[1] Two provisions to note here:

(1) Section 51 of the Senior Courts Act 1981 states that the Court shall have full power to determine by whom and to what extent costs are to be paid (see section 51(3)); and

(2) CPR Part 44, which is entitled 'General Rules about Costs', wherein there is the main costs provision, in r.44.2, entitled 'Court's discretion as to costs'. R.44.2(1) and (2) provide:

'(1) The court has discretion as to-

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

(2) If the court decides to make an order about costs-

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.'

[2] CPR r.44.2, entitled 'Court's discretion as to costs', contains, in r.44.2(3), some exceptions to the general rule stipulated in r.44.2. R.44.3 states:

'The general rule does not apply to the following proceedings-

(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.'

[2a] Perhaps a rather obvious point but the situation described in the main article, is not the same as where the claimant sues 2 (or more defendants) and loses against both of them.

[2b] There is another route - as illustrated by the following case.

In Natixis SA v Marex Financial Ltd [2019] EWHC 3163 (Comm) [2020] 2 All E.R. (Comm) 807, a claimant bank (Natixis) was: (a) successful against the first defendant (Marex; 'USD'); but (b) unsuccessful against the second defendant (Access World; ('SD')). Further, Marex was held liable to Access World for having negligently authenticated some of the forged receipts.

The issue of Access World's costs of Natixis' claim against Access World - remained outstanding. The claimant argued:

'Natixis, submits that Natixis acted reasonably in making claims against both Marex and Access World, that Natixis claimed against Access World at Marex's request, with Marex's express sanction, and that it brought claims which were "parasitical" on Marex's own claim, which share a nexus with Natixis' claim against Marex.' (paragraph 3)

'Natixis asked the Court to exercise its discretion under CPR44.2 to order Marex to make a direct payment for costs to Access World on Sanderson principles, alternatively to make Marex and Natixis jointly and severally liable for Access World's costs of Natixis's claims against Access World.' (paragraph 6)

After being referred to: (a) r.44.2; (b) paragraph 38 of Moon v Garrett [2007] 1 Costs L.R. 41, Bryan J held, at paragraphs 14 to 16:

'Ultimately, as is recognised both in CPR44.2 and indeed in the passage from Moon v Garrett to which I have referred, the matter is one for the exercise of judicial discretion in relation to costs.

I consider that the one scenario that should not arise is one where Access World faces a credit risk in circumstances where there would not be a credit risk in relation to Marex, if a standard order following the event was made.

In circumstances where Natixis essentially sued Access World at the instigation of Marex, Natixis' claim is parasitical on Marex's claim and Marex is the ultimate paying party, I consider that the just and appropriate Order to make is that Marex and Natixis are jointly and severally liable for Access World's costs, and I so order.'

[2c] In Irvine v Commissioner of Police of the Metropolis (Costs) [2005] EWCA Civ 129; [2005] 3 Costs L.R. 380, Peter Gibson LJ (with whom Scott Baker LJ and Jacob LJ agreed) said, at paragraph 1:

'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.'

[2d] Before turning to the judgment in Dixon v Blindley Heath Investments Ltd [2016] EWCA Civ 548; [2016] 4 Costs L.R. 627 ('Dixon 548'), it is helpful to refer to HHJ Curran QC (sitting as a Judge of the High Court) on 14.3.18 in Heynike v 00222648 Ltd (formerly Birlec Ltd) [2018] 3 WLUK 332 ('Heynike'), wherein he gave a summary of Dixon 548, at paragraph 26 of Heynike:

'The Court of Appeal in Dixon and Another v Blindley Heath Investments Ltd and Others [2016] 4 Costs L.R. 627, followed the principles in Irvine, and a number of matters were highlighted:

i) It was not critical that the claimant was suing two or more defendants for the same loss, being unable to determine which of them has caused it. It might very well be the classic case for such an order, but was not a necessary condition.

ii) Nor was it necessary that one of the defendants sued should have blamed another. That was a relevant consideration but it was not a determinative one.

iii) It was necessary to be conscious of the need for caution in the application of the principle, lest in its application to avoid injustice to one it cause greater injustice to another, and encourage multiplicity of defendants; but that is a matter of careful application rather than excessive restriction.'

Turning then to judgment the Dixon 548 itself, the decision was given by Hildyard J for the Court of Appeal. In the underlying claim the claimant (BHIL) had claimed against: (a) the first to seventh defendants (unsuccessfully); and (b) eighth (Mr Dixon), ninth (Mr Clarke) and tenth (Mr Wells) defendants (successfully).

Hildyard J said, from paragraph 58 (jump to paragraph 73 for the decision):

'58. The parties were broadly agreed, both here and below, as to the relevant legal principles. As the deputy judge recorded in para 53 of the supplemental judgment below, in Irvine v Commissioner of Police for the Metropolis and Others [2005] EWCA Civ 129 at [22] Peter Gibson LJ confirmed the survival of the Bullock jurisdiction after the introduction of the CPR, noting that the jurisdiction is a useful one

“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.”

59. However, Peter Gibson LJ also described the form of order as “a strong order, capable of working injustice” and noted (at [32]) that:

“The joinder by a claimant of additional parties is not something the court should encourage, save with great caution.”

60. The reasons why the deputy judge determined not to make a Bullock order can be summarised as follows. First, she considered that bearing in mind the events at the informal pub lunch to which we have already briefly referred it was not reasonable for BHIL to seek rescission of the SPA (see para 57.1 of the supplemental judgment below).

61. Secondly, for the reasons previously described, she concluded that the claim in deceit ought not to have been brought (ibid. at para 57.2).

62. Thirdly, although it was in principle reasonable for BHIL to bring a contractual claim for breach of the SPA, she considered that “it was not reasonable [to] do so having regard to the fact that no loss could be established” (ibid. at para 57.3).

63. Fourthly, she considered that this case did not share a classic hallmark of a Bullock order-type case (identified and emphasised by Peter Gibson LJ in the Irvine case) in that she viewed it as “not a case where the eight to eleventh defendants blamed the first to seventh defendants”: on the contrary, it was BHIL which chose to bring proceedings against the first to seventh defendants and

“only applied to join the eighth to eleventh when it became clear that the first to seventh defendants were not taking steps to join them as additional parties” (ibid. at para 57.4).

64. Fifthly, the deputy judge considered that another missing hallmark was the fact that this “is not the typical Bullock situation where a claimant sues two defendants for the same loss because it does not know who was responsible for it and each defendant blames the other”and:

“it does not seem to me that the causes of action are the same. Indeed, as was pointed out on their behalves, Mr Clarke and Mr Wells did not need to be party to the claim for a declaration in relation to the pre-emption agreement at all” (ibid. at para 57.5).

65. Sixthly, she found that:

“Although Mr Dixon argued for the existence of rights of pre-emption and so adopted a position which was inconsistent with the position adopted by Mr Bass and Mr Mingay, he did not encourage the claimant to bring a claim against the first to seventh defendants, let alone one which was founded in deceit. BHIL maintained that case for far longer than was appropriate” (ibid. at para 57.6).

66. Lastly, the deputy judge concluded that:

“this is a case where the claim against the first to seventh defendants was practically unsustainable and the costs of those unsuccessful claims should be borne by the claimant” (ibid. at para 58).

67. Mr Hollington contested every aspect of that approach. On behalf of BHIL he submitted that, on the contrary, this was a classic case for the making of a Bullock order, and that it was manifestly unjust for the deputy judge to leave BHIL bearing all the costs it had been ordered to pay the first to seventh defendants.

68. He submitted that BHIL had had no alternative than to proceed against those defendants as its sole recourse if Mr Dixon was correct to say that there were in existence valid and enforceable pre-emption provisions of which they were well aware. BHIL's success against the eighth to tenth defendants should not be eroded by having to bear the costs of parties against whom it had proceeded only because the eighth to tenth defendants had exposed them to such a claim by putting forward a reason for declining registration the truth of which BHIL was in no position to determine itself.

69. On behalf of the eighth defendant (Mr Dixon), Mr Weatherill QC, in seeking to uphold the decision of the deputy judge not to make a Bullock order, suggested that Mr Hollington's submissions went materially beyond what his junior had submitted below, and focused chiefly on the discretionary nature of the decision. He submitted that the deputy judge's careful judgment demonstrated that she had plainly had in mind and adopted the correct tests and principles in making her order, and having “exercised her discretion in a principled and thoughtful manner, her decision should be upheld”.

70. For the tenth defendant (Mr Wells) Mr Ohrenstein of counsel adopted much the same general approach as Mr Weatherill. He emphasised especially (a) the fact that it was not reasonable for the claimant to seek rescission given that its real aim was registration, (b) Mr Wells had never suggested that the first to seventh defendants were dishonest, nor had he ever encouraged a claim against them; furthermore (c) this was not a case where the claim for rescission was the same or even sufficiently linked to any cause of action against Mr Wells (or indeed, Mr Clarke); and moreover, since “Mr Wells did not oppose the declaration that any pre-emption agreement was unenforceable there is no good reason for him to have to pay the bill for the claimant (wrongly) to bring a contrary claim against [the first to seventh defendants]”.

71. Lastly, Mr Ohrenstein submitted that if any Bullock order was granted (contrary to his primary submission that it should not be) it should be granted solely against Mr Dixon since (i) it was Mr Dixon who (unlike Mr Wells) was opposing the declarations as to the unenforceability of the pre-emption agreements, (ii) it was Mr Dixon who (unlike Mr Wells) was challenging the evidence and submissions of the first to seventh defendants asserting that there was no enforceable preemption agreement, and (iii) Mr Dixon (unlike Mr Wells) never highlighted the flaws and inconsistencies in the claimant's damages claim or took any steps to discourage the claimant from pursuing the first to seventh defendants.

72. In reply, Mr Hollington accepted that the clearest case for a Bullock order was against Mr Dixon and the least clear against Mr Clarke (who had sold his shares to Mr Dixon and was not represented); but he maintained that Mr Wells was “in it together” with Mr Dixon, and reminded us of the evidence of the collaboration between Mr Dixon and Mr Wells to seek control of the Company, as recorded (for example) in para 40 of the main judgment below.

73. Was the deputy judge's exercise of discretion flawed and wrong? In reaching our conclusions we have sought to focus primarily on whether the reasons given by the deputy judge on the basis of the arguments put before her are sufficient to support her decision, and not to take any material account of submissions not advanced below.

74. First, we differ to some extent at least with the deputy judge's approach as to the ambit of the Bullock jurisdiction.

75. Thus, we do not consider that it is a powerful factor against the making of a Bullock order in this particular case that the claimant was not suing two or more defendants for the same loss, being unable to determine which of them has caused it. That is of course a paradigm situation: but it is not a necessary condition.

76. Nor is it necessary that one of two or more defendants sued should have blamed the other. As Peter Gibson LJ acknowledged in the Irvine case (at [29], that is a relevant consideration but it is not determinative.

77. Nor, furthermore, do we think it a disqualifying feature that in this particular case the claimant's case against the first to seventh defendants (ostensibly seeking rescission and/or damages) was inconsistent with its claims against the eighth to eleventh defendants (seeking registration of the transfer of shares).

78. The fact is that both claims arose out of (a) the decision to refuse registration based on (b) the assertion of pre-emption provisions in circumstances where (c) it was not possible for the claimant to know which of two versions as to the enforceability of the pre-emption provisions and the propriety of the refusal to believe.

79. We recognise and echo Peter Gibson LJ's warning of the need for caution in the application of the principle, lest in its application to avoid injustice to one it cause greater injustice to another, and encourage multiplicity of defendants; but that is a matter of careful application rather than excessive restriction. In short, we think that in all the circumstances this is a case which could well attract the Bullock jurisdiction.

80. All that said, as we read the costs judgment below, the deputy judge ultimately based her decision not so much on nonconformity with the typical Bullock case, but more on her perception of the practical unlikelihood of the claim against the first to seventh defendants resulting in the claimant seeking and establishing rescission and/or material loss, the claimant's fault in asserting deceit, and the unsustainability in the round of its claims as against the first to seventh defendants.

81. Whilst, as previously indicated, we agree that the claim should not have been framed in deceit, we are not as persuaded as was the deputy judge that the claims against the first to seventh defendants were unsustainable and could never have resulted in any material recovery in respect of the difference in value between legal title and equitable title. Conversely, we are much more persuaded than was the deputy judge that it was Mr Dixon's course of action in “re-discovering” and seeking for his own advantage to resurrect (see our substantive judgment at paras 56 to 58) the pre-emption provisions, and to procure rejection of the share transfers, that lay at the heart of both aspects of the dispute.

82. We consider that the combination of (a) the deputy judge's (in our view) misdirected emphasis on supposed differences between this case and the more usual Bullock case and (b) her perception that there was no practical substance or utility in the claim against the first to seventh defendants obscured and caused her substantially to overlook the consideration which we consider to be paramount, which is Mr Dixon's personal responsibility, in combination at least to some extent with Mr Wells (and, less so, Mr Clarke).

83. In the circumstances, and notwithstanding the important general rule that the Court of Appeal will be reluctant to interfere on issues of costs, we consider that the deputy judge erred in refusing to make a Bullock order in the peculiar circumstances of this awkward case.

84. The question then is what the terms of the order should be. Mr Weatherill covered the possibility of this court substituting a Bullock order in his written submissions. He urged us to restrict any indemnity to no more than 10% on the basis that neither Mr Dixon nor, for that matter, Mr Wells or Mr Clarke was responsible for the aggressive manner in which BHIL advanced its claims, still less for its decision to make a claim in deceit. Further, he submitted that it would be wrong and unjust for any indemnity to extend to indemnity costs. He referred us to para 59 of the costs judgment below, in which the deputy judge explained that, even had she been persuaded to make a Bullock order, she considered that:

“it would be contrary to principle to extend that order to that part of any costs which have been ordered to be paid on an indemnity basis because the indemnity basis reflects my disapproval of conduct on the part of BHIL.”

85. We agree with this point; but we are wary of a solution that might make two bases of assessment necessary. Taking account of the fact that the claimant is to pay the first to seventh defendants' costs on an indemnity basis primarily because of the way in which the claimant proceeded, we consider that the proportion that Mr Dixon should pay should be reduced.

We do not consider the suggested upper limit of 10% adequately reflects Mr Dixon's responsibility and conduct, even taking into account the criticisms made of the way that BHIL conducted its case. We consider 35% would be appropriate.

86. Whilst we consider that Mr Wells also bears some responsibility, it seems clear that Mr Dixon was the prime mover. We shall not make any Bullock order against him, or against Mr Clarke.' [bold added]

[3] For completeness, r.44.2, entitled 'Court’s discretion as to costs', in full, is:

'(1) The court has discretion as to-

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

(2) If the court decides to make an order about costs-

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

(3) The general rule does not apply to the following proceedings-

(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including-

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5) The conduct of the parties includes-

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice DirectionPre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

(6) The orders which the court may make under this rule include an order that a party must pay-

(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment.

(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.

(8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.'

[3a] The analysis could have started with two earlier authorities:

(1) Mayer v Harte [1960] 1 WLR 770, CA ('Mayer'); and

(2) Goldsworthy v Brickell [1987] Ch 378, CA

[4] On the facts in King v Zurich Insurance Co [2002] EWCA Civ 598, Keene LJ (with whom Brooks LJ and Laws LJ agreed) held:

'On the facts of this case it could not be contended that the claimant had behaved unreasonably in suing both these defendants, the employers who had been responsible for him using vibrating power tools, particularly in light of the report which the claimant had from Professor Kester.'

[5] On the facts in Irvine v Commissioner of the Police for the Metropolis [2005] EWCA Civ 129 ('Irvine'), Court of Appeal (Peter Gibson LJ; Scott Baker LJ; Jacob LJ) dismissed the claimant's appeal against the first instance trial judge's refusal to make either a Bullock or Sanderson Order, in the claimant's favour.

Peter Gibson LJ described the factual situation, at paragraph 1:

'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 claimant had been a police officer, who are tripped upon carpet at a Police Station. He sued: (a) the first defendant Metropolitain Police Commissioner (paragraph 4); (b) the second defendant Carillion Plc, who managed the first defendant's property services (paragraph 4); (c) Town and Country Flooring Ltd, a sub-contractor, who repaired the stair carpet 6 weeks before the accident (paragraph 5).

The first defendant had suggested the claimant redirect his claim to the second defendant (paragraph 5)

Peter Gibson LJ set out why, in respect to the appeal in relation to each of second defendant and third defendant respectively:

(1) as to the second defendant, Peter Gibson LJ said, at paragraphs 34 to 41:'

'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.

Secondly, 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.

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

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

Fifthly, although the first defendant encouraged the claimant to sue the second defendant instead of himself in the letter of August 30, 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 para.6 of the amended particulars of claim, the claimant pursued the claim against the second defendant until judgment.

Sixthly, 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 para.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.

Seventhly, 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.'

(2) as to the third defendant, Peter Gibson LJ said, at paragraphs 42 to 50:

'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.

Secondly, 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.

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

Fourthly, while a particularised case against the third defendant was put forward in the amended particulars of claim, the judge in paras 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.

Fifthly, 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 March 21, 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.

Sixthly, 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 [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.

Seventhly, 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.'

[6] In Moon v Garrett [2006] EWCA Civ 1121 ('Moon'), Waller LJ (with whom Jacob LJ and Sir Peter Gibson agreed), dismissed the first defendant's appeal against (what appears to be) a Bullock Order. The claimant (Mr Moon) had suffered personal injury while delivering materials to a building site. He fell into a unfenced pit. The claimant brought claims against:

(1) the building site owner (first defendant, Mr Garrett) successfully, 

(2) his original employer (CH Kedal & Sons) and successor employer (Travis Perkins), the second and third defendants, unsuccessfully.

In dismissing the appeal, Waller LJ said this, at paragraphs 40 to 45:

'In the instant case, when solicitors for Mr Moon sent a letter of claim to Mr Garrett, dated January 2, 2002, they received a response by letter dated January 4, 2002, which seemed to indicate that if court proceedings were taken the employers would be likely to become involved either as co-defendants or as a party joined by Mr Garrett. Furthermore, the letter indicated the way in which Mr Garrett was likely to fight the claim. The last two paragraphs of that letter read:

“This letter is being copied to CHL Kendall because it is relevant to them. As an observer, there are criticisms to be made of both parties, and no doubt if this matter proceeds to Court, negligence will be directed to both Mr Moon and CHL Kendall. As in all such cases, accidents are not as per definition ‘by chance’ but are usually caused by avoidable human errors of judgment, with usually no single cause, but rather a combination of reasons resulting in the ultimate event.

I trust that this statement will be of help, and I can confirm that for your purposes I do not hold any property insurance, and therefore please do not expect there to be a pot of gold at this end of Horsecombe Vale. I will promise you that I will vigorously defend my position, and although I have a Lawyer brother, I will not resort to using his services or any of the other Lawyers I use for my business affairs. Just accept that I am a man of straw, and there is no money within your reach.”

This last paragraph is not one of which Mr Garrett was proud, which may explain why originally in our Court of Appeal bundle a copy of this letter appeared with a different last paragraph.

When proceedings were commenced on behalf of Mr Moon the employers were not initially joined as parties. Furthermore Mr Garrett did not seek to join them, but just prior to the expiration of the limitation period Mr Moon's advisors joined Mr Moon's employers. In the points of claim they alleged breaches of health and safety regulations. It cannot be said that those were frivolous allegations. Indeed the judge in his judgment appears to have decided the case in favour of the employers on the basis that the injury was not caused by any breach of the regulations but by the absence of a fence round the pit.

Once the employers were joined, Mr Garrett in his defence did seek to adopt such allegations as had been made against the employers.

It seems to me that this is not a case where it can be said that the judge exercised his discretion on any wrong basis. He took into account the way in which Mr Garrett had responded to the claim made on behalf of Mr Moon, both in laying blame on the employers and in making the threat in the last paragraph of the letter.

It seems to me the judge was right to take the view that it was reasonable to join the employers. They may not have been liable in the alternative in the one sense of that word, but they were a party who might have been found liable, and were a party on whom Mr Garrett did seek to place the blame.'

[7] In Choi v Park [2020] EWHC 413 (QB) ('Choi'), Ms Margaret Obi (sitting as a Deputy High Court Judge) on 28.2.20, said, at paragraph 5:

'[Counsel for the claimant] referred the Court to the judgment of Sir William Blackburne in British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd [2012] EWHC 3679 (Ch) (at paragraph 30) where the law in relation to Sanderson orders was summarised as follows:

"30. Another issue […] is concerned with the circumstances in which it is appropriate to order one defendant, against whom the claimant has succeeded, to pay the costs of another defendant, against whom the claimant has failed and, in particular, the circumstances in which it is appropriate to order the unsuccessful defendant to pay the successful defendant's costs directly as opposed to those cases where it is appropriate to order the claimant to pay them leaving the claimant to recover them (if he can) from the unsuccessful defendant, so that, in effect, the unsuccessful defendant pays the successful defendant's costs but does so indirectly as part of the claimant's costs of the action. There was once much learning on the topic and the forms of order to which it gave rise were known as Sanderson (in the case of direct) and Bullock (in the case of indirect) orders. (See Sanderson v Blyth Theatre Company [1903] 2KB 533 and Bullock v London General Omnibus Co. [1907] 1 KB 264) As Mr Moody-Stuart explained, the jurisdiction to make such orders survived the advent of the CPR , being permitted under Part 44.3 , and was discussed in Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 at [22] to [31]. I think it is sufficient only to refer to what was said in Moon v Garrett [2006] EWCA Civ 1121 by Waller LJ who, after considering the authorities including Irvine, summarised the jurisdiction as follows (at [38] and [39]):

"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."'

[8] In Choi v Park [2020] EWHC 413 (QB) ('Choi'), Ms Margaret Obi (sitting as a Deputy High Court Judge), on the facts, and answering these questions, found:

(a) '...taking all relevant factors into account, it was not reasonable for [the claimant] to bring a claim against [SD]. Therefore, it was also not reasonable for to him to pursue the claim.' (paragraph 12)

The deputy High Court Judge then said 'Although the above conclusions are sufficient to deal with the application for a Sanderson order' (paragraph 13), she would go on to answer the second question.

(b) 'Even if I am wrong in my analysis...it would still be unjust to order [USD] to pay the costs of that failed endeavour.' (paragraph 14)

The Judge concluded that 'It would be wrong in principle and wrong on the facts, to order [USD] to pay any part of those costs.' (paragraph 17).

For those interested to read the reasoning:

(a) On the first question (paragraphs 12 and 13):

'i. Uncertainty - [the claimant] was in no doubt that it was [USD] alone who was responsible for the false statements. The absence of any doubt, of course, explains why a claim for misrepresentation was not pleaded against [SD]. The unlawful means conspiracy claim against both defendants was, as I stated in my substantive judgment, ' unpromising '. I accept that at the outset [the claimant] knew that he had paid significant sums of money directly into [SD's] bank account. However, that was the only evidence which linked [SD] to the unlawful actions of [USD] and, in and of itself, was not a sufficient basis for a claim to be brought against her. Furthermore, by the time the defence was served there was no indication that the prospects of the claim were likely to improve. An unlawful means conspiracy occurs were: (i) two or more persons act together; (ii) to take action which is unlawful; (iii) with the intention to damage a third party (or they can reasonably foresee that their actions may cause damage to that third party); and (4) the third party suffers damage as a result. Where misrepresentation is relied on as the unlawful means, in order to be found proved, there must be an agreement that a misrepresentation will be made. There was no evidence that [SD] knew that the putative representations were false and no evidence that she entered into an agreement with [USD] that a misrepresentation would be made. The evidential hurdle was high, and [the claimant] had little prospect of clearing it. No doubt [the claimant] recognised that the evidence against [SD] was weak and speculative, which is why (as I found) he attempted to bolster the case against her by stating that she was present at the meeting which took place at the Costa Coffee in New Malden on 10 August 2016, when he knew that was not true.

ii. Blame - Until shortly before the commencement of the trial [USD] and [SD] were represented by the same legal representative which clearly indicated that there was no conflict between them. It was therefore unsurprising that at no point during the interlocutory stages did they blame each other for the events which took place. As in all cases, there was a possibility that discrepancies could arise following disclosure and cross examination, but the prospect of this happening was low.

iii. Reasonableness Generally - [the claimant] and his legal team were required to take a close look at the basis on which they were seeking to bring the claim against [SD]. They had to make an assessment, on the basis of the information available to them, as to whether or not they were likely to succeed against her. The case against [SD] was weak from the outset and was not pursued with enthusiasm and commitment when compared with the pursuit of the claim against [USD]. In my judgment this is a case where [the claimant] and his legal team should have taken a view at the outset, or at least at the early stages of the proceedings, as to the prospects of success against [SD]. A reasonable claimant would have concluded at the early stages that the claim was so weak that it should no longer be pursued.'

(b) On the second question (paragraphs 14 to 16):

'14. Even if I am wrong in my analysis, as set out above, and it was reasonable for [the claimant] to bring and pursue a claim against [SD], I consider that it would still be unjust to order [USD] to pay the costs of that failed endeavour. The injustice arises principally out of the same matters identified at paragraph 12 above; in particular, (a) the overall weakness of the case against [SD]; (b) [USD] and [SD] did not blame each other; and (c) [the claimant's] attempt to bolster the case against [SD] by falsely asserting that she was present at the meeting which took place on 10 August 2016.

15. In my judgment, the most significant matter that demonstrates the injustice of making a Sanderson order is that [SD] was not involved in the misrepresentation and there was no evidence that she was involved in an agreement with [USD] that he would make false statements to [the claimant]. It would be unjust to order [USD] to pay the costs of the unsuccessful pursuit of allegations against [SD], in circumstances where the defence responses to the issues which related to her, have been demonstrated to be correct as a matter of fact. To conclude otherwise would, in effect, penalise [USD] in costs for being proved right. Such a result should not arise from the proper exercise of the Court's discretion.

16. Accordingly, taking all the relevant facts and matters into account, I consider that, even if [the claimant] had acted reasonably by bringing a claim against [SD], it would be unjust in any event to visit the costs of the unsuccessful claims upon [USD].'

[9] In Heynike v 00222648 Ltd (formerly Birlec Ltd) [2018] 3 WLUK 332, HHJ Curran QC (sitting as a Judge of the High Court) on 14.3.18 said, under the heading 'Costs', at paragraphs 25 to 28:

'There was little if any dispute over the applicable principles. In Irvine v Commissioner of Police for the Metropolis and Others [2005] EWCA Civ 129 Peter Gibson LJ, after the introduction of the CPR , said the power of the court to make a Bullock order remained a useful one:

"… 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."

The Court of Appeal in Dixon and Another v Blindley Heath Investments Ltd and Others [2016] 4 Costs L.R. 627, followed the principles in Irvine, and a number of matters were highlighted:

i) It was not critical that the claimant was suing two or more defendants for the same loss, being unable to determine which of them has caused it. It might very well be the classic case for such an order, but was not a necessary condition. ii) Nor was it necessary that one of the defendants sued should have blamed another. That was a relevant consideration but it was not a determinative one.

iii) It was necessary to be conscious of the need for caution in the application of the principle, lest in its application to avoid injustice to one it cause greater injustice to another, and encourage multiplicity of defendants; but that is a matter of careful application rather than excessive restriction.

In the recent case of Jabang v. Wadman [2017] EWHC 1993 (QB); [2017] 4 Costs L.R. 807 , consideration was given to the issues of recovery of a claimant's costs in full, on the one hand, and payment by an unsuccessful defendant of a successful defendant's costs. It was held that part of the purpose of a Bullock order is that the Court's concern, in relevant circumstances involving multiple defendants, may properly be that the value of a claimant's overall success ought not to be eroded by any unwarranted adverse order for costs. Such an erosion may result from an order that the claimant meet his own costs of the unsuccessful claims. No case had been cited to the court where a Bullock order had been made and which had not required an unsuccessful defendant to pay the claimant's costs of the claims against the successful defendants.

On the basis of those principles...'

[10] In McDermott v Inhealth Ltd [2018] EWHC 1835 (QB); [2018] 7 WLUK 439 (QBD)('McDermott'), Lavender J said, at paragraph 35 to 44:

'35. This case concerns an appeal against the judge's exercise of his discretion in relation to costs. The Claimant accepted, by reference to the judgment of Sir Murray Stuart-Smith in Adamson v Halifax Plc [2003] 1 W.L.R. 60, that before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.

36. Factors relevant to the court's discretion as to costs are set out in CPR 44.2(2) and (4). In cases where there are two or more defendants, the Court can order that one defendant bear another defendant's costs, by means of a Bullock or Sanderson order. The law relating to Bullock orders was considered by the Court of Appeal in Irvine. The overarching principle was stated as follows by Peter Gibson LJ:

"… 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."

37. Relevant considerations include:

(1) The reasonableness of the Claimant's conduct.

(2) Whether the parties are blaming one another.

(3) Whether the claims against the different defendants are alternatives to one another.

(4) Whether the claims against the different defendants are independent.

38. I have already dealt with the reasonableness of the Claimant's conduct. It was reasonable for him to bring claims against all three Defendants, and it was reasonable for him to discontinue his claims against the First and Third Defendants once he received an admission of liability from the Second Defendant.

39. As for blame, it is not a necessary condition for a Bullock order that the defendants were blaming one another: see Besterman v British Motor Cab Co Ltd [1914] 3 K.B. 181. But it remains a relevant consideration: see Irvine at paragraph 31. In the present case:

(1) It is acknowledged that the Second Defendant was blaming the Third Defendant. The Second Defendant was also saying that, if the GE scan images were sent to it by the Third Defendant, they were provided to the First Defendant and the First Defendant was responsible for the fact that he did not review them.

(2) The First and Third Defendants, while not expressly blaming the Second Defendant for the design of the protocol, sought to rely on the protocol as excusing them from liability to the Claimant.

40. As for the question whether there were alternative claims, what Peter Gibson LJ said in paragraphs 24 to 26 of his judgment in Irvine has to be seen the context that, in a case such as Besterman, where the Claimant was injured in a collision between a taxi and a bus, one possible outcome is that both the taxi and the bus were being driven negligently. If that was the conclusion reached after a trial, a Bullock order would probably be unnecessary, since the Claimant would have succeeded against both defendants. But if one defendant admits liability before trial, the possibility that his co-defendant might also have been liable is not an automatic bar to the making of a Bullock order. See also paragraph 39 of Waller LJ's judgment in Moon v Garrett [2006] EWDA Civ 1121.

41. As for the independence of different claims, Peter Gibson LJ referred in paragraphs 27 to 29 of his judgment in Irvine to the decision of the Court of Appeal in Mulready v JH & W Bell Ltd [1953] 2 All ER 215. He summarised the facts of Mulready as follows:

"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."

42. In Mulready, Lord Goddard said as follows:

"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."

43. [Counsel for the Respondent/Second Defendant] submitted that the district judge was right to find that the protocol claim was an independent cause of action in this sense. He submitted that the protocol claim would have been available to the Claimant whether or not the Third Defendant took the GE scans, that it did not arise out of the same facts as the scans claim and that it was unaffected by the factual dispute as to what became of the GE scan images.

44. In my judgment, however, the protocol claim and the scans claim were not, in Lord Goddard's words, "perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other." A number of factors indicate that the two claims were sufficiently linked to make a Bullock order appropriate:

(1) The Second Defendant was a defendant to both claims. It was responsible both for the protocol and for arranging the Claimant's scans.

(2) Both claims concerned the allegation that one or other of the Defendants was responsible for the fact that the Claimant's aneurysm was not identified by means of a GE scan.

(3) The protocol was relied on by the First and Third Defendants in their defence to the scans claim.

(4) In resisting both claims, the Second Defendant sought to blame the other two Defendants.'

Lavender J in McDermott concluded that the appeal should be allowed. He reasoned, at paragraph 45:

'It follows that the district judge was wrong to treat the protocol claim as an independent claim in the Mulready sense. Looking at the matter afresh, it seems to me appropriate to order that the Second Defendant pay all of the costs which the Claimant was liable to pay to the First Defendant and all of the Claimant's own non-generic costs of his action against the First and Third Defendants. The Claimant acted reasonably in suing these three defendants, who were blaming one another, and it would not be unjust to order the Second Defendant to bear costs which were reasonably incurred in consequence of the Second Defendant's negligence.'