A costly harvest: Case focus on the costs risks to defendants in multi-defendant claims

A recent decision has underscored the complexities and potential cost implications for defendants involved in multi-party cases. 

In this article, Joanna Wallace and Anna Gledhill explain what this could mean for healthcare professionals, organisations and insurers, and the case strategy to adopt.

Pashamov v Taylor & Edward Vinson Ltd case analysis

Background

Mr Pashamov was employed as a fruit picker on the second defendant’s (D2) farm. At the time of the accident he had alighted the bus on which he was travelling back to his accommodation (both of which were owned or operated by D2), to invite his colleagues to join him, when he was hit by the first defendant’s (D1) car. 

He suffered significant injuries as a result and subsequently brought a claim against both defendants.

Decision

At trial, the Deputy High Court Judge could find no fault on behalf of D1 (in front of whose vehicle the claimant was said to have stepped), but did find that D2 was partially (65%) to blame for the accident.

This was on the basis that Mr Pashamov was said to be carrying out tasks at the direction of and for the benefit of his employer when calling others to the bus, which were held to be incidental to his employment even though the accident happened after his shift. 

Costs 

The question then arose as to costs. 

The starting point was that the claimant was entitled to his costs of succeeding in the claim against the second defendant; and the first defendant was entitled to his costs against the claimant for succeeding in his defence. 

Qualified one way costs shifting (QOCS), which generally protects an unsuccessful claimant against having to pay the costs of a successful defendant, applied.

The question for the court was therefore whether or not a different order should be made in relation to:

(a) The costs payable by the claimant to the first defendant.

(b) The costs the claimant had incurred in pursuing the first defendant.

(c) Both. 

Costs principles 

The judge identified the key principles in the exercise of his discretion (which both parties accepted was a wide one), based on his analysis of Moon v Garrett as:

• If the claimant has behaved reasonably in suing both the first defendant and the second defendant, it would be harsh if he ends up paying the costs of the first defendant.
• If it was not reasonable to join the first defendant because the cause of action was practically unsustainable, it would be unjust to make the second defendant pay the costs of the first defendant.
• 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.
• The fact that claims were not truly alternative does not mean that the court does not have the power to order one defendant to pay the costs of another.

Costs discussion 

The judge concluded that it was reasonable for the claimant to pursue the claim against D1. There was a hard fought battle between them at trial, with the benefit of reconstructive expert evidence, and it seems that the point could have gone either way on the day. 

The judge accepted that D2 did not at any point seek to blame D1 - although, as the judge quite rightly stated, they did not need to, as the claimant had already included them in the proceedings.

The judge did not, therefore, put a huge amount of weight on this point. He also made the observation that while the battle “raged” between the claimant and D1, the outcome would undoubtedly have been to the benefit of D2 in either, absolving them of liability entirely or, at the very least, considering the extent to which the claimant contributed to the accident himself (and which, ultimately, D2 benefited from in the conclusions reached). 

The judge also accepted that the proceedings were not brought “in the alternative” (there were rather different causes of action against both D1 and D2), although they did relate to the same material facts and it was right that they were heard together. 

Ultimately, however, the judge did not find that the latter points weighed heavier than the former. He was also extremely sympathetic to the points taken by D2 that if they were able to have any chance of recovering their costs against the claimant (and this was a big “if” - there would have to be a second trial on quantum for QOCS to be defeated), it would not potentially be for quite some time. 

He, therefore, not only ordered D2 to pay D1’s costs, but also the claimant’s costs of suing D1. 

Costs analysis 

In some respects, D2 could perhaps feel a little aggrieved by the result. The litmus test for these applications has historically been thought to be the amount of blame each defendant has placed upon the other, which neither defendant really sought to do here. 

On this occasion, however, the judge placed less weight on these factors, instead preferring to focus upon whether or not it was reasonable for both defendants to be joined by the claimant and where fairness would ultimately lie, depending on what findings were made during the trial itself. 

Some solace may be taken from the fact the judge reached his conclusion based on the particular facts and circumstances of this case but, ultimately, the underlying principle is that there will always remain a risk for an unsuccessful defendant to pick up the tab for the others involved in the case. 

What does this mean for healthcare professionals, organisations or insurers? 

While, on the face of it, the judge’s decision in this particular instance appears to turn on the specific facts of the case (and is not, therefore, necessarily self-sufficient to constitute any sort of binding authority for how one should expect the court to determine the point in any future cases), it does perhaps highlight (absent an appeal from D2) the huge discretion afforded to judges on issues of costs, and the risks faced of being on the receiving end of something similar. 

When a patient has issues with their healthcare treatment, it is common for a healthcare professional or trust to find themselves named as a co defendant in a claim brought by a claimant against multiple defendants. 

A patient often receives treatment from various providers, such as different dentists, or has been referred across different trusts or healthcare settings, including private providers alongside NHS care. Often a patient will see their GP and then move on to trust care, meaning there is a risk of multiple defendants being named in a claim regarding their treatment. 

The judgment highlights the complexities and risks involved when outcomes are mixed, meaning that some defendants might be found liable while others are not. This can lead to intricate decisions regarding costs allocations and liability. 

Such decisions underscore the importance of thorough risk assessment and strategic legal planning. It is crucial to consider all potential risks, and we work with our insurer and healthcare provider clients, as well as individuals and their indemnifiers, to provide expertise and advice, working together towards appropriate resolutions, whether through early settlement, successful strike outs, discontinuances or trials.