Bullock orders are not limited to those cases where the claimant does not know which party is at fault, the High Court has ruled.
In Jabang v Wadman and Ors  EWHC 1993 (QB), the claimant succeeded in his claim against the second defendant, but not against the third, fourth and fifth defendants. He accepted that he should be ordered to pay the costs of the third and fourth defendants, but argued for a Bullock order in his favour that would mean the second defendant indemnify him for his liability to pay those costs.
Such an order – dating back to the case of Bullock v The London General Omnibus Company  1 KB 264 – was explained succinctly by Lord Justice Keane in King v Zurich Insurance Company  EWCA Civ 598.
He said: “The judge had to deal with a not uncommon situation where a claimant was unsure which of the defendants would be liable for his injury and where – in the event – he succeeded against one but failed against the other. In the days before the Civil Procedure Rules came into effect, this situation would often be met by a Bullock order… ordering the plaintiff to pay the successful defendant’s costs but ordering the unsuccessful defendant to pay those costs over to the plaintiff.
“In cases where the plaintiff was legally aided, the order would often court be a Sanderson order… whereby the unsuccessful defendant was ordered to pay the costs of the successful defendant directly. These decisions reflected the approach of the courts, namely that 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.”
In Jabang, the second defendant accepted that Bullock orders could still be made but submitted that it would not be fair to make one in this case. This was not a case where the claimant had to sue more than one defendant because he was unsure which of them had caused his loss.
He relied on what Griffiths Williams J said in Whitehead, David McLeish v Barrie Searle, Hibbert Downall and Newton (a firm)  EWHC 2046 (QB): “In my judgment, they [Bullock and Sanderson orders] are appropriate nowadays only in those cases where the claimant does not know which party is at fault.”
However, Nicol J said there were “a number of difficulties with that submission”. First, the underlying judgment in Whitehead, in which the claimant succeeded against one defendant, was reversed by the Court of Appeal. “I accept that this did not directly affect the judgment on costs… but it did mean that there would have been no cause for the Court of Appeal to review Griffiths Williams J’s statement of principle.”
Nicol J continued that this statement of principle “sits uncomfortably” with what Lord Justice Waller said in Moon v Garrett  EWCA Civ 1121. Waller LJ said: “It seems to me… 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.
“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 are 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.”
This case was cited to Griffiths Williams J, the judge observed, but his ruling did not explain how his statement was consistent with it.
“In any case, Griffiths Williams J was, as he said, dealing with a situation ‘when both defendants succeeded in defending a large part of the claim’. That is not the case here.”
Nicol J concluded that a Bullock order was appropriate for various reasons, including that the claims against the third and fourth defendants were not unreasonable, nor were they alternative claims or a case where one defendant was blaming another. He also accepted the argument that if the second defendant had accepted his responsibility at the outset, there would have been no claim brought against the other defendants.
“Weighing all the factors, it seems to me to be fair, right and consistent with the overriding objective that the second defendant should ultimately bear the costs of the third and fourth defendants.”