This was an appeal against a costs order made by District Judge Salmon in the Birmingham District Registry on 1 September 2017 following a personal injury action brought by Darren Richard McDermott (“the Claimant”).
Background
The Claimant was an accomplished professional boxer. Unbeknown to him, he had an aneurysm in his brain. If this had been known, his annual licence to box would not have been renewed, for his own safety. He was required by the British Boxing Board of Control to undergo annual brain imaging as a condition of the renewal of his licence. He did this in March 2010.
The imaging was arranged by the Second Defendant, which then operated the London Imaging Centre.
The imaging was carried out by the Third Defendant.
The resulting scan images were to be sent to the Second Defendant and provided by the Second Defendant to the First Defendant, who was to review them.
This process took place pursuant to a protocol, which was devised by the Second Defendant.
Dr Chandrashekar Hirjibhai Thakkar was the Second Defendant’s clinical lead for neuroradiology. He was responsible for ensuring that the protocol was appropriate. The protocol did not require what is known is an axial gradient echo or “GE” scan. That is the type of scan which would have revealed the existence of the Claimant’s aneurysm.
Nevertheless, the Third Defendant did conduct a GE scan. The GE scan images showed the aneurysm, but the First Defendant did not report the existence of the aneurysm.
There was an unresolved issue whether this was because the Third Defendant did not send the GE scan images to the Second Defendant, the Second Defendant did not provide the GE scan images to the First Defendant or the First Defendant did not identify the aneurysm from the GE scan images.
The Claimant continued with his boxing career. In August 2010 he received a blow to the head whilst sparring. This caused the aneurysm to bleed, resulting in brain damage and significant cognitive deficits.
The Proceedings
The Claimant made what was referred to as the “protocol claim” against the Second Defendant. This was an allegation that the Second Defendant was negligent in the design of the protocol, in that the protocol ought always to have included a requirement for a GE scan.
The Claimant also made what was referred to as the “scans claim”. This consisted of allegations that:
(a) the Third Defendant was negligent in not sending the GE scan images to the Second Defendant (and the Second Defendant was vicariously liable for the negligence of the Third Defendant); alternatively
(b) the Second Defendant was negligent in not providing the GE scan images to the First Defendant; alternatively
(c) the First Defendant was negligent in failing to identify the aneurysm from the GE scan images (and the Second Defendant was vicariously liable for the negligence of the First Defendant).
The Defendants each served defences in July 2015 denying liability. In particular:
(1) The Third Defendant alleged
(a) that it sent the GE scan images to the Second Defendant; alternatively
(b) that it did not owe any duty of care in relation to the GE scan images because it had not been engaged to undertake a GE scan.
(2) The Second Defendant:
(a) denied that the GE scan images were sent to it; alternatively,
(b) alleged that, if it had received them, it would have provided them to the First Defendant; and
(c) alleged that any duty of care which it owed was limited to complying with the protocol.
(3) The First Defendant denied that he owed the Claimant a duty of care and also contended that:
(a) the GE scan images were not sent to him; alternatively
(b) if they had been, he would not have reviewed them, and would not have been under a duty to review them, because this was not required by the protocol.
In October 2016 an expert radiologist, Dr Norman S McConachie, instructed by the Second Defendant expressed the opinion that the First Defendant was negligent if he was sent the GE scan and did not look at it. The Second Defendant was seeking to blame the First Defendant if (contrary to the Second Defendant’s primary case) he saw the GE scan images.
Settlement
The Second Defendant submitted to judgment on the protocol claim in April 2017. As there was no longer any practical benefit from pursuing the Claimant’s claims against the First and Third Defendants, on 18 May 2017 the Claimant discontinued his claim against the Third Defendant with no order as to costs, and against the First Defendant with costs to be determined.
Costs were determined by District Judge Salmon on 18 June 2017 when he made the following order:
(1) The Claimant should pay the First Defendant’s costs of the action.
(2) The Second Defendant should pay:
(a) the costs which the Claimant was liable to pay to the First Defendant; and
(b) the Claimant’s own non-generic costs of his action against the First and Third Defendants, but only in respect of the period after 1 December 2016.
This was in effect a limited Bullock order.
The district judge’s basis for limiting the Second Defendant’s liability to pay the Claimant’s own non-generic costs of his action against the First and Third Defendants to the period after 1 December 2016 was his finding that it was unreasonable for the Second Defendant not to admit liability for the protocol claim by 1 December 2016, having obtained and considered Dr McConachie’s report.
The Claimant contended that the judge should have ordered the Second Defendant to pay all of his non-generic costs of its action against the First and Third Defendants and all of the costs which the Claimant was liable to pay to the First Defendant.
MR JUSTICE LAVENDER:
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 v Commissioner of Police for the Metropolis [2005] EWCA Civ 129]. 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. Mr Smith 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.
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. Accordingly, I grant permission to appeal and allow the appeal.
Toby Moreton
