Multiple Defendant cases: winning against some but losing against others:  Temple ATE insurance to the rescue

(Estimated reading time: 4 minutes, 7 seconds)

A position that many of solicitors may have found themselves in, is where there is a claim against multiple Defendants and trial is just around the corner. Prospects are good but new evidence has arrived which has weakened your case against one or more Defendants, and you had to discontinue the case against them under CPR 38.

Although your client has the benefit of QOCS protection, there is the possibility that the Defendants may be entitled to their costs under 44.14(1).

44.14(1) states “Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant“.

Fortunately, this risk has been mitigated by the decision in Cartwright v Venduct Engineering Limited [2018] where the Court of Appeal found that a Tomlin Order was not considered a “Court Order” under 44.14(1) and therefore the Claimant continued with the benefit of QOCS and the successful Defendant was not entitled to enforce their order for costs.

However, what if the case is discontinued against the Defendant – they are entitled to their costs, yet the claim is ongoing? Will the Court be willing to grant a “Bullock” or “Sanderson” order in this instance by ordering the losing defendant to indemnify the claimant (Bullock) or pay direct (Sanderson) to the “successful” Defendant, the costs for which the claimant would otherwise be liable?

Both Bullock and Sanderson orders are costs orders that are used in circumstances where a Claimant has proceeded against multiple Defendants Bullock v London General Omnibus Company [1907] and Sanderson v Blyth Theatre Company Limited [1903].

The old rule was that when these orders were made, it was in instances where the Claimant would have to pursue multiple Defendants as it was not clear who the appropriate one was. This was usually because each one was placing responsibility on the others Whitehead v Searle [2007].

However, the Court’s approach to granting Bullock and Sanderson orders was widened by the decision in Jabang v Wadman and Ors [2017]. In this instance the Claimant was pursuing their action against five Defendants and, after the case was discontinued against the first Defendant, trial commenced against the remaining four.

The trial concluded with the Claimant succeeding against the second Defendant but ultimately failing against the third, fourth and fifth. Although the Claimant had succeeded in her claim, she was ordered to pay the costs of the failed Defendants and therefore argued for a Bullock order.

Despite arguments brought by the unsuccessful second Defendant using the decision in Whitehead v Searle [2007], the Court concluded that a Bullock order was appropriate. This was because as the claim against the other Defendants (save for the first) was not unreasonable and nobody was blaming each other. Had the second Defendant accepted their responsibility, the claim would not have needed to be brought against the other Defendants. Ultimately the unsuccessful second Defendant was responsible for the Claimant’s and successful Defendants’ costs, save for the first against whom it had not been reasonable to pursue the claim.

This of course brings about new questions. What approach will the Court take where discontinuance is against some Defendants, but the case continues against others where the discontinued Defendant is entitled to their costs?

Jabang v Wadman and Ors [2017] was a decision that concluded at trial. However, with ongoing claims, will the Court take the approach by reserving costs pending the outcome of the claim against the remaining Defendants? Or a Bullock order seeking their costs from the Claimant (who will then recover these from the remaining Defendants) should their claim be successful?

Will the Court even decide to make one of these orders at all and just award costs to the successful Defendant? What if the remaining Defendant has accepted responsibility for the claim at a later stage which has resulted in the other Defendants needing to be brought out of the action? As long as it can be shown by the Claimant that there was good reasoning for bringing a claim against each of the opponents then the principles set out Jabang will apply.

If the conduct of the Claimant’s solicitors is brought into question by taking a “scattergun” approach when pursuing multiple Defendants, it is unlikely either order will be made and the Defendants’ costs will need to be met by the Claimant.

Either way, the benefit of Temple’s ATE insurance product can give Claimants and solicitors peace of mind from the risk of paying potentially expensive Defendants’ costs, as these costs will be covered by the insurance and the cover will continue to provide the necessary protection for the remaining life of the case.

If you would like further details on how Temple ATE insurance can protect you and your clients in situations such as that outlined above please call us on 01483 577877.