Fouladi v Darout Ltd & Ors

Orders requiring one defendant to pay the costs incurred by a claimant against another defendant are not confined to negligence or personal injury cases, or to cases where the claimant is uncertain which defendant is liable. They fall within the court’s general discretion as to costs and depend on what is just in all the circumstances.

The court should consider the reasonableness of joining the defendants, whether their cases are bound up together, whether one defendant blamed another, and the conduct of the proceedings as a whole. An appellate court should rarely interfere with such a multi-factorial costs evaluation, particularly where the first-instance judge had a fuller view of the litigation.

The claimant brought noise nuisance and related claims against the tenant owner and occupiers of a flat, and against the landlord. Following trial, HHJ Parfitt found liability against the first to third defendants but not against the fourth defendant. He made a Bullock order requiring the first to third defendants to meet the claimant’s liability for the fourth defendant’s costs and the claimant’s costs of that claim.

Morgan J dismissed nine grounds of appeal and adjourned ground 10. The claimant also sought a Bullock order for the costs of her unsuccessful appeal. The issues were whether the first Bullock order involved an appealable error and whether a Bullock order should be made in respect of the claimant’s own appeal.

1. The appeal on ground 10 was dismissed. The court’s jurisdiction to make Bullock or Sanderson orders is part of the general costs discretion under CPR rule 44.2. It is not restricted to negligence or personal injury cases, or to cases involving uncertainty about which defendant should be sued.

2. The relevant question is whether the order is just and appropriate in all the circumstances. Relevant considerations include the reasonableness of joining both defendants, whether the claims are bound up with each other, whether one defendant sought to blame the other, and the conduct of the parties before and during the proceedings. The trial judge was entitled, and obliged, to stand back and assess the overall position.

3. The first-instance judge’s conclusion was within the reasonable ambit of his discretion. The first to third defendants had blamed the fourth defendant and had made allegations which made it reasonable for the claimant to join the fourth defendant. The appellate court could not recreate the trial judge’s fuller understanding of the conduct and progress of the case.

4. Costs appeals are particularly difficult. Intervention requires an error of law or a conclusion outside the generous ambit of the discretion. The decision also involved a multi-factorial evaluation, with which an appellate court should not interfere absent compelling justification.

5. The claimant’s application for a Bullock order concerning her own appeal was refused. She had chosen to bring a protective appeal, but the appeal was unsuccessful and the reasoning below was available to her. The ordinary rule that costs follow the event therefore applied, as determined by Morgan J.

• High Court (Chancery Division), Chancery Appeals: HHJ Parfitt’s order of 3 May 2018 followed a lengthy trial concerning noise nuisance and costs.
• High Court: Morgan J dismissed nine grounds of appeal on 19 December 2018 and adjourned ground 10.
• High Court (Chancery Division): The appeal on ground 10 was dismissed and the claimant’s application for a Bullock order in respect of her own appeal was refused.