Irvine v Commissioner of Police for the Metropolis & Ors

LORD JUSTICE PETER GIBSON: This appeal gives rise to an issue on costs. The claimant sued three defendants variously in negligence, the first defendant also being sued for breach of statutory duty. The claimant succeeded on breach of statutory duty against the first defendant, but failed in his claims in negligence against all three defendants. The question which then arose was whether the costs of the successful second and third defendants should be borne by the claimant, or by the first defendant by means of what is known as a Bullock order (see Bullock v London General Omnibus Company [1907] 1 KB 264) or a Sanderson order (see Sanderson v Blyth Theatre Company [1903] 2 KB 533). In a Bullock order the claimant would be ordered to pay the successful defendants' costs, but the court would give liberty to the claimant to include those costs in the costs of the action recoverable by the claimant from the unsuccessful defendant. In a Sanderson order the court would order that the unsuccessful defendant pay the costs of the successful defendants directly.

The judge, Her Honour Judge Kirkham, decided not to make a Bullock or Sanderson order, but, applying the general rule that the unsuccessful party pays the costs of a successful party, ordered the claimant to pay the costs of the second and third defendants.

The facts so far as relevant are these. On 23rd August 1999 the claimant, Michael Irvine, then a police constable in the Metropolitan Police, was injured when walking upstairs to the first floor of Trinity Road Police Station where he was stationed. He caught his left foot in the stair carpet and fell awkwardly sustaining injury. He had to retire from the police on medical grounds.

The first defendant is the Metropolitan Police Commissioner. He is deemed to be the employer of the claimant, pursuant to section 1 of the Police (Health and Safety) Act 1997. The second defendant, Carillion Plc, manages the first defendant's property services under an agreement made in 1998 between the Receiver for the Metropolitan Police District and Tarmac Facility Services Ltd, to whom the second defendant succeeded.

On 8th July 1999 the second defendant instructed the third defendant, Town and Country Flooring Ltd, a sub-contractor, to repair the stair carpet. Work was carried out by the third defendant on 9th and 12th July. The accident occurred six weeks later. The claimant through his solicitors wrote to the first defendant's solicitors, making a claim for damages. On 30th August 2001 the first defendant's solicitors wrote to the claimant's solicitors enclosing a number of documents, including the 1998 agreement. They drew attention to the second defendant's responsibilities under the agreement, and to the fact that the second defendant had arranged for the third defendant to effect the repair to the carpet. The first defendant's solicitors suggested that the claimant's claim should be directed to the second defendant.

On 6th August 2002, shortly before the expiry of the limitation period, the claimant commenced proceedings in the Queen's Bench Division against the first, second and third defendants. By the claim form the claimant claimed damages for personal injuries sustained and financial losses incurred as a result of his accident, which he said was caused by the negligence and/or breach of statutory duty of the first and/or second and/or third defendants. However, when the particulars of claim were served, the case of the claimant was not put in the way indicated in the claim form. It was pleaded in paragraph 3 that the police station where the accident occurred was subject to the Provision and Use of Work Equipment Regulations 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992. It was also averred in paragraph 2 that the first defendant owed the claimant a non-delegable duty of care at common law to provide him with a place of work which was reasonably safe. In paragraph 5 it was said that the accident was caused by the breach of statutory duty and negligence of the first defendant. Particulars are there given which link the negligence with duties under the Occupiers' Liability Act 1957. In paragraph 6 it was pleaded:

“Further the accident was caused by the fault of the Second and Third Defendants. The Claimant has no knowledge of their precise involvement in the inspection, maintenance and repair of the carpet. The Second Defendant has been blamed by the First Defendants and the Third Defendant has been blamed by the Second Defendant. The Claimant will plead full particulars against them once such knowledge is available.”

By the prayer, damages were claimed against all the defendants.

On 30th October 2003 the particulars of claim were amended. A new paragraph 5A was inserted in this form:

“Further or in the alternative the accident was caused by the negligence of the Third Defendant, its servants or agents acting in the course of their employment.

PARTICULARS OF NEGLIGENCE

The Third Defendant was under contract to the First Defendant for the installation and maintenance of floor coverings. The covering on the stairs had originally been laid by the Third Defendant. On 8 July 1999 the Third Defendant was instructed to carry out repairs to the carpet on the stair where the Claimant's accident took place. An employee of the Third Defendant, Mr Wayne Harvey, attended the premises on 9 and 12 July 1999 and restuck the stair risers. By the time of the Claimant's accident on 23 August 1999 the riser on the stair where he fell had become detached again. The Third Defendant had failed to secure the riser with sufficient care and skill, alternatively with adequate materials, both when they originally laid it and on the 9 and 12 July 1999.”

Paragraph 6 was amended to delete references to the third defendant. Despite what is said in paragraph 6, no particulars were ever provided of the negligence of the second defendant.

Each of the defendants put in a defence. By paragraph 11 of the first defendant's defence it was averred that if there was any liability for the accident it lay with the second defendant and/or the third defendant. The first defendant brought Part 20 proceedings against the second defendant.

The trial of both liability and quantum came before the judge. On 30th April 2004 she held that the claimant succeeded against the first defendant for breach of statutory duty under regulation 5 of the 1992 regulations, but dismissed the claim in negligence against the first defendant. She also dismissed the claims against the second and third defendants, and the first defendant's Part 20 claim. In her reserved judgment, delivered on 7th May 2004, the judge said this about the claim against the second defendant:

“60.

Mr Harris, for the second defendant, submits that the absence of a particularised claim against the second defendant means that the claim against them must necessarily and without more fail. No evidence has been adduced that the second defendant failed to do anything they should have done or that they did something which they should not have done. The first defendant passed on to the second defendant the complaint concerning the carpet. The second defendant immediately alerted the contractor, engaged before the second defendant assumed obligations under the October 1998 agreement. In my judgment, there is no basis for concluding that the second defendant is liable to the claimant and the claimant's claim against the second defendant fails.”

The judge then turned to the claim against the third defendant. She said this:

“61 ... His case is that the third defendant failed in July 1999 to secure the carpet riser with sufficient care and skill; alternatively with adequate materials on the 9th and 12th July. That is the pleaded case. I accept Mr Gallagher's submission that the claimant has not made out a case in negligence against the third defendant. There is no cogent evidence to demonstrate that the repair to the tread in July was defective or negligently done. Indeed the evidence from Inspector Davis is that upon completion of the repair, the repair was apparently effective. There was no trouble with the carpet until the morning of 23rd August. There is no evidence as to how the carpet was laid, whether badly or otherwise, what materials were used, whether improper materials or otherwise. No investigation was made to determine what had caused the carpet to rise. It is curious that it was apparently only this one stair on which the tread was affected. Mr Gallagher submits that there may have been some quirk in the stairs. Inspector Davis' evidence was that the stairs were springy. The inspection carried out recently, following which the strip of carpet was lifted to bring to court, appears to show that the carpet has a tendency to rise at its leading edge.

62.

These are matters of conjecture, but in my judgment, it not sufficient here to say that because the third defendant stuck the carpet down on 9th July and because it had risen by the morning of 23rd August, it must necessarily follow that the third defendant had been negligent in the way they undertook their work, even though the period of time in question is, I accept, very short. The burden is on the claimant to prove negligence on the part of another person. In my judgment, here the claimant has not discharged that burden and the claimant's case against the third defendant fails.”

The judge next considered the Part 20 claim at some length over the next 11 paragraphs, but held in paragraph 74 that the first defendant had not proved that the second defendant was liable to indemnify the first defendant or that the second defendant was liable to the first defendant in damages.

After the judgment the judge was told that the damages were agreed in a total sum of £26,355. There was then an argument on costs, and in particular whether a Bullock or Sanderson order was appropriate. It was argued for the claimant that the reasonable litigator would have joined all three defendants. For the first defendant it was submitted that the claimant did not sue the defendants on an alternative basis and that, having failed in his separate claims against the second and third defendants, he should pay their costs.

The judge in a 7-page judgment (to which I would pay tribute) agreed with the first defendant. The relevant parts of her reasoning are as follows:

“It does seem to me that this is case where, as in all cases, parties and their legal teams have to take a careful and close look at the basis on which they seek to bring in another party to proceedings and to make a judgment for themselves on the basis of the information available to them as to whether or not they are likely to succeed in claims against those parties. They cannot expect, simply because one party seeks to lay the blame at the door of another, that they can necessarily pursue that other party at the expense of the one who is pointing the finger. Parties must give careful thought to how they are going to pursue their claims.

It seems to me that this is a case where the claimant could and should have taken a view as to the prospects of success against the second and third defendants. I accept Mr Nussey's submission that this is not a classic case where a court might make a Bullock or Sanderson order. This is not a classic either/or case. The very strong probability was that the claimant was always going to sue the first defendant in relation to this accident, as indeed he did. It seems to me that the way the claimant has pursued the claim, particularly against the second defendant, as appears from a rather Delphic pleading in relation to the second defendant but also in relation to the third defendant, has been slightly less than full-hearted when compared with its pursuit of the claim against the first defendant.

Finally, it seems to me that the question of liability for costs should be considered as a matter of principle and as to whether or not there is any practical consequence of making one order or another in terms of amounts to be paid is a subsidiary point and is not one that should weigh heavily with the court in considering whether as a matter of principle one party should be liable for another party's costs or not.

In summary, it seems to me that this is a case where it was for the claimant to decide for itself, firstly, on issue of proceedings and, secondly, again at the very least on amendment of the particulars which came about after full disclosure of documents, whether and to what extent it considered it had good claims against the second and third defendants, and those were matters between the claimant and those parties and this is not a case where the first defendant should be ordered to pay those costs.”

The judge refused permission to appeal, but Dyson LJ in granting permission said that there appeared to be no finding as to the reasonableness of the claimant suing the second defendant and at best only an implied finding that it was unreasonable to sue the third defendant. Dyson LJ directed that the second and third defendants, who were in any event entitled to their costs from either the first defendant or the claimant, need not appear on the appeal. In consequence on this appeal only Mr Featherby, for the claimant, and Mr Nussey, for the first defendant, appear.

Mr Featherby was not the pleader of the original or the amended particulars of claim, and only came into the case shortly before trial. Before us he argues that the judge should have made a Sanderson order requiring the first defendant to pay the second and third defendant's costs. He submits that under CPR 44.3: (1) the court has a discretion as to whether costs are payable by one party to another; (2) the court must have regard to all the circumstances; (3) the circumstances include the conduct of the parties, and whether a party has succeeded on part of his case even if he has not been wholly successful; and (4) the conduct of the parties includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.

These submissions are not controversial. They are taken from the relevant rule. But they omit the statement of the general rule in Rule 44.3 that the unsuccessful party will be ordered to pay the costs of the successful party (Rule 44.3(2)(a)), and the provision that the conduct of the parties to which the court must have regard includes the manner in which a party has pursued his case (Rule 44.3(5)(c)).

Mr Featherby drew our attention to the remarks of Keene LJ in King v Zurich Insurance Company [2002] EWCA Civ 598, at paragraph 33, as to the approach which the courts had adopted prior to the CPR but which this court was continuing to adopt, that is to say:

“... 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.”

Mr Featherby goes so far as to say that it would have been crazy, negligent, as well as unreasonable, not to sue the second and third defendants. He submits that the question is one of reasonableness, and that the judge failed to exercise her discretion properly because she made no express finding on reasonableness. He contends that it is illogical and unreasonable for the first defendant to defend the claim on the footing that he was not liable but that the second and third defendants were, and then to argue for costs purposes that the claimant should not have sued the second and third defendants.

Mr Nussey for the first defendant supports the judge's reasoning and conclusion. He submits that this was not a claim made in the alternative against the defendants, but a claim against the second and third defendants in addition to that against the first defendant. He argues that the claimant raised no sustainable case against the second defendant, whose function was to manage the first defendant's property, and that the first defendant had separate statutory and common law duties. As for the claim against the third defendant, a particularised case was only pleaded in the amended particulars of claim, and that involved proving facts to establish negligence additional rather than alternative to those alleged against the first defendant. He draws attention to the fact that the claimant through solicitors made clear to the first defendant's solicitors, by letter dated 6th February 2002, that the claimant would sue the first defendant for breach of the non-delegable duty of care to provide a safe place of work. Mr Nussey contends that in the light of Stark v Post Office [2000] ICR 1013, the claimant was always likely to succeed against the first defendant. He says that the judge was fully aware of and took account of the conduct by the claimant of the proceedings against the second and third defendants.

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.

The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd [1948] 1 KB 515). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed.

The circumstances in which the court makes such an order are stated in the White Book 2004, paragraph 44.3.8, as follows:

“Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant's costs.”

I stress the words “in the alternative”. That accords with the way the jurisdiction is expressed in both the Bullock and the Sanderson cases, and by Lord Brandon, giving the only reasoned judgment in the House of Lords, in Bankamerica Finance Ltd v Nock [1988] AC 1002, at page 1011, where the fact that the claims against the two defendants in that case were in substance alternative claims, on which the claimant was bound to succeed on one and could not have succeeded on both, was relied on as showing that the court had power to make a Bullock or Sanderson order.

Such is the width of the language of Rule 44.3(1) that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order. The judge had this in mind when she said that this was not a classic case for making the order.

A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other. In Mulready v JH & W Bell Ltd [1953] 2 All ER 215, the first defendant had contracted with the second defendant to construct a factory for the second defendant. The first defendant employed a sub-contractor to do part of the work. The plaintiff, an employee of the sub-contractor, fell from the factory roof, sustaining serious injury. He successfully sued the first defendant for breach of duty under the Building Regulations for failing to take suitable precautions to prevent him falling. He unsuccessfully sued the second defendant for breach of duty under the Factories Act in failing to provide means to ensure his safety while working on the roof. The trial judge, Pearson J, made a Bullock order. This court set that order aside because the causes of action against the defendants were different and depended on different facts. Lord Goddard, giving the judgment of this court (himself, Birkett and Hodson LJJ), said this at page 219:

“A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other.”

Mr Featherby sought to distinguish this case on the basis that the first defendant had not sought to put the blame on the second defendant; but, as is apparent from the passage which I have cited, that is only a difference in fact and the reasoning of this court did not depend on that.

I do not say that this factor is necessarily determinative, but it is a relevant consideration. The judge was of course fully aware in the present cause of what was the cause of action on which the claimant had succeeded and on what causes of action the claimant had failed.

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.

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.

What has happened in the present case is a striking illustration of how the costs of having many parties to litigation have completely dwarfed the small amount recovered by the claimant. We are told that the total costs of the four parties to the proceedings amount to over £100,000. The damages recovered are only a little over a quarter of that. The joinder by a claimant of additional parties is not something the court should encourage, save with great caution.

I turn to the claimant's attack on the judge's decision. Given the evident care with which the judge has expressed her reasoning in both the main judgment and the costs judgment, the claimant faces the difficult task of persuading this court to interfere with the judge's exercise of discretion. As the judge herself explained when refusing permission to appeal, she had considered all the matters which were referred to by counsel.

To my mind the appeal in respect of the second defendant's costs is hopeless for the following reasons.

First, apart from the claim form's wording of the claim, which was not carried through to the particulars of claim or the amended particulars of claim, the second defendant was never sued in the alternative to the first defendant.

Second, the claims against the first defendant were in negligence linked to the Occupiers' Liability Act 1957 and breach of statutory duty. The claim against the second defendant appears to have been quite different, being in common law negligence only, though as it was never pleaded fully one can only speculate as to what was the pleaded fault.

Third, the claim against the first defendant which succeeded was for breach of statutory duty not pleaded against the second defendant.

Fourth, from start to finish no proper case against the second defendant was ever put forward.

Fifth, although the first defendant encouraged the claimant to sue the second defendant instead of himself in the letter of 30th August 2001 and in his defence suggested that any liability lay with the second and third defendants, the claimant failed to establish that he had a sustainable case against the second defendant, and although that position did not change, as evidenced by the continued absence of the particulars promised in paragraph 6 of the amended particulars of claim, the claimant pursued the claim against the second defendant until judgment.

Sixth, although the judge made no express finding as to the unreasonableness of joining the second defendant, she had well in mind the submissions of counsel for the claimant which she faithfully recorded and which repeatedly referred to the matter needing to be looked at through the eye of the reasonable litigator. There can be little doubt from paragraph 60 of the main judgment that the judge thought that the claimant's conduct in joining the second defendant and in pursuing the case against it was unreasonable. The judge further had regard to the conduct by the claimant of the proceedings, referring as she did in the costs judgment not only to the inadequate and Delphic pleading, but also to the less than full-hearted way in which the claim was pursued.

Seventh, no error of any sort has been so shown such as might vitiate the judge's exercise of discretion or otherwise enable this court to interfere. In my judgment, it would be unjust for the first defendant to be made liable for the second defendant's costs. The judge was justified in applying the general rule that the unsuccessful claimant should pay the successful defendant's costs.

The appeal in respect of the third defendant's costs in my judgment must also be rejected for the following reasons.

First, the third defendant was only sued in the alternative by amendment 15 months after proceedings commenced against that defendant.

Second, the claim against the third defendant was wholly different from the claims against the first defendant, the nature of which I have already described. The claim against the third defendant was in common law negligence and depended upon establishing the particular facts pleaded, which had nothing to do with the successful claim against the first defendant.

Third, the claim which succeeded against the first defendant was breach of statutory duty. That was not pleaded against the third defendant.

Fourth, while a particularised case against the third defendant was put forward in the amended particulars of claim, the judge in paragraphs 61 and 62 of the main judgment found that no case in negligence was made out. She criticised the claimant for the lack of cogent evidence to demonstrate that the repair was defective or negligently done, and pointed to the existence of evidence to the contrary. She noted the absence of evidence of how the carpet was laid or what materials were used and the failure to investigate what caused the carpet to rise.

Fifth, before proceedings commenced the first defendant did not suggest that the claimant sue the third defendant, though there is a note of a conversation by telephone on 21st March 2002 between the claimant's solicitor and the first defendant's solicitor, in which the latter spoke of trying to persuade the second and third defendants to “take on the matter” in exoneration of the first defendant. The first defendant did suggest in his defence that any liability might rest with either the second or the third defendants. However, the judge was entitled to take the view that it was for the claimant to make his own decision on whether he had sufficient material to sustain a claim in negligence against the third defendant, and that the claimant must take responsibility for the decision to pursue that claim.

Sixth, I repeat that the judge had reasonableness well in mind when refusing to make a Bullock or Sanderson order. In my judgment it can be inferred that the judge thought the claimant's conduct unreasonable in joining the third defendant without being in a position to allege on what basis the third defendant was at fault, and in pursuing the claim to judgment in the way the claimant did after the amended particulars of claim had been filed. The judge had expressed in paragraphs 61 and 62 of the main judgment why that claim failed. She referred in the costs judgment to the half-hearted way the claim had been put against the defendant.

Seventh, again no error in the exercise of discretion by the judge has been shown.

In the circumstances, the judge was in my judgment entirely right to order the claimant to pay the third defendant's costs.

For these reasons, I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE JACOB: I also agree.