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Irvine v Commissioner of Police for the Metropolis, Court of Appeal, 3 February 2005

10 February 2005
The issues

Costs – Sanderson Order – Whether Claimant Or First Defendant Should Pay Costs Of Other Two Successful Defendants

The facts

The Claimant was a police officer working for the First Defendant who tripped on a rucked stair carpet in the police station where he worked. He claimed against the Commissioner of Police. He also claimed against the management company which managed the property and against the Third Defendant which was a company who had been contracted by management company to repair the carpet. The Claimant succeeded against the Commissioner but failed against the Second and Third Defendants. The Trial Judge made an Order that the Claimant bear the costs of the Second and Third Defendants. The Claimant argued that the Trial Judge should have made an Order that the Commissioner of Police pay the costs of the Second and Third Defendants following – a Sanderson Order.

The Claimant relied on the fact that the Commissioner of Police had blamed the Second and Third Defendants.

The decision

The jurisdiction to make a Sanderson Order survived the introduction of the CPR. Costs were in the discretion and in deciding whether or not to make a particular costs order the Judge had to be guided by the overriding objective and Part 44.

The discretion was wide. Relevant factors to be considered were whether the claim against the successful Defendant had been made “in the alternative”; whether the causes of action had been connected with those on which the Claimant had been successful; and whether it was reasonable for the Claimant to join and pursue the claim against the successful Defendant. An important factor was whether one Defendant blamed another.

Whether it was reasonable to join that Defendant and to pursue the claim depend on the facts of the case and whether the Claimant could sustain such a claim.

In this case the claims in negligence were not connected to the Claimant’s successful claim which was one for breach of statutory duty. In respect of the Second Defendant the Claimant had not pursued it in the alternative and had never particularised the allegations of negligence. It was true that the First Defendant had encouraged the Claimant to pursue the Second Defendant but the Claimant had failed to establish that he had a sustainable claim against it.

The Judge found that the Claimant’s conduct in joining the Second Defendant was unreasonable. There was no error made by the Judge that would lead to a view that she had failed to exercise her discretion in the appropriate manner. In relation to the Third Defendant, it had only been sued in the alternative 15 months after the proceedings had been commenced and there had never been any cogent evidence produced to establish the pleaded negligence. The Judge had been entitled to conclude that it was not reasonable for the Claimant to join and pursue the Third Defendant either.

Appeal dismissed.

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