"There are two additional findings which we submit Mr Justice Griffith Williams should make in order to ensure that all lose ends are tied up. The point is this: the judge has made a finding (in para.116 of his judgment) that 'the assessment of the value of the estate's claim made by HPN ... and Mr Searle ... was clearly negligent and in the case of HPN in breach of contract.' That finding gives rise to two questions: the first is a question as to the apportionment of the degree of blameworthiness of HPN and Mr Clough on the one hand, and Mr Searle on the other in respect of the default which the judge has found against both. The second is as to the proper value of the claim had HPN and Mr Searle not been in default. The reason this is relevant is that the damages to be awarded to the claimant amount to the difference between the judge's assessment of£90,000 (see para.68) and the figure negligently assessed by both lawyers in the sum of£20,000 . Thus had a proper assessment by the lawyers (let us say)£30,000 and the apportionment of the blameworthiness been (let us say) equal, it would follow that Mr Searle and HPN would each be equally liable for the first£10,000 of the damages while HPN would be liable solely for the balance. It would be our submission that these are essential findings which should be included in the judgment, and the judge's findings on those issues should be made in order to clarify the position before appropriate orders following the judgment can be either agreed or argued."
"(a) the claimants have long made clear that the alternative claims were only being retained as alternatives and that the claimants regarded the secondary claims as unnecessary in the event that liability was established against the second defendant on their primary claim. (b) According to the claimants' submissions for this hearing, the claimants 'put the second defendant on notice that they would seek an order that the defendant should pay the costs of the claim against the first defendant in the event that they were successful in the primary action and unsuccessful against the first defendant': see para.3.3 of the claimants' submissions. (c) The claimants went to considerable lengths to try to avoid requiring the first defendant to incur the substantial cost of preparation for trial and trial itself. The court will remember from Mr Searle's note on the draft judgment submitted on2nd May 2007 that at the PTR on25th October 2006 the claimants applied to split the trial so that only the primary claim was determined. The application was opposed by the second defendant and was unsuccessful."
"88. In general terms, I consider that issue-based costs orders can provide a way of making appropriate costs orders in circumstances where a claimant's claim has largely failed, but where his recovery could not be regarded as de minimis. Even pre-CPR, a claimant who recovered next to nothing would have to pay the defendant's costs: see, for example, Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All E R 873; Alltrans Express Ltd v C V Holdings Ltd [1984] l WLR 394; and Lipkin Gorman v Carpnale Ltd[1989] 1 WLR 1340 . If, on the other hand, the claimant made some small recovery, even if it was far less than the amount claimed, then, prior to the CPR, the obstruction to justice was that identified by Lord Woolf MR in A.E.I. Ltd, namely the rigid application of the 'follow the event principle'. For the reasons outlined below, I conclude that the instant case is a classic example of one where an issue-based costs order is appropriate. "
"The starting point for the exercise of the court's discretion is that costs follow the event (CPR 44.3 (2) (Johnsey). To work out who is the successful party, the court has to ask: 'Who, as a matter of substance and reality, has won?' (Roache; Painting) "
"22. There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant's costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed. "30. An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant's conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed. The case of Besterman v British Motor Cab Company Ltd[1914] 3 KB 181 provides the classic example of when it is appropriate to make the order. The plaintiff was injured in a collision between a taxi and a bus and did not know which was at fault, and sued the owner of the taxi as well as the owner of the bus. "31. A significant factor is likely to be whether one defendant puts the blame on another defendant. But as Mr Featherby rightly conceded, the fact that one defendant blames another does not in itself make the joinder of the other reasonable. It must depend on the facts available to the claimant, and in particular whether the claimant can sustain a claim against the other defendant. Defendants frequently blame others when things go wrong, but it does not follow that the claimant is thereby given liberty to sue the others at the expense of the defendant against whom the claimant succeeds."
"38. It seems to me that the above citation demonstrates that there are no hard and fast rules as to when it is appropriate to make a Bullock or Sanderson order. The court takes into account the fact that, if a claimant has behaved reasonably in suing two defendants, it will be harsh if he ends up paying the costs of the defendant against whom he has not succeeded. Equally, if it was not reasonable to join one defendant because the cause of action was practically unsustainable, it would be unjust to make a co-defendant pay those defendant's costs. Those costs should be paid by a claimant. It will always be a factor whether one defendant has sought to blame another. "39. The fact that cases are in the alternative so far as they are made against two defendants will be material, but the fact that claims were not truly alternative does not mean that the court does not have the power to order one defendant to pay the costs of another. The question of who should pay whose costs is peculiarly one for the discretion of the trial judge."
"(1) The court has discretion as to – whether costs are payable by one party to another; the amount of those costs; and when they are to be paid. "(2) If the court decides to make an order about costs – the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but the court may make a different order. "(3) The general rule does not apply to the following proceedings – proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings. 22. " (5) The conduct of the parties includes – conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol; whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; the manner in which a party has pursued or defended his case or a particular allegation or issue; and whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim. "(6). The orders which the court may make under this rule include an order that a party must pay – a proportion of another party’s costs; a stated amount in respect of another party’s costs; costs from or until a certain date only; costs incurred before proceedings have begun; costs relating to particular steps taken in the proceedings; costs relating only to a distinct part of the proceedings; and interest on costs from or until a certain date, including a date before judgment. "(7). Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c)..."
"That payment is made in respect of the whole of the claim made by Eric Whitehead in his capacity as administrator of the estate of Paula McLeish (deceased) for damages representing the amount by which the estate's claim is said to have been under-settled. The payment does not relate to the claims of Eric Whitehead in his personal capacity or any claims by David McLeish." (6). The acceptance by the estate of that payment would not have prejudiced their primary claim which they could have continued to pursue. (7) In my judgment, that payment should have been accepted. (8) The factual issues save as to quantum in the alternative claims, including the estate's claim, were irrelevant to the court's determination of the primary claim, but the factual issues in respect of the undervalued settlement did have some relevance to the factual issues relevant to the assumption of responsibility issue particularly because the second defendant in its defence sought to rely on the fact that the firm was a high street practice which had to rely upon counsel selected for his experience in the field of medical negligence. (9) To succeed in part of the claim the first claimant had to attack the credibility of the second defendant. That is a serious allegation to make against a professional man. So while the claim was only part successful, I do not consider the "who won" approach is conclusive. Certainly I reject the submissions of Mr Livesey, if I understand them correctly, that as the estate recovered less than 7% of the total sum claimed, then the claim for costs should be limited proportionately to that amount, or certainly much reduced on that ground. (10) My conclusion is that the costs of the primary claim and that part of the alternative claim which related to the undervalued settlement should be deemed to be about 50% of the total bill. That assessment is based in part upon the days spent during the trial on the respective claims and in my view, that a significant time was spent on the evidence relevant to the undervalued settlement - the evidence relevant to the personal claims was brief and within a very short compass. If the costs should be less than 50% then that would be explained, in my view, by the costs of expert reports for quantum purposes and I would make the necessary adjustment to maintain the 50/50 split because that expense was occasioned by the failure in the first place of the second defendant firm to pursue the claim properly before Miss McLeish's death. I should make it clear, as I hope I made it clear in the judgment, that had they pursued their claim properly before her death then much of the evidence which had to be subsequently obtained would, by then, have been obtained. (11) Rule 44.3(5)(a) provides that the conduct of the parties includes "conduct before as well as during the proceedings"