Oberholster v Little & Anor

When substantive proceedings settle but costs remain unresolved, the court may determine costs summarily if the parties agree, using a broad-brush assessment of the apparent merits and the justice of the case. The court need not decide which party would have won at trial or resolve disputed facts. The fallback position is no order as to costs, but another order may be justified where the material indicates that one party’s case was materially weaker. An appellate court should interfere only for an error of principle, failure to consider a material matter, or a plainly unsustainable decision. Where no liability trial has occurred, a party is not necessarily the successful party, and Bullock or Sanderson orders may be inappropriate.

The claimant brought proceedings arising from elective ophthalmic surgery against Optical Express Limited and related companies and against the ophthalmic surgeon who performed the surgery. Optical Express Limited accepted a Part 36 offer, settling the substantive claim, but the surgeon neither admitted liability nor agreed the costs position. The remaining issue was whether the claimant or the surgeon should bear the costs between them, and whether the surgeon could obtain a Bullock or Sanderson order against Optical Express Limited.

The Central London County Court determined the issue summarily and ordered the surgeon to pay the claimant’s costs. The surgeon appealed, contending that he had been deprived of a trial and should be treated as the successful party, or that there should be no order as to costs.

1. The appeal was dismissed. The first-instance judge had acted within the wide discretion applicable to costs following settlement where the substantive dispute had not been tried.
2. The parties had agreed to a summary determination rather than a trial of the remaining costs issue. They therefore accepted the risks of a broad-brush assessment. The judge was entitled to consider the pleadings, agreed expert evidence and the apparent merits without resolving disputed facts.
3. The claims against Optical Express Limited and the surgeon were sufficiently linked. The evidence indicated that the ophthalmic surgeon retained ultimate personal responsibility for ensuring informed consent, even if parts of the consent process were delegated. The surgeon’s pleaded reliance on Optical Express’s process meant that, if that process had failed and the surgeon had not independently obtained consent, his position would have been difficult.
4. The acceptance of the Part 36 offer did not establish that Optical Express Limited was the unsuccessful party, nor that the surgeon was successful against the claimant. Without a liability determination, a Bullock or Sanderson order would have been unprincipled and unjustified.
5. No separate requirement of “manifest injustice” was decided. Assuming that no such additional requirement existed, the decision was not wrong; if it did exist, it was not satisfied. The possibility of contribution proceedings was a permissible consideration but was not the primary basis for the costs order.
6. The judge’s order that the surgeon pay the claimant’s costs was within the generous ambit of discretion and involved no error of principle.

• High Court (Queen’s Bench Division): Appeal from an order made on 14 January 2020 by HH Judge Roberts in the Central London County Court. The appeal was dismissed.