Jabang v Wadman & Ors, Court of Appeal - Queen's Bench Division, July 31, 2017, [2017] EWHC 1993 (QB)

Issuing Organization:Queen's Bench Division
Actores:Jabang v Wadman & Ors
Resolution Date:July 31, 2017
 
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Case No: HQ14CO3775

Neutral Citation Number: [2017] EWHC 1993 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017

Before :

MR JUSTICE NICOL

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Between :

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Mr D. Westcott QC and Mr R. Cartwright (instructed by Irwin Mitchell) for the Claimant

Mr S. Readhead QC and Joshua Munro (instructed by Brachers) for the 2nd and 5th Defendants

Hearing date: 24th July 2017

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JudgmentDecision on Costs

Mr Justice Nicol :

  1. I handed down judgment in this matter on 24th July 2017 - [2017] EWHC 1894 (QB) - `the substantive judgment'. The background to the case is set out in the substantive judgment and is not repeated here. The Claimant succeeded in his claim against the 2nd Defendant and, as against him, there will need to be an assessment of damages. The claims against the 3rd, 4th, and 5th Defendants were unsuccessful. Shortly before trial the Claimant had discontinued his claim against the 1st Defendant and, accordingly, my substantive judgment did not concern it.

  2. The Claimant accepted that he should be ordered to pay the costs of the 3rd and 4th Defendants (although, as will be seen, he sought an indemnity for that liability from 2nd Defendant). The 2nd Defendant accepted that he would have to pay at least most of the Claimant's costs of his claim against the 2nd Defendant. However, there was disagreement as between the Claimant on the one hand and the 2nd and 5th Defendants on the other as to the following issues:

    i) Whether the 2nd Defendant should have to pay all of the Claimant's costs of his claim against him or whether there should be a reduction to reflect the fact that, while I found that the 2nd Defendant had been negligent on 5th October 2011, I rejected the claim that the 2nd Defendant had also been negligent on 28th October 2011.

    ii) Whether the 2nd Defendant should have to indemnify the Claimant for his liability to pay the costs of the 3rd and 4th Defendant -whether a Bullock order should be made in the Claimant's favour - see Bullock v The London General Omnibus Company [1907] 1 KB 264.

    iii) Whether the Claimant should be able to recover from the 2nd Defendant his own costs incurred in making his unsuccessful claims against the 3rd and 4th Defendants.

    iv) What orders in principle should be made regarding the 5th Defendant's costs and the Claimant's costs of pursuing his unsuccessful claim against the 5th Defendant. The complication here is that the 2nd and 5th Defendants were partners in the same General Practice, the Heathfield Practice. They were represented at trial by the same solicitors and counsel. So far as these matters were concerned I was asked to give a decision in principle, allowing Mr Readhead QC and Mr Munro (as well as Mr Westcott QC) the opportunity to consider how such a decision could be practically and expressed in a court order.

    Whether the 2nd Defendant should have to pay only a proportion of the Claimant's costs of pursuing the claim against him?

  3. The Court, of course has a discretion as whether costs are payable by one party to another and the amount of any such costs - see CPR r.44.2.

  4. The starting point is the general rule that the unsuccessful party will be ordered to pay the costs of the successful party - CPR r.44.2(2)(a). There is no dispute that, as between the Claimant and the 2nd Defendant, the Claimant was the successful party.

  5. I recognise, as well that the rules expressly allow the Court to make some other order - r.44.2(2)(b). One of the matters which the Court must take into account is whether a party has succeeded on part of its case, even if that party has not been wholly successful - r.44.2(4)(b). In this case, Mr Readhead is right to say that the Claimant was not successful in his allegation that the 2nd Defendant had been negligent on 28th October 2011 as well as on 5th October 2011 - see substantive judgment [140].

  6. Although it is possible to make a costs order by reference to the costs incurred on particular issues - see r.44.2(6)(f), the Court is encouraged to consider instead ordering a party to pay a particular part of the successful party's costs - see r.44.2(6)(a) and r.44.2(7). Mr Readhead argues...

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