Kerry Underwood

COSTS APPEAL ALLOWED: JUDGE ERRED IN APPLICATION OF BULLOCK PRINCIPLES

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In McDermott v Inhealth Ltd [2018] EWHC 1835 (QB) (19 July 2018)

the Queen’s Bench Division of the High Court allowed the claimant’s appeal against “what was in effect a limited Bullock order”.

Where there are several defendants in a case, one successful and the other(s) not, a Bullock order usually requires a claimant to pay the successful defendant’s costs, but allows the claimant to recover those costs from the unsuccessful defendant(s).

Here the court reviewed the Bullock principles.

The claimant brought personal injury proceedings, consisting of two claims, following the defendants’ failure to diagnose his brain aneurysm.

The first claim alleged negligence against the second defendant in the design of the protocol used for the scanning process.

The second claim, against all three defendants, a scans claim, arose because the third defendant carried out a “GE scan” which showed the aneurysm, but the first defendant did not report this to the claimant.

There was an unresolved issue regarding which defendant was responsible for this omission.

The second defendant submitted to judgment on the protocol claim and the claimant discontinued against the third defendant with no order for costs, and against the first defendant.

The lower court considered the Bullock principles, but concluded this was not a classic Bullock case because the claimant succeeded on a free-standing claim against the second defendant in its own right, as in

 

Mulready v Bell [1953] 2 All ER 215

 

where a Bullock order was set aside on appeal.

The claimant was ordered to pay the first defendant’s costs.

The second defendant was ordered to pay the costs which the claimant was liable to pay to the first defendant and the claimant’s own non-generic costs of his action against the first defendant and the third defendant, but only post-1 December 2016, the lower court finding it unreasonable for the second defendant not to have admitted liability by that date.

The High Court held that the protocol claim and scans claim were not “perfectly independent causes of action … where the breaches of duty alleged are in no way connected …”

Mulready and the lower court erred in treating them as such.

The second defendant was a defendant to both claims and responsible for the protocol and arranging the claimant’s scans.

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 through a GE scan.

The first defendant and the third defendant relied on the protocol in defending the scans claim and, in resisting both claims, the second defendant sought to blame the first defendant and the third defendant.

The High Court substituted an unrestricted Bullock order.

 

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Written by kerryunderwood

September 3, 2018 at 8:10 am

Posted in Uncategorized

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