Bullock and Sanderson orders: costs with more than one defendant

Claimants often sue more than one defendant because it is genuinely unclear who is responsible. If the claimant wins against one defendant but loses against the other, the ordinary rule would mean the claimant pays the costs of the defendant who won. That can seem unfair where it was the unsuccessful defendant’s conduct, or an argument that blamed the other defendant, that made it reasonable to sue both.

The court’s discretion under CPR 44.2 allows it to shift that burden. Two well-established forms of order do so: the Bullock order and the Sanderson order.

A Bullock order takes its name from Bullock v London General Omnibus Co [1907] 1 KB 264. The claimant is ordered to pay the successful defendant’s costs, and the unsuccessful defendant is ordered to reimburse the claimant for those costs, in addition to paying the claimant’s own costs.

The successful defendant therefore looks to the claimant for payment. If the unsuccessful defendant cannot pay, the claimant bears the loss.

A Sanderson order, from Sanderson v Blyth Theatre Co [1903] 2 KB 533, orders the unsuccessful defendant to pay the successful defendant’s costs directly. The claimant drops out of that payment chain.

That form of order is commonly preferred where the claimant is insolvent, legally aided or otherwise unable to pay, because otherwise the successful defendant might recover nothing. Conversely, if the unsuccessful defendant is the party likely to be unable to pay, a Sanderson order shifts that risk onto the successful defendant, which may make a Bullock order more appropriate.

The threshold question is whether it was reasonable for the claimant to sue both defendants. The court will look at how the case developed, including whether the defendants blamed each other, whether the claims against them were connected, and what was known when they were joined. In Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 the Court of Appeal emphasised that reasonableness of joinder is necessary but not, on its own, decisive; the overall question remains what is just.

If joinder was reasonable, the court then considers which form of order best reflects the parties’ positions, including who is able to pay. The court can also make a partial order, for example shifting only a proportion of the successful defendant’s costs.

Where a Bullock or Sanderson order is a possibility, the claimant’s team should keep a clear record of why each defendant was joined and of the defendants’ pleaded positions. That record often decides the application.

On assessment, separate bills or clearly divided parts of a bill help where costs relate to different defendants. A bill that mixes work against both defendants without explanation invites argument about apportionment.