Background
The claimant sustained injury when she was using her bike and collided with a lorry driven by the first defendant (D1). The second defendant (D2) had organised an event consisting of a fair, fireworks display, and bonfire. D2 contracted with the third defendant (D3) to run the fair. D1 was to provide dodgems and was delivering these when the accident occurred.
Who blames whom?
The claimant had originally issued proceedings against D1 alone. D1 denied liability but did not blame either D2 or D3. The claimant amended her claim to join D2 into the proceedings. D2 denied liability, blamed D3 and issued third party proceedings against D3. The claimant then further amended her claim to bring claims against all three defendants, and in turn each of the defendants blamed the others for the accident happening.
At Trial
The judge found that there should be judgment in the claimant's favour for 87.5% of the recoverable damages on a full liability basis, that D3 was not negligent, that each of D1 and D2 were negligent, and that liability as between D1 and D2 should be apportioned so that D1 bore 65% and D2 bore 35% of the obligation to compensate the claimant.
Thereafter D3 sought their costs. In support of their claim for costs, D3 referred to Calderbank offers made to D1 and 2 to withdraw their claims and they would bear their own costs.
The judge did then make an order for costs in D3's favour and said:
"It is self-evident that the offer by D3 to bear its own costs upon the claims against him being withdrawn should have been accepted…
However, although I note my apportionment of liability between D1 and D2 in respect of C`s claim was that D1 should bear 65% of liability, I am satisfied that such is too high given that D2, and not D1, brought contribution proceedings against D3 which led to C amending her pleadings to join D3 as a defendant and to D1 making a claim against D3. Moreover, at the trial any reasonable observer would have believed that the major issue in the case was between D2 and D3 as to whether D3 was liable although both D1 and D2 jointly pursued a finding of liability against D3.
I am satisfied that it is equitable and just that on the facts of this case D2 should bear a higher percentage of D3`s costs than D1. I thus order that D3`s costs are to are paid be paid by D1 and D2 in the proportions of 40% and 60% respectively."I am satisfied that it is equitable and just that on the facts of this case D2 should bear a higher percentage of D3`s costs than D1. I thus order that D3`s costs are to are paid be paid by D1 and D2 in the proportions of 40% and 60% respectively."
Seeking Orders for costs
This is perhaps one of the top issues that I get asked the most about by our legal advisers and clients.
Ultimately, the question is one of reasonableness and, the claimant's conduct may be relevant – especially in the sense of whether it was reasonable for the claimant to bring in more than one defendant.
In Moon v Garrett [2006] EWCA Civ 1121 at Para 38 Waller LJ said: "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 cost should be paid by a claimant. It will always be a factor whether one defendant has sought to blame another."
If one party has denied liability and run a very weak case and is ultimately found to be liable then it is likely the court will make a Sanderson/Bullock Order and the unsuccessful defendant will be liable to pay the successful defendant's costs. Any rejected offers to the other party to walk away on advantageous terms will only strengthen your case when the question of costs falls to be decided.
William Mackenzie can be contacted at william.mackenzie@dwf.law or 020 7645 9507. Please feel free to discuss the above or the application of this case with him.
