Decision shows no hard rules for defendants' costs

Moon v Garrett and others (Court of Appeal - 28 July 2006)

A claim was brought by Mr Moon against his employer and Mr Garrett as a result of a fall at Mr Garrett's property. At the trial, Mr Garrett was held liable but the claim against Mr Moon's employer was dismissed. Mr Garrett was ordered to pay Mr Moon's costs and the costs of the other defendants. Mr Garrett appealed the decision on liability - as it was based on the Occupiers Liability Act 1957 - and the Sanderson costs order.

The appeal on liability failed. In respect of the Sanderson order, the Court of Appeal considered the judge's reasons for applying the order, that being Mr Garrett's refusal to admit liability, his allegations towards Mr Moon's employers and his statement with regards to his inability to pay any damages. The Court of Appeal held that the trial judge had exercised his discretion correctly and also dismissed the appeal on costs.

COMMENT: There are no hard and fast rules as to when it is appropriate to make either a Sanderson costs order (compels an unsuccessful defendant to pay the costs of a successful defendant directly) or Bullock costs order (claimant is ordered to pay the successful defendant's costs but is allowed to include these in its overall costs recoverable from the unsuccessful defendant). When judges exercise their absolute discretion, they must consider whether or not the claimant had reasonably brought a claim against more than one defendant (made more reasonable if one of the defendants raised allegations against another). If they have considered this, then it would not be unreasonable to require one of the defendants to pay the costs of the other defendant(s) as well as the costs of the claimant. - Susan Kendry, BLM Manchester.

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