether CPR r 44.14(1) permits cross-defendant enforcement and whether a Tomlin-order settlement supplies the required order for damages and interest.

1. Both the appeal and the respondent’s principal argument were dismissed. The court upheld the Costs Judge’s conclusions on both issues.
2. CPR r 44.14(1) applies to a single personal-injury claim against one or more defendants. Its language draws no link between the defendant holding the costs order and the defendant liable under the damages and interest order. Thus, where defendant A is ordered to pay damages and interest and defendant B obtains an adverse costs order, B may enforce up to the aggregate monetary amount of the damages and interest order.
3. That construction accords with the purpose of QOWCS. It protects personal-injury claimants against a net liability, but does not immunise them from an enforceable costs order where the rule’s monetary fund exists. A contrary construction would permit unsupported claims against additional defendants without the ordinary restraint of a costs liability.
4. A Tomlin order is not an order for damages and interest within CPR r 44.14(1). Its curial part stays proceedings, but its schedule records the parties’ agreement and is not an order of the court. A settlement following acceptance of a Part 36 offer is likewise outside the rule’s wording.
5. The proposed wider construction could not be adopted by interpretation. It would require a mechanism for disclosure of confidential schedules and for identifying damages and interest within a global or non-monetary settlement. Those matters call for rule-making, not judicial amendment of the CPR.

• Court of Appeal (Civil Division): Venduct’s leap-frog appeal was dismissed. The court upheld the Costs Judge’s rulings that cross-defendant enforcement is possible in principle under CPR r 44.14(1), but that a Tomlin-order settlement is outside that rule: [2018] EWCA Civ 1654.
• Leicester County Court: Regional Costs Judge Hale held that a defendant could in principle enforce costs by reference to damages and interest ordered against another defendant, but not against sums payable under the Tomlin order.