McDermott v Inhealth Ltd

A Bullock or Sanderson costs order may be appropriate where claims against several defendants are sufficiently linked, even though they are not strictly alternative claims and one defendant’s liability arises from a separate breach. The absence of express mutual blame is not fatal, although blame remains relevant. The court should consider the claimant’s reasonableness, whether the defendants blame one another, whether the claims are alternatives, and whether they are independent. Claims are not “perfectly independent” merely because they arise from different breaches if they concern the same injury, involve a common defendant, and the defendants rely on related matters in resisting liability.

The claimant brought a personal injury action arising from the failure to identify a brain aneurysm during boxing-licensing imaging. He sued the consultant neuroradiologist, the imaging provider and the hospital trust. The imaging provider later admitted liability on a protocol claim, and the claimant discontinued his claims against the other defendants.

The district judge made a limited Bullock order, requiring the imaging provider to pay certain costs incurred after 1 December 2016, but treated the protocol claim as independent from the claims concerning the handling and reporting of the scans. The claimant appealed against that limitation. The central issue was whether the claims were sufficiently connected to justify an order requiring the admitting defendant to bear the claimant’s costs against the other defendants.

1. Appeal allowed. Permission to appeal was granted. The order was varied so that InHealth Limited was required to pay all costs which the claimant was liable to pay to the first defendant and all of the claimant’s own non-generic costs of the action against the first and third defendants.
2. The appeal was governed by CPR 52.20(1) and (3). The court could interfere with the costs discretion only where the decision was wrong or unjust because of a serious procedural or other irregularity. The principles concerning appellate intervention in a discretionary costs decision, stated in Adamson v Halifax Plc [2003] 1 W.L.R. 60, were accepted.
3. The jurisdiction to make a Bullock or Sanderson order is intended to prevent a reasonable claimant from losing the benefit of damages through liability for the costs of pursuing another defendant. It is a strong jurisdiction and may cause injustice to the defendant against whom liability is established. The relevant considerations include the claimant’s reasonableness, whether the defendants blame one another, whether the claims are alternatives, and whether they are independent. The principles in Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 were applied.
4. Mutual blame is not a necessary condition of a Bullock order, although it remains relevant, as illustrated by Besterman v British Motor Cab Co Ltd [1914] 3 K.B. 181. Nor is the possibility that two defendants might both be liable an automatic bar where one defendant admits liability before trial. The approach in Moon v Garrett [2006] EWDA Civ 1121 supported that conclusion.
5. The district judge had erred in treating the protocol claim as a perfectly independent cause of action in the sense discussed in Mulready v JH & W Bell Ltd [1953] 2 All ER 215. The claims had a sufficient connection: InHealth was a defendant to both; both concerned responsibility for the failure to identify the aneurysm by a GE scan; the protocol was relied on by the other defendants in resisting the scans claims; and InHealth sought to blame the other defendants. It was therefore appropriate for InHealth to bear the relevant costs in full.

1. High Court (Queen’s Bench Division): The claimant was granted permission to appeal and the appeal against the district judge’s costs order was allowed. The limited time period was removed.