Choi v Park & Anor

The discretion to make a Sanderson order is governed by all the circumstances and the overriding objective. The court should first consider whether it was reasonable for the claimant to bring and pursue the claim against the successful defendant. Relevant matters include uncertainty about that defendant’s involvement, the evidential basis for the claim, the parties’ positions, and the prospects of success at the relevant stages. If the claim was unreasonable, a Sanderson order should not be made. Even where the claim was reasonably brought, the court must separately consider whether it would be unjust for the unsuccessful defendant to bear the successful defendant’s costs.

Following a trial, the claimant succeeded in a misrepresentation claim against the first defendant and recovered £91,532.52. His unlawful means conspiracy claim against both defendants failed, so the claim against the second defendant failed entirely. The claimant sought a Sanderson order requiring the first defendant to pay the second defendant’s costs. The application raised whether it had been reasonable to bring and pursue the claim against the second defendant and, if so, whether it would nevertheless be unjust for the first defendant to bear those costs.

1. Application refused. The claimant was liable for the second defendant’s costs and his own costs of pursuing the claim against her. The first defendant was liable for the claimant’s costs of pursuing the successful misrepresentation claim against him and for his own costs of defending the case.
2. The court’s discretion under CPR 44.2 had to be exercised in accordance with the overriding objective under CPR 1.1, having regard to all the circumstances, including the conduct of the parties, the issues on which they succeeded, and the reasonableness of raising and pursuing the claim.
3. The court adopted a two-stage approach derived from the authorities, including British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd [2012] EWHC 3679 (Ch) and Moon v Garrett [2006] EWCA Civ 1121: first, whether it was reasonable to bring and pursue the claim against the successful defendant; and secondly, whether it would nevertheless be unjust for the unsuccessful defendant to bear that defendant’s costs.
4. It was not reasonable to bring or pursue the claim against the second defendant. The claimant knew that the first defendant alone had made the alleged false statements. Payment into the second defendant’s bank account was insufficient, without more, to support the conspiracy claim. There was no evidence that she knew the representations were false or agreed that they should be made. The evidential hurdle was high, and the claim remained weak after the defence was served. The defendants had also not blamed each other.
5. Alternatively, even if the claim had been reasonably brought and pursued, it would have been unjust to require the first defendant to pay the second defendant’s costs. The claim was weak, the defendants had not advanced conflicting accounts, and the defence responses concerning the second defendant had proved factually correct. Making the order would penalise the first defendant for being proved right.
6. A money judgment was entered for the claimant against the first defendant in the sum of £91,532.52, with detailed assessment of costs.

The judgment concerned costs following the substantive judgment in [2019] EWHC 3191 (QB). No appeal was described.