Suing multiple defendants? Consider a ‘Bullock’ costs order

31st August 2016

It is rare for the Court of Appeal to interfere with a decision on costs, but it did so in the recent case of Blindly Heath Investments v Dixon and others [1].  In doing so, the court flagged a costs opportunity for claimants suing multiple defendants. Malcolm Simpson explains.

Tactical and procedural considerations in complex, multi-party cases can be a minefield. On the one hand, the rules against re-litigation require that claimants should consider joining additional defendants to proceedings so as to avoid advancing claims in future which should, for reasons of public interest and efficient use of court resources, have been made in earlier proceedings; but on the other hand, for cost and case management reasons, joinder of claims against multiple defendants is not something that the court encourages, save with great caution [2].  In reality, though, there are circumstances in which a claimant does not know which of two or more defendants to sue and/or multiple defendants may be jointly and severally liable for the same damage.  In those circumstances it is likely to be reasonable for a claimant to sue multiple defendants.

Where there are several defendants, a claim may succeed against one or more of them and may fail against the other[s]. If so, the claimant may be ordered to pay the costs of the successful defendant[s] but it may be able to obtain an order – known as a ‘Bullock order’ – requiring the unsuccessful defendant[s] to contribute to the costs that the claimant is liable to pay.

The typical scenarios in which a Bullock order may be made include where the defendants blamed each other and/or where the claimant’s causes of action against the defendants were connected or for the same loss. However, the Blindly Heath case has demonstrated that Bullock orders may be obtained more widely, even in a case where a claimant runs inconsistent arguments against different defendants.  Whether or not to grant a Bullock order is a matter of discretion for the court and the discretion may be exercised in any case to avoid an unjust result.  In deciding whether to grant such an order, the court will look at all of the circumstances of the case – in particular whether it was reasonable for the claimant to pursue particular defendants.

WM Comment

In Blindly Heath, the Bullock order meant that the claimant significantly mitigated the erosion to its damages that the costs award in favour of the successful defendant represented.

Prior to this case it was widely thought that Bullock orders would only be obtained in certain, fairly limited circumstances but the Court of Appeal has now clarified that that is not the case.

In any multi-party litigation, claimants will be well advised to consider carefully, at the outset, all possible parties who could be held liable for losses arising out of a particular or related set of facts, and who it should therefore seek to pursue in any one action. Following a pre-action protocol will be key to this process and will assist in establishing reasonableness in respect of joinder of parties, which will assist in any subsequent, cost-mitigating Bullock order application.

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[1] Blindly Heath Investments & Ors v Dixon & Ors [2016] EWCA Civ 548
[2] CPR 7.3 and Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129