Pa Abubacarr Jabang v (2) Dr Simon Wadman and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWHC 1993 (QB) |
| Date | 31 July 2017 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14CO3775 |
[2017] EWHC 1993 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ14CO3775
Mr D. Westcott QC and Mr R. Cartwright (instructed by Irwin Mitchell) for the Claimant
Mr S. Readhead QC and Joshua Munro (instructed by Brachers) for the 2 nd and 5 th Defendants
Hearing date: 24 th July 2017
Decision on Costs
I handed down judgment in this matter on 24 th July 2017 – [2017] EWHC 1894 (QB)– 'the substantive judgment'. The background to the case is set out in the substantive judgment and is not repeated here. The Claimant succeeded in his claim against the 2 nd Defendant and, as against him, there will need to be an assessment of damages. The claims against the 3 rd, 4 th, and 5 th Defendants were unsuccessful. Shortly before trial the Claimant had discontinued his claim against the 1 st Defendant and, accordingly, my substantive judgment did not concern it.
The Claimant accepted that he should be ordered to pay the costs of the 3 rd and 4 th Defendants (although, as will be seen, he sought an indemnity for that liability from 2 nd Defendant). The 2 nd Defendant accepted that he would have to pay at least most of the Claimant's costs of his claim against the 2 nd Defendant. However, there was disagreement as between the Claimant on the one hand and the 2 nd and 5 th Defendants on the other as to the following issues:
i) Whether the 2 nd Defendant should have to pay all of the Claimant's costs of his claim against him or whether there should be a reduction to reflect the fact that, while I found that the 2 nd Defendant had been negligent on 5 th October 2011, I rejected the claim that the 2 nd Defendant had also been negligent on 28 th October 2011.
ii) Whether the 2 nd Defendant should have to indemnify the Claimant for his liability to pay the costs of the 3 rd and 4 th Defendant — whether a Bullock order should be made in the Claimant's favour — see Bullock v The London General Omnibus Company [1907] 1 KB 264.
iii) Whether the Claimant should be able to recover from the 2 nd Defendant his own costs incurred in making his unsuccessful claims against the 3 rd and 4 th Defendants.
iv) What orders in principle should be made regarding the 5 th Defendant's costs and the Claimant's costs of pursuing his unsuccessful claim against the 5 th Defendant. The complication here is that the 2 nd and 5 th Defendants were partners in the same General Practice, the Heathfield Practice. They were represented at trial by the same solicitors and counsel. So far as these matters were concerned I was asked to give a decision in principle, allowing Mr Readhead QC and Mr Munro (as well as Mr Westcott QC) the opportunity to consider how such a decision could be practically and expressed in a court order.
Whether the 2 nd Defendant should have to pay only a proportion of the Claimant's costs of pursuing the claim against him?
The Court, of course has a discretion as whether costs are payable by one party to another and the amount of any such costs – see CPR r.44.2.
The starting point is the general rule that the unsuccessful party will be ordered to pay the costs of the successful party – CPR r.44.2(2)(a). There is no dispute that, as between the Claimant and the 2 nd Defendant, the Claimant was the successful party.
I recognise, as well that the rules expressly allow the Court to make some other order – r.44.2(2)(b). One of the matters which the Court must take into account is whether a party has succeeded on part of its case, even if that party has not been wholly successful – r.44.2(4)(b). In this case, Mr Readhead is right to say that the Claimant was not successful in his allegation that the 2 nd Defendant had been negligent on 28 th October 2011 as well as on 5 th October 2011 – see substantive judgment [140].
Although it is possible to make a costs order by reference to the costs incurred on particular issues – see r.44.2(6)(f), the Court is encouraged to consider instead ordering a party to pay a particular part of the successful party's costs — see r.44.2(6)(a) and r.44.2(7). Mr Readhead argues that, of the time taken up with the claim against the 2 nd Defendant, about one third was concerned with the allegation of his negligence on 28 th October 2011. Accordingly, he argues, the 2 nd Defendant should be ordered to pay only 70% of the Claimant's costs of pursuing his claim against the 2 nd Defendant. He refers me to the discussion at paragraph 44.2.7 in the 2017 edition of the White Book.
In my judgment, Mr Westcott was right to say that the proportion of time on the allegation relating to 28 th October was far less than 1/3 rd of the time spent on the Claimant's case against the 2 nd Defendant as a whole. Although not negligible, it occupied a minimal proportion of the time spent on the Claimant's claim against the 2 nd Defendant. It is right that answers provided by the physiotherapist in May 2016 showed that Dr Wadman had not misunderstood her telephone message as to her request for the Claimant to be further x-rayed (see [138] of the substantive judgment), but a second part of the allegation of negligence on 28 th October 2011 was difficult to separate out from the allegation relating to 5 th October (see substantive judgment [139]). Ms Thompson provided two witness statements and gave oral evidence, but both her statements and her testimony covered much wider ground than her telephone call on 28 th October 2011.
As the notes in the White Book make clear, an issue based order is not mandatory and, in my view, the costs exclusively referable to the issue on which the Claimant failed as against the 2 nd Defendant were too small a proportion of the total costs of the claim against the 2 nd Defendant to warrant such a division in this case.
Accordingly, I conclude that the 2 nd Defendant must pay all of the Claimant's costs of his claim against the 2 nd Defendant.
Whether there should be a Bullock order in favour of the Claimant to indemnify him for the costs of the 3 rd and 4 th Defendants?
The general rule in r.44.2(2)(a) means that the 2 nd Defendant has to pay the Claimant's costs (of the case against him), not that he should also have to bear the costs of the other defendants against whom the Claimant did not succeed. The genesis of Bullock orders long pre-dated the Civil Procedure Rules but it is clear and Mr Munro (who argued this aspect on behalf of the 2 nd Defendant) did not dispute that the Court's discretion under the CPR is wide enough to allow such orders still to be made.
As Keene LJ said in King v Zurich Insurance Company [2002] EWCA Civ 598 at [33],
'The judge had to deal with a not uncommon situation where a claimant was unsure which of the defendants would be liable for his injury and where – in the event — he succeeded against one but failed against the other. In the days before the Civil Procedure Rules came into effect this situation would often be met by a Bullock order … ordering the plaintiff to pay the successful defendant's costs but ordering the unsuccessful defendant to pay those costs over to the plaintiff. In cases where the plaintiff was legally aided the order would often court be a Sanderson order…. whereby the unsuccessful defendant was ordered to pay the costs of the successful defendant directly. These decisions reflected the approach of the courts, namely that where a plaintiff had behaved reasonably in suing both defendants he should not normally end up paying costs to either party even though he succeeded only against one of the defendants.'
While Mr Munro accepted that Bullock orders could still be made, he submitted that it would not be fair to the 2 nd Defendant to make one in this case. This was not, he submitted, a case where the Claimant had to sue more than one defendant because he was unsure which of them had caused his loss. This was not a situation where the claims were genuinely in the alternative. He relied on what Griffiths Williams J. said in Whitehead, David McLeish v Barrie Searle, Hibbert Downall and Newton (a firm) [2007] EWHC 2046 (QB) at [24],
'In my judgment they [ Bullock and Sanderson orders] are appropriate nowadays only in those cases where the claimant does not know which party is at fault.'
There are, though, a number of difficulties with that submission:
i) The underlying judgment in Whitehead, whereby the Claimant in part at least succeeded...
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