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                  Woodland v Swimming Teachers' Association and Others [2018] 3 Costs LR 469

                  [2018] 3 Costs LR 469

                  Bullock orders: appropriate costs order to make where a claimant has succeeded against some defendants and discontinued against others under CPR 38: apportionment of costs as between those defendants ordered to pay costs.

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                  Case 26

                  Woodland

                  v

                  Swimming Teachers’ Association and Others

                  [2018] 3 Costs LR 469

                  High Court of Justice, Queen’s Bench Division, Manchester District Registry

                  16 February 2018

                  Before:

                  HHJ Pearce

                  Headnote

                  Where the claimant had succeeded against two defendants and had served notice of discontinuance under CPR 38 against three defendants, it was appropriate to vary the default costs rule that the claimant would pay the costs of those defendants upon whom notice of discontinuance had been served. In reaching its decision, the court was required to balance the interest of the successful claimant in not having the award of damages eroded by a costs order, with the interest of a defendant in not being made to pay for decisions as to conduct of the case which were outside its control and capable of being misjudged. Such factors naturally led the courts to focus on the reasonableness of the claimant’s actions in joining the defendant in the first place and of not discontinuing at an earlier time than in fact was the case.

                  Taking these factors into consideration, it was appropriate to make no order as to costs as between the claimant and the third and fourth defendants (who were liable as to one third and two thirds of the damages respectively) as against the first defendant, but that those defendants would pay her costs as against the claim against the second defendant. As to the apportionment of those costs, it would just that they should be borne in the same proportion as the damages. Orders accordingly.

                  Cases Cited

                  Bullock v The London General Omnibus Company [1907] 1 KB 264

                  Downs v Chapelle [1997] 1 WLR 426

                  Irvine v Commissioner of Police for the Metropolis and Others [2005] 3 Costs LR 380; [2005] EWCA Civ 129

                  Javang v Wadman [2017] 4 Costs LR 807

                  King v Zurich Insurance Company [2002] EWCA Civ 598

                  Nelsons Yard Management v Eziefula [2013] EWCA Civ 235

                  Sanderson v Blyth Theatre Company [1903] 2 KB 533

                  Teasdale v HSBC Bank plc and Others [2010] 4 Costs LR 543; [2010] EWHC 612 (QB)

                  Walker v Walker [2011] Costs LR (Online Case) 187; [2005] EWCA Civ 247

                  Judgment

                  Notes

                  (i) The attribution of numbers to the parties who have been defendants in this claim at different times has varied and has been a source of confusion. In an endeavour to avoid further confusion, in this judgment I identify the defendants by name rather than by number.

                  (ii) Page references in bold within this judgment are to the pages in the hearing bundles.

                  (iii) I have appended to this judgment a chronology of the relevant procedural aspects of the claim, together where appropriate with notes.

                  Introduction

                  1. This is an application by the claimant for orders in respect of costs in consequence of the claim for damages for personal injuries.

                  2. Annie Woodland (who is now 27 years old, having been born on 2 January 1990) suffered brain injury as a result of an incident on 5 July 2000 when, at the age of ten, she nearly drowned during a swimming lesson arranged as part of her education at Whitmore Junior School, Basildon, Essex (“the school”). Essex County Council (“Essex”) was the relevant Local Education Authority in respect of the school at the time. The lesson took place at Gloucester Park Swimming Pool, Basildon, a building of which Basildon Borough Council (“Basildon”) was the owner and occupier at the relevant time. The lesson took place pursuant to a contract between Essex and Beryl Stopford (“Ms Stopford”), who traded under the name “Direct Swimming Services”. Ms Stopford employed Paula Burlinson (“Ms Burlinson”) as a swimming teacher. At the time of the accident, Ms Burlinson was teaching the group of which the claimant was part and Deborah Maxwell (“Ms Maxwell”) was the lifeguard for the session. Ms Stopford was not present.

                  3. It is not in dispute that the swimming lesson began at about 10.45 am. The children from the school were divided into three groups, beginners, intermediate and advanced. Annie was in the advanced group. Shortly after Annie entered the water, she was observed to be floating vertically in the water, unresponsive to questioning or physical contact. She was lifted out of the water and resuscitation was administered. She was taken to Basildon Hospital where she was found to have suffered cardiac arrest and serious brain injury.

                  4. The Swimming Teachers’ Association (“STA”) is a members’ organisation, membership of which includes the benefit of a block insurance policy with Assitalia. At the time of the accident, Ms Stopford and Maxwell were members of the STA and therefore potentially had the benefit of the policy; Ms Burlinson was not a member and there is no suggestion that she was otherwise insured.

                  5. In a trial conducted in January 2015 and reported under neutral citation number [2015] EWHC 273, Blake J found that the claimant’s injuries were caused by the fault both of Ms Maxwell and Ms Burlinson in their supervision of the swimming lesson. In light of the decision of the Supreme Court in an interlocutory appeal on the preliminary issue of the nature of the duty of care owed by Essex, reported as [2013] UKSC 66, these factual findings led to findings of liability on the part of Ms Maxwell personally and Essex pursuant to a non-delegable duty of care. As between Ms Maxwell and Essex, liability was apportioned on the basis that Ms Maxwell meet one third of the damages and costs and Essex meet two thirds following a further hearing before Blake J reported under neutral citation number [2015] EWHC 820. Subsequently the parties agreed damages.

                  6. The claimant’s contention against the various parties who have been joined in the action have been as follows:

                  (a) STA – the claim against STA which, as noted in the appendix and further commented on below, was named as the only defendant at the time of issue of proceedings but was not named or referred to in the original particulars of claim, was put in the amended particulars of claim at G163ff as: “At all material times (Stopford and Maxwell) were members of and had the benefit of indemnity provided by (STA). In the premises (STA) is liable to indemnify (Stopford and Maxwell) in respect of their aforesaid negligence.”

                  [Point (b) not present in transcript.]

                  (c) Ms Maxwell – the claim was based on her alleged negligence in supervising the lesson and for failures in respect of risk assessment and training.

                  (d) Essex – the case was put initially on the bases both of vicarious liability for Ms Burlinson and Ms Maxwell and a non-delegable duty to ensure that the lesson was conducted with reasonable care. Following the decision in the Supreme Court, it proceeded on the latter point alone.

                  7. This case has a complex procedural history, which is a potent (though not the only[1]) cause of the delay between the accident and the ultimate resolution of the claim. Relevant parts of that procedural history are set out in the chronology appended to Mr Gilberthorpe’s skeleton argument in this application. I am grateful to him for that document, which also contained in other appendices a useful dramatis personae and extracts from relevant correspondence. I have borrowed extensively from those documents in the preparation of this judgment.

                  The Claimant’s Application

                  8. The claimant’s application, set out in a notice dated 25 May 2015 but not sealed by the court until 25 October 2017, is for an order that “the defendants shall pay the claimant’s costs of the discontinued proceedings against the Swimming Teachers’ Association and Beryl Stopford”. The proposed order sent with the application goes further by including a term that “the defendants shall pay the costs of Beryl Stopford’s application to adjourn the trial and the hearing thereof on 21 January 2015”. It is unclear from the face of the proposed order whether that order is intended to encompass the claimant’s costs alone or those of any party relating to that application.

                  9. In support of the application, the claimant relied on a statement from Ms Jennifer Maloney, the solicitor who currently[2] has conduct of the case on behalf of the claimant. She contends at para 38 that the usual rule as to costs under CPR 38.6[3] should not apply and that the court should use its discretion under CPR 44.2(4)[4] to order the defendants who were found liable to pay the “costs of the intended proceedings”.

                  10. At that stage, the reader of this application would appreciate that the claimant acknowledges some relevance of CPR 38.6 to the matters in issue but would not anticipate that the claimant was seeking an order that the unsuccessful defendants, Ms Maxwell and Essex, pay the costs of the discontinuees (Ms Stopford and STA) still less an order that there be no order as to the costs of the discontinuees on the discontinued claims and/or that the discontinuees pay the claimant’s costs of the discontinued claims.

                  11. The order of DJ Moss dated 2 August 2017 directing a hearing on the issue currently before the court contemplates that the application relates to “costs incurred against the first and second defendants”. That wording seems to contemplate that the application is dealing only with the claimant’s costs, not those of the discontinuees, since only the former could be said to be incurred “against” the discontinuees.

                  12. However, in his skeleton argument for the hearing of the application, counsel for the claimant seeks orders as follows:

                  (a) that the discontinuees do not recover their costs in the discontinued claims;

                  (b) that the unsuccessful defendants pay the claimant’s costs of the discontinued claims;

                  (c) that, if the discontinuees are awarded their costs of the discontinued claims against the claimant, the unsuccessful defendants should pay those costs;

                  (d) that, in the alternative to (c), the unsuccessful defendants should meet the discontinuees’ costs of the discontinued claims.

                  13. The orders of 13 May 2011 (in respect of the costs of the discontinued claim against STA) and 21 January 2015 and 13 February 2015 (in respect of the costs of the discontinued claim against Ms Stopford) obviously contemplate that the court may at some stage consider the question of the costs of the discontinued claims. But since the application listed before the court does seek an order against them, STA and Ms Stopford have not been served with notice of this application and they are not before the court.

                  14. Mr Dunne accepts that his solicitors and insurers are instructed both by Ms Maxwell and the STA. He accepts that he can act in their interests in dealing with the application and indeed his primary argument as to why I should reject the application is predicated on the argument that the usual rule under CPR 38.6 should not be disapplied in respect of either discontinuee, particularly STA. Thus, he acknowledges that no prejudice would be caused to STA by the court considering the orders sought by the claimant.

                  15. The position of Ms Stopford is of course different than that of STA. Whilst the insurers for Ms Maxwell and STA also initially represented her interests, they subsequently withdrew cover in September 2014. Her solicitors came off the record, since when, she acted as a litigant in person until the claim against her was discontinued. She has no notice of this application and neither she nor anyone acting on her behalf is present in court.

                  16. In those circumstances, it would be wrong for the court to deal with the application relating to the issue of costs between her and the other parties to the claim. It is not known whether she herself seeks any costs relating to the claim against her; further any argument for an order for costs against her could not be determined without her having an opportunity to make appropriate submissions.

                  17. As regards the position of STA, Mr Williams QC for Essex raises a different issue. He was unaware, until receiving the claimant’s skeleton argument on the evening before the hearing, that the claimant was seeking any order for costs as between herself and STA and/or Ms Stopford. This lack of notice of the application placed Mr Williams in a difficult position. Whilst he was able to deal with the legal principles involved in such arguments, he complained that he had not been able to take instructions from his client on how to approach the issues. In any event, it was not clear that either STA or Ms Stopford were seeking an order for costs in their favour. There were good reasons why they might not do so, since both STA and Ms Stopford might be happy to let sleeping dogs lie – an attempt to pursue their own costs might stir up a costs application against them. In that situation, he argued that it would be wrong for the court to consider issues that were not raised on the application and in respect of which the position of the parties directly affected by such an order was not known.

                  18. Whilst of course the issue of costs between the claimant on the one hand and STA and/or Ms Stopford on the other does not directly affect Essex, it may do indirectly since any order in favour of the discontinuees as to the costs of the discontinued action should (on the claimant’s case) include an order that the unsuccessful defendants, Essex and Ms Maxwell, pay those costs. In taking a stance on that argument, Essex may wish to consider with some care whether it joins with the claimant in criticising the discontinuees or whether it mounts an argument that the claimant is to blame for the costs of the discontinued claims.

                  19. Tempting as it is for the court to determine as many issues as possible, in my judgment, there is force in Mr Williams’ argument. The court would be wrong to determine issues that are not properly in front of the court in respect of former defendants who do not have notice and are not present in court, either by making a direct order that the unsuccessful defendants pay the costs of the discontinuees (a Sanderson type order) or by making an order that indemnifies the claimant against any costs that the discontinuees may argue should be met by the claimant (a Bullock type order).

                  20. For these reasons, I have directed that the hearing would be limited to dealing with the costs of the claimant occasioned by the claims against the discontinuees.

                  The Claimant’s Case

                  21. The claimant relies on the witness statement of her solicitor, Ms Jennifer Maloney, dated 8 May 2015. Counsel for the claimant has prepared two skeleton arguments. The first relates to the application generally; the second (wrongly dated 14 November 2014) relates specifically to arguments about the effect of discontinuance.

                  22. In support of the making of an order against the unsuccessful defendants, the claimant relies on Javang v Wadman [2017] 4 Costs LR 807, as an example of a case where an unsuccessful defendant was ordered to pay both the costs of defendants against whom the claimant was unsuccessful and the claimant’s costs of pursuing the unsuccessful defendants. In making the order, Nicol J cited the judgment of Keene LJ in King v Zurich Insurance Company [2002] EWCA Civ 598 at para 33:

                  “The judge had to deal with a not uncommon situation where a claimant was unsure which of the defendants would be liable for his injury and where – in the event – he succeeded against one but failed against the other. In the days before the Civil Procedure Rules came into effect the situation would often be met by a Bullock order … ordering the plaintiff to pay the successful defendant’s costs but ordering the unsuccessful defendant to pay those costs over to the plaintiff. In cases where the plaintiff was legally aided, the order would often be a Sanderson order … whereby the unsuccessful defendant was ordered to pay the costs of the successful defendant directly. These decisions reflected the approach of the courts, namely that where a plaintiff had behaved reasonably in suing both defendants, he should not normally end up paying costs to either party even though he succeeded only against one of the defendants.”

                  23. The claimant’s case, as set out in the skeleton argument and amplified in oral submissions, is that she acted reasonably both in commencing proceedings against the discontinuees and in pursuing the cases against them as far as the point of discontinuance for the following reasons:

                  (a) Loss adjusters for the insurers for STA and Ms Stopford made a written admission of liability on 27 November 2011;

                  (b) Given that the insurers stated their principals to be STA, it was reasonable to conclude that this was an admission on behalf of STA;

                  (c) It was later confirmed by solicitors instructed by the insurers that the admission was made on behalf of STA, Ms Maxwell and Ms Stopford;

                  (d) The evidence gathered by the Health and Safety Executive (and in large part later accepted by Blake J at the liability trial) was critical of Ms Burlinson and Ms Maxwell, both of whom appeared to be employees of Direct Swimming Services (the trading name of Ms Stopford) and therefore people whose acts and omissions Ms Stopford was on the face of it vicariously liable [for].

                  (e) The claim by the claimant against Ms Stopford was later advanced in very similar terms by Essex against her in Part 20 proceedings (see Essex’s re-amended particulars of additional claim against Ms Stopford at B192ff).

                  (f) The insurance position was unclear. There was no evidence that Ms Burlinson was insured and therefore a claim against her was unlikely to be fruitful, whatever the criticism of her conduct.

                  (g) The liability of Essex for the acts and omissions of Ms Burlinson and Ms Maxwell was unclear. The issue was determined in a manner unfavourable to the claimant both at first instance and in the Court of Appeal. The non-delegable duty was only established in the Supreme Court.

                  (h) The decision to discontinue against STA was made when the appeal against the application by STA to withdraw its admission was determined in favour of STA. It was reasonable to wait until this time to discontinue those proceedings.

                  (i) The decision to discontinue the claim against Ms Stopford was an entirely pragmatic one, taken when the trial date was imperilled because Ms Stopford’s insurers had withdrawn cover and Ms Stopford was seeking alternative legal representation shortly before trial; however, had the action proceeded to trial, that claim would have been successful, for the very reasons that the claim against Essex and Ms Maxwell succeeded.

                  (j) The causes of action against the defendants are closely connected to each other and the successful claim against Ms Maxwell and Essex arose from the same facts as those which led to claims being brought against Ms Stopford and the STA.

                  (k) The same solicitors acted for Ms Maxwell, the STA and (until September 2014) Ms Stopford.

                  (l) Essex expressed a desire that Ms Stopford remain in the proceedings even after the claimant’s successful appeal to the Supreme Court on the issue of Essex’s non delegable duty to the claimant.

                  (m) A claimant’s decision on discontinuance has to be taken in light of the general presumption of an adverse costs order under CPR 38.6. Hence, if a claimant is justified in commencing proceedings against a defendant, it should not be judged harshly for being cautious in discontinuing those proceedings, where the result is to lead to a presumptive costs order against the claimant.

                  (n) Had Ms Maxwell (who was identified as a defendant at an early stage) admitted liability (as, given the findings of Blake J, which closely mirrored the comments in the HSE report that was in the possession of the insurers, she should have done), proceedings against other defendants could have been avoided.

                  24. The claimant does not concede that it needs to get over the presumption of a costs order in favour of the party against whom the claim is discontinued pursuant to CPR 38.6 in order for an unsuccessful party to be ordered to pay the claimant’s costs of proceeding in the discontinued claim. The claimant says that the order sought is to be determined under the general discretion as to costs in CPR 44. However, if the claimant is wrong in this, she contends that in any event the facts that justify an order in her favour under CPR 44 also justify the disapplication of the usual order under CPR 38.6.

                  25. On point (1) in para 28 above, the claimant maintains[5] that, in a conversation between Mr Ford QC, leading counsel for Essex, and leading counsel for the claimant on 6 May 2014, that is to say more than six months after the judgment in the Supreme Court had been handed down, Mr Ford stated that “he was not prepared to agree to let the other defendants out”.

                  26. Mr Ford has signed a statement dated 10 November 2017, which has been filed on behalf of his client, Essex. On this issue, he states:

                  (a) He had many discussions with counsel for the claimant relating to this case;

                  (b) He cannot recall any discussion on 6 May 2014;

                  (c) He would not have said that Essex was “not prepared to let defendants out” – it was not a matter for him or his clients whether the claim against them proceeded.

                  (d) Whilst his client had an interest in Ms Stopford and Ms Maxwell remaining in the action as Part 20 defendants, this issue was irrelevant to whether the claimant continued to pursue its claims against Ms Stopford and Ms Maxwell.

                  27. Whilst I can envisage negotiations took place between counsel for the claimant and for Essex in which the position of other parties in the proceedings was discussed, I see force in the reasoning of Mr Ford QC as to why he would not have said the words attributed to him. I am not in a position to resolve the suggested factual dispute and for the purpose of this application I am bound to accept the account of the only one of the two parties to the conversation who has made a statement, that is to say Mr Ford QC.

                  28. In any event, there is additional force in saying that, even if he as counsel did use words to this or like effect, the question of the continuing role of other defendants in the action was a matter for the claimant not Essex.

                  The Case for the Third Defendant (Ms Maxwell)

                  29. The third defendant relies on a skeleton argument from counsel, Mr Dunne.

                  30. The primary position of the third defendant is that the presumption of CPR 38.6, namely that the claimant is liable for the discontinuees’ costs, applies to this situation unless the court has made an order disapplying it. There has not been [an] order disapplying that presumption. Accordingly, not only is the claimant liable for the costs of the discontinuees (an issue which by virtue of my direction referred to at para 23 above is not an issue that I need to determine) but also the claimant cannot recover her costs of proceeding against the discontinuees from other defendants.

                  31. In so far as the claimant may argue that she is or should be entitled to disapply the presumption, the third defendant disputes this, drawing attention to the fact that the burden lies on the claimant to justify a departure from the general rule. As Chadwick LJ puts it in Walker v Walker [2005] EWCA Civ 247 at para 36:

                  “the court has to be persuaded that it is just to depart from the normal rule. The rule recognises that justice will normally lead to the conclusion that a defendant who defends himself at substantial expense against a plaintiff who changes his mind in the middle of the action for no good reason – other than that he has re-evaluated the factors that have remained unchanged – should be compensated for his costs.”

                  32. The third defendant adopts the six principles drawn from Nelsons Yard Management v Eziefula [2013] EWCA Civ 235 and Teasdale v HSBC Bank plc [2010] EWHC 612 (QB) and summarised in the White Book at para 38.6.1 as follows:

                  “(1) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;

                  (2) The fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;

                  (3) However, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;

                  (4) The mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;

                  (5) If the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed;

                  (6) However, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”

                  33. In analysing the case brought against STA, the third defendant contends that it was misconceived in law. In the unsuccessful appeal against the order of HHJ Holman permitting the STA to withdraw its admission reported as [2011] EWCA Civ 266, Ward LJ stated:

                  “[17] On 25 November 2009, a claim was issued by Annie Woodland by her litigation friend, Mr Woodland. For some reason or another the defendant named in the claim form was the Swimming Teachers’ Association. Mr Ian Little settled the particulars of claim and he more accurately named Beryl Stopford as the defendant, who, or whose servants or agents, failed properly to take care and supervise the claimant or promptly to notice and to heed that the claimant was in difficulty and to intervene so as to ensure that she did not sustain injury.

                  [18] The Swimming Teachers’ Association remained a defendant, the unusual claim against it being that since Mrs Stopford and Ms Maxwell were members and ‘had the benefit of the indemnity provided by the [STA] organisation’, the Association was liable to them in respect of their negligence.”

                  The third defendant contends that the claim against the STA was misconceived – there was no basis in law for the liability contended for and the claim was doomed to failure.

                  34. As regards the claim against Ms Stopford, the third defendant contends that it was the claimant’s decision to pursue such a claim and the claimant therefore bore the risk of the costs of the claim. This was a commercial consideration of the kind that the principles set out above indicate is irrelevant to displacing the usual costs presumption,

                  35. Generally, the third defendant contends that, at the time of issue, the claimant’s confusion as to the identity of the correct defendants was a result of her advisers’ failure to make a proper analysis of the case, as demonstrated by the difference between the defendant named in the claim form and that named in the particulars of claim. If the claimant had properly analysed the situation, she would have realised that she had a good claim against an insured defendant, Ms Maxwell. It was unnecessary to join in other parties. The defendants who were ultimately found liable should not be expected to meet the claimant’s costs of unnecessarily pursuing others.

                  36. Further, the claimant knew that the STA was seeking to withdraw the admission of liability before proceedings were issued. Given the lack of logic to any such admission, there was no justification in bringing the STA into the claim.

                  37. Yet further, in his judgment on the withdrawal of admission, His Honour Judge Holman found that the admission was made on behalf of Ms Stopford (see para 22(3) of the decision in the Court of Appeal). That finding does not seem to have been the subject of appeal, the claimant confining the main argument to whether the judge properly assessed the factual basis for the withdrawal of the admission (see para 24 of the judgment of the Court of Appeal). If the joinder of STA could be justified as far as the time at which HHJ Holman gave permission for the admission to be withdrawn, it could not be justified thereafter if his finding that the admission in any event was not made on behalf of the STA was not one being challenged.

                  38. Even if the claimant was justified in joining the STA and/or Ms Stopford, its decision to join an obviously solvent and ultimately liable party, Essex, meant that there was no reason to continue to pursue the claims against the parties against whom she ultimately discontinued. Whilst discontinuance against STA came about shortly after Essex were joined, the continued involvement of Ms Stopford until shortly before trial was unnecessary.

                  The Case for the Fourth Defendant (Essex)

                  39. The fourth defendant relies upon statements from Ms Michelle Campbell, solicitor, and Mr Ford QC. For the reasons set out above, I accept Mr Ford QC’s account of the disputed conversation about “letting the defendants out”. Essex also relies on a skeleton argument from Mr Williams QC.

                  40. The fourth defendant takes a different approach to the claimant’s application. Rather than looking to the principles to be applied under CPR 38.6, the fourth defendant turns to the principles that are applied in cases where the claimant seeks a so-called Bullock or Sanderson order, in other words an order by which an unsuccessful defendant is ordered either directly or indirectly to pay the costs of a successful defendant.

                  41. The fourth defendant summarises the principles as set out in Irvine v Commissioner of Police [2005] EWCA Civ 129, the leading authority since the CPR came into force, as follows:

                  “(a) The issue is one for the court’s discretion, informed by the overriding objective and CPR 44.2;

                  (b) Where a claimant does not know who wronged him, it may be reasonable for him to join more than one defendant and not see his damages eroded by failing to recover costs against a successful defendant;

                  (c) but such orders are ‘strong order[s]’ capable of working injustice on defendants, who can become liable to pay cost[s] of parties they had no choice in joining;

                  (d) even where a claimant reasonably joins more than one defendant, there is no rule compelling a costs order in his favour; the court must consider potential injustice to the defendant as well.

                  (e) the ‘ordinary circumstance’ for an order is where a claimant sues defendants in the alternative and is sure to succeed against one of them. However, while this may be the ‘classic’ scenario for an order, it does not mean that an order may not be made in other circumstances.

                  (f) orders are less likely where the causes of action asserted against defendants are different.

                  (g) the reasonableness of the claimant’s action is an important consideration.

                  (h) whether one defendant blames another is also significant – although not determinative, as even where a defendant does, a claimant must exercise his own judgment.”

                  42. In terms of the application of these principles to the instant case, the fourth defendant makes the following points:

                  (a) STA

                  i) The STA was brought into the action before Essex;

                  ii) Essex did not blame the STA;

                  iii) The claim against the STA was discontinued shortly after Essex was joined in the action, for reasons unrelated to the joinder of Essex;

                  iv) The claim against the STA was obviously misconceived (see the judgment of the Court of Appeal in the appeal on the issue of permission to withdraw the admission);

                  v) STA was not sued in the alternative to Essex.

                  (b) Ms Stopford

                  i) Ms Stopford was brought into the action before Essex;

                  ii) Essex did not blame Ms Stopford;

                  iii) The need to join Ms Stopford in the action can be questioned. In so far as her potential liability was vicarious for the actions of Ms Maxwell, she was insured;

                  iv) The claim against Ms Stopford was not in the alternative to a claim against Essex;

                  v) Once the non-delegable duty of Essex was established in the Supreme Court, there was no need to pursue a claim against Ms Stopford;

                  vi) In any event, the claim against Ms Stopford was discontinued for reasons relating to her lack of insurance. Those reasons arose through lack of diligence by the claimant’s advisers or lack of transparency by the insurers, but in either event through no fault of Essex.

                  43. The fourth defendant also adopts the arguments advanced by the third defendant (with, it seems to me, rather limited enthusiasm for the argument as to the application of CPR 38.6 to this situation).

                  Discussion – the Relevance of CPR 38.6

                  44. In my judgment, the claimant’s contention on the application of CPR 38.6 to this situation is to be preferred to that advanced on behalf of Ms Maxwell for several reasons.

                  45. First, there is nothing in the terms either of CPR 44 or CPR 38 that indicate that the latter is intended to circumvent the wide discretion as to costs given by the former.

                  46. Second, if the effect of CPR 38.6 is as Mr Dunne contends for, it would potentially have significant effects on the ability of a claimant (C) to limit the issues in a case by discontinuing against one defendant (D1) in a case with multiple defendants. In such circumstances, if C argued that the remaining defendant (D2) should in due course be liable for the costs of the D1 but accepted that the D1 should recover its costs C would be prevented from arguing that point, unless they made application to disapply the costs presumption under CPR 38.6. Such an application could only be made against D1 and, on Maxwell’s argument, C could only (even contingently) be entitled to an order against D2 if the presumption that C pay D1’s costs was displaced. Thus, the claimant would have to succeed on an application against a defendant against whom it thinks it should not succeed (D1) in order to have an opportunity of obtaining a costs order against D2.

                  47. By way of example, consider the not unheard-of situation of a road traffic accident in which there is no dispute that the accident was caused by the negligence of the driver but there is dispute about who the driver was. C suffers grievous injuries and cannot assist on the issue. Independent evidence strongly supports the conclusion that it was either D1 or D2 but cannot distinguish which it was. Before action, D1 and D2 each say that they were the front seat passenger and the other was the driver. The claimant therefore issues against both defendants. Subsequently D1 admits that he was the driver. C therefore wishes to discontinue against D2. On the argument advanced for Ms Maxwell in this case, C could only get an order that D1 pay his costs of the action against D2 if he sought an order disapplying the usual consequence of CPR 38.6. Since the focus in disapplying CPR 38.6 is on the conduct of the party against whom the claimant discontinues, the claimant would arguably have to show unreasonable conduct on the part of D2 in order to obtain a costs order against D1. Such an interpretation of CPR 44 and CPR 38 is inconsistent with the overriding objective. It would tend to cause delay, expense and injustice. A more purposive interpretation would be one that allows C to take the obvious expedient step of discontinuing forthwith against D2 and pursuing an application for his costs and/or for an indemnity in respect of his liability for D2’s costs against D1.

                  48. Third, it is not obvious to me why a claimant who discontinues a claim against one defendant and succeeds against another at trial should have to meet a different criterion as to the recovery of his costs of pursuing the discontinuee than he would in seeking to recover the costs of the defendant against whom he fails at trial, when he has pursued two defendants at trial and succeeded against one but failed against the other. On the third defendant’s argument, the former situation would be subject to the presumption against the claimant contained in CPR 38.6. The latter situation would be subject to the general discretion as to costs, as applied in such situations by analogy to the making of a Bullock or Sanderson order (as for example in Jabang v Wadman, op. cit.).

                  49. In my judgment, CPR 38.6 does not apply to the situation before the court here and does not avail the defendants. That is not to say that matters that are relevant to the argument under CPR 38.6 may not also be relevant to the argument under CPR 44 – some of them clearly are.

                  Discussion – the Exercise of the Discretion under CPR Part 44

                  50. In dealing with the discretion under Part 44, I accept that submission, adopted both by the claimant and the fourth defendant, that the cases on Bullock and Sanderson orders provide the best guidance to the orders being sought here. Those principles are well summarised in the passage at para 41 above.

                  51. The first and obvious point to make about the consideration of the general discretion as to costs in a situation such as this is that the court must balance the interest of a successful claimant in not having her award of damages eroded by a costs order with the interest of a defendant in not being made to pay for decisions as to conduct of the case which are outside of its control and may be misjudged. These factors naturally lead the courts to focus on the reasonableness of the claimant’s actions in joining the defendant in the first place and in not discontinuing at an earlier time than in fact was the case.

                  52. The merits of the claims against STA and Ms Stopford make the arguments significantly different in respect of the costs of proceeding against the two defendants. I shall deal with the two separately, having noted by way of general comment that:

                  (a) Neither defendant currently before the court was directly responsible for Ms Stopford and/or STA being joined in the action.

                  (b) Whilst the claimant correctly argues that an early admission (especially from Ms Maxwell) would have avoided most if not all the costs of the claims against Ms Stopford and STA being incurred, that is a weak ground to make an order against either or both defendants. Such an approach would be an invitation to a bold claimant to run up costs in pursuing parties unnecessarily in the belief that a defendant against whom success is likely to be achieved will meet those costs.

                  (c) There may be a temptation for the court to consider that, because the insurers who wrongly made the admission for STA and who initially stated that they were providing indemnity to Ms Stopford then withdrew that indemnity are the same insurer as indemnify Ms Maxwell, that I should judge their actions in respect of the first two in terms of the costs liability for the third. I resist any such temptation. To succumb to it would be to circumvent my decision on the application of CPR 38.6 in a way that is unfair to the defendants. If, as I have ruled, Essex and Ms Maxwell do not have the protection of the higher threshold test in CPR 38.6, it would be wrong to elide their liability for the costs of one of these defendants with their potential liability for the acts of other defendants who are able to pray in aid the test under CPR 38.6.

                  53. In respect of the joinder of STA the following matters seem to me to be of particular significance:

                  (a) The claimant has never had an arguable claim against the STA, other than based on the admission. That which is pleaded in the amended particulars of claim could never have succeeded as a cause of action against STA since as a matter of principle a right in an insured to an indemnity from its insurer as to claims from a third party does not even arguably create a cause of action for the third party against the insurer, whether at common law or pursuant to contract, nor is any such cause of action even suggested here. (Of course, the position is different in some statutory regimes.)

                  (b) The claimant has never been able to formulate an arguable claim against the STA.

                  (c) Any claim that could be formulated would necessarily be different in type to that pursued against Ms Maxwell and Essex, the defendants whom it is now argued should pay STA’s costs.

                  (d) By the time of the issue of proceedings, the admission on behalf of STA had already been withdrawn.

                  (e) The claimant did not argue that the withdrawal of the admission caused it prejudice. Rather she contended that fairness requires that admissions are not withdrawn without good cause.

                  (f) She had already identified two people, Ms Stopford and Ms Maxwell, who were potentially liable (and against whom there was obviously a more legally tenable claim) and who were, on the face of it, insured.

                  (g) On the appeal from the decision of His Honour Judge Holman, the claimant was not even arguing that the admission bound the STA. Thus, by that time there was no possible basis for a finding of liability against it, even if there had been earlier.

                  54. In my judgment, the claimant is not to be criticised for taking this admission at face value until the attempt was made to withdraw it. However, once that purported withdrawal was communicated, the claimant needed to consider her position carefully. The admission was made by a party who, on a proper analysis of the law, was not capable of being liable for the acts complained of. There is no material to suggest that the claimant had any argument as to prejudice from the purported withdrawal. There was therefore a very high chance that an application to withdraw the admission would succeed on the grounds that it ultimately succeeded [on], namely that it was made in error.

                  55. A proper and careful analysis at this stage would have led to the conclusion that the claim against STA was unsuccessful and that they should not be joined in the action. Applying the principles in Irvine cited above, the claimant should not recover her costs of pursuing the claim against STA from Essex and/or Ms Maxwell.

                  56. As regards the claim against Ms Stopford, the situation is somewhat different:

                  (a) The claim is similar to that pursued against both Essex and Ms Maxwell;

                  (b) On the face of the information available to the claimant, she had a good arguable case that Ms Stopford was vicariously liable for the acts of Ms Burlinson and/or Ms Maxwell;

                  (c) The reasonableness of her belief to this effect is supported by the decision of Essex to bring Part 20 proceedings against Ms Stopford.

                  (d) Further, the insurance position as represented to the claimant was that Ms Stopford was insured against liability. The same solicitors acted for her as acted for STA and Ms Maxwell and nothing in their behaviour gave reason to doubt that she was insured until shortly before the liability trial.

                  57. It is correct to argue that, once the claimant had succeeded in the Supreme Court on the issue of the non-delegable nature of the duty owed by Essex to the claimant, it is strongly arguable that continuing to pursue the claim against Ms Stopford added nothing to the claim against Essex, since any factual findings that led to judgment against Ms Stopford would necessarily lead to judgment against Essex. But by that time, the claimant had to weigh in the balance the consequence of discontinuing against Ms Stopford (which might lead to her immediately seeking a costs order against the claimant pursuant to CPR 38.6) and the fact that the costs of continuing to pursue Ms Stopford were likely to be minimal for so long as the Part 20 proceedings brought against her by Essex and based on the same facts remained unresolved.

                  58. It might be argued that a claimant in this position, following the judgment in the Supreme Court, ought to have sought to negotiate resolution of the claim by Ms Stopford on terms that brought that claim to an end and protected the claimant in costs. But it is easy to see that such negotiations may have been difficult. At that stage, Ms Stopford was still represented. Essex had no interest in joining in an agreement to let her out of the claim and it is far from obvious that those representing Ms Stopford would have accepted an order other than the presumptive costs order on discontinuance under CPR 38.6.

                  59. In my judgment, the claimant acted reasonably in these circumstances in continuing to pursue the claim against Ms Stopford until the time of discontinuance. She should recover the costs of pursuing the claim against Essex and Ms Maxwell. For the avoidance of doubt, those costs should include the costs of and occasioned by Ms Stopford’s application to adjourn the trial.

                  Apportionment

                  60. During argument, I raised the question of how any costs liability arising from my judgment on this application should be apportioned between Ms Maxwell and Essex. Those parties agreed that I had a general discretion, arising from s 51 of the Senior Courts Act 1981 and CPR 44.2.

                  61. In the original draft of my judgment as circulated to the parties, I determined that as between the defendants, the parties should pay the costs of the claimant’s claim against Mrs Stopford in the same proportions as they were held liable for her damages, namely that Ms Maxwell pay one third of the costs and Essex pay two thirds. My expressed reason for this was that the claimant succeeded in her argument that the defendants should meet the costs of her claim against Ms Stopford not based on the unreasonableness of the behaviour of the defendants but rather based on the reasonableness of the behaviour of the claimant and the consequent argument that she should not suffer a costs penalty. In those circumstances I indicated that I could see no more logical result than that reached on apportionment in the main action and that neither Ms Maxwell nor Essex had seriously challenged this analysis in the hearing.

                  62. On behalf of Essex, it was indicated in response to the circulation of the draft judgment that I had misunderstood its submissions on this issue. I therefore directed the defendants before the court to file further written submissions on this issue. Mr Dunne for Ms Maxwell and Mr Williams QC for Essex have each prepared such submissions and I am grateful to them for their further assistance.

                  63. In the light of those submissions, I have revisited afresh the issue of the apportionment as between the defendants.

                  64. For Ms Maxwell, Mr Dunne contends that my original order was the correct exercise of the discretion on this issue. The liability for costs should mirror the liability for damages, since the claim against Mrs Stopford was reasonably brought (see para 59 above) and was only brought because of the very negligence for which Ms Maxwell and Essex are liable in the share one third to the former, two thirds to the latter.

                  65. Even if the court were to look at the blameworthiness of the defendants not in respect of the accident but in respect of the joinder of Stopford in the action, Mr Dunne contends that Ms Maxwell is no more blameworthy than Essex for this.

                  66. For Essex, Mr Williams QC invites three possible conclusions, which (in decreasing order of appropriateness, in his submission) are:

                  (a) a primary case that Mrs Maxwell should bear all the costs of the claimant’s claim against Ms Stopford;

                  (b) a secondary case that Ms Maxwell should bear 75% of those costs, Essex bearing the balance of 25%;

                  (c) a tertiary case that Ms Maxwell and Essex should bear those costs equally.

                  67. In support of this contention, Mr Williams QC distinguishes between the factual matrix that led to the apportionment of damages as between these two defendants, and that which is relevant to the apportionment of these costs as between the two defendants.

                  68. The former can be seen from the judgement of Blake J handed down on 1 April 2015. The judge applied the judgment of Hobhouse LJ in Downs v Chapelle [1997] 1 WLR 426 and considered the fault of the respective parties for the accident and the causative relevance of that fault to the claimant’s injuries. Thus, one can see at paras 12 and 13 of his judgment a balancing exercise addressing those factors.

                  69. In contrast, Mr Williams QC said that, in determining this costs issue, I should have regard not to the balance of the parties’ respective fault and contribution to the accident and the claimant’s injuries. Rather, I should look at the parties’ relative fault for Ms Stopford being joined in the action and its causative relevance to that joinder. In looking at the relative blameworthiness of these two defendants, Mr Williams QC draws attention to the following:

                  (a) The two defendants are equally to blame for not admitting liability. This pointed a minimum to the court ordering the tertiary case.

                  (b) But in fact the claimant only sued Ms Stopford because she was led to believe that Ms Stopford was insured. That is demonstrated by the fact that, when she was aware that Ms Stopford was not insured, she discontinued the claim against her. Mr Williams describes this as “the insurance debacle” which he contends is no fault at all of Essex, but in fact is the fault of Ms Stopford’s supposed insurer, the same insurer as stands behind Ms Maxwell.

                  (c) Mr Williams QC draws my attention to the fact that, in acting on behalf of Ms Maxwell, Mr Dunne accepted for the purpose of the claimant’s application that he was protecting the insurers’ interests overall, this being a group policy that covered STA and Ms Maxwell, as well as being initially represented by the insurers to cover Ms Stopford.

                  (d) Ms Maxwell therefore stands in this application as a surrogate for Ms Stopford’s insurers. It was those insurers who are responsible for the “insurance debacle” and those insurers should meet the claimant’s costs incurred as a result of that debacle. Accordingly, Ms Maxwell should meet the full costs of the claimant’s claim against Ms Stopford (its primary position) or at least the lion’s share of those costs (its secondary case).

                  70. Mr Williams QC is correct to point out that, as summarised at para 14 above, Mr Dunne indicated during the hearing of this application that he could defend the interests of STA as well as those of Ms Maxwell. However, as I have indicated above, he could not defend the interests of Ms Stopford. The logic of Mr Williams QC’s position is that, as a matter of convenience (and indeed fairness to his client) the court can treat Mr Dunne’s concessions as to the role of his insurers and those who instruct him in representing Ms Maxwell, the STA and (until latterly) Ms Stopford as a green light to the court treating them as effectively the same party. Mr Williams QC invites the court to order against Ms Maxwell that which he says should be met by Ms Stopford (or at least her insurers).

                  71. That is a course of action that has some attraction. I accept that the evidence before the court suggests that Mr Williams QC is correct to say that Ms Stopford was joined in this action (and therefore the costs which the court is now considering were incurred) because of the actions of her insurers. If those insurers were joined in this action, Essex might have a strong argument for an indemnity or a contribution against them.

                  72. It may very well be that the result of this judgment leads to a further dispute arising between Essex, Ms Stopford’s insurers and possibly even Ms Stopford herself. It is tempting to seek to short cut the costs, delay and inconvenience associated with that by adopting Mr Williams’ approach.

                  73. But I consider that I would be taking Mr Dunne’s concession too far if I treated his acceptance that he can represent the insurers’ interests for some purposes as an indication that I can safely make an order against Miss Maxwell based on the alleged errors of her insurers in purporting to indemnify Ms Stopford. The insurers are not formally a party before the court. They may have a legitimate argument that they are not to blame for the “insurance debacle”. If I make an order treating Ms Maxwell and Ms Stopford as indistinguishable parties because both have the same insurer behind them, I may be denying those insurers the opportunity to argue an issue such as their liability to indemnify Ms Stopford. They may also seek to argue that they were not in any event at fault for the joinder of Ms Stopford in the action. That is an issue that Mr Dunne has not addressed in any detail for the obvious reason that, until Ms Stopford or the insurers are joined in this application, he need only argue the issue on behalf of Ms Maxwell.

                  74. Further, it would be difficult to square Mr Dunne’s contention at paras 12 and 13 of his supplemental skeleton argument as to the relative blameworthiness of Ms Maxwell and Essex for the joinder of Ms Stopford with an acceptance that [illegible], for the purpose of this argument, he was also conceding that he represented the insurers for their role in purporting to indemnify Ms Stopford. If he were accepting this, he would have needed to address the question of the blameworthiness of Ms Stopford and the insurers on her behalf, as weIl as that of Ms Maxwell. If he had endeavoured to do that, it is difficult to see that he could have contended that Ms Maxwell and Ms Stopford (and their insurers/lawyers) jointly were less blameworthy than Essex. I thus do not accept that his indication that he was representing his insurers’ interests in this application could go beyond the particular context in which he accepted that he could deal defend [sic] those interests namely as indicated at para 14 above, that is to say in resisting the orders sought by the claimant. I certainly do not think that he could be held to a concession that he was acting for the insurers generally in respect of all issues, even where (as here) there are potential conflicts between the various parties insured by his insurers.

                  75. I accept Mr Williams QC’s analysis that, in considering the apportionment of costs, in circumstances such as this, the court is concerned with why those costs were incurred by the claimant and that in doing so it would be right to look at the respective fault and causative relevance of the actions of the defendants. The difficulty is that, once one divorces criticism of Ms Stopford from that of Ms Maxwell, the fact of their common insurance becomes no more than background information. It does not seem to me that Ms Maxwell (or her insurers in that role, rather than in the role of insuring Ms Stopford) are more to blame for the unnecessarily incurred costs than Essex.

                  76. Mr Williams QC’s tertiary case has some attraction to it. It can be said that Essex and Ms Maxwell are equally to blame for costs being incurred insofar as they each denied liability. But that argument would apply with equal force to the claimant’s costs of the action generally. Those costs could be said to be equally attributable to the fault of Ms Maxwell and Essex in not admitting liability earlier, in which case it could be contended that all the costs of the claim should be shared equally. Yet this is not the order that was made by Blake J on 23 April 2015. The order that he made was the normal order in such circumstances reflecting the general rule that where liability for a tortious act is apportioned between two defendants, the liability of those defendants to meet the claimant costs is in the same proportions as their liability for the damages. That is consistent with my original conclusion as set out at para 61 above. I see no reason to depart from that general principle here.

                  77. For these reasons, I remain of the view that as between Ms Maxwell and Essex, the apportionment of liability for the claimant’s costs of the claim against Ms Stopford should be as to one third against Ms Maxwell and two thirds against Essex.

                  Conclusion

                  78. In light of my findings above, I conclude that:

                  (a) There be no order as between the claimant and third and the fourth defendants as to the claimant’s costs of her claim against the first defendant.

                  (b) The third and fourth defendants should pay the claimant’s costs of her claim against the second defendant, Ms Stopford, such costs to include the costs of and occasioned by the application to adjourn the trial.

                  (c) As between the third and fourth defendants, the third defendant shall pay one third of the claimant’s costs as ordered under (b) hereof and the fourth defendant shall pay two thirds.

                  79. I invite the parties to agree the terms of an order consequent upon my judgment. If the parties can do so and do not seek a further hearing in front of me, I will hand down this judgment and make the consequential order on a date to be fixed. If the terms of the order cannot be agreed or the parties seek a further hearing before me, the judgment will be handed down in the absence of the parties and a further date will be fixed for the hearing of submissions.

                  80. The time for applying for permission to appeal this judgment will be extended to 21 days from the date of the making of the consequential order, be it by consent or following a further hearing.

                  Chronology

                  DateReference in hearing bundleEventNotes
                  2.1.90B3Claimant’s date of birthCurrent age – 27
                  5.7.00B5Date of accident 
                  22.3.01 Letter of claim from C’s solicitors to Ms Stopford(i) This date is asserted in the chronology at A1. I have not found the original letter or the source of the date.
                  (ii) The letter is asserted to have been addressed to Ms Stopford within the letter at G47.
                  16.5.01C1Letter from Crawford’s, loss adjusters, to C’s solicitors.Crawfords state principals to be “Assitalia/Swimming Teachers’ Association”
                  20.11.01C4Letter from Crawfords denying liabilityCrawfords state principals to be Assitalia
                  1.5.07C6Letter from C’s solicitors to Crawfords, enclosing the HSE report and pointing to the criticism of Direct Swimming Services(i) The report appears at I31ff.
                  (ii) It is critical of Ms Burlinson (the swimming teacher) and/or Ms Maxwell (the lifeguard) – see section 12, I54.
                  27.11.07C7Letter from Crawfords admitting liabilityCrawfords state their principals to be Assitalia
                  11.11.08D1Letter from Fishburns solicitors (i) Fishburns say they are instructed by Assitalia to represent “the interests of their insured, the Swimming Teachers’ Association”.
                  (ii) Fishburns raise no issue as to liability.
                  1.4.09D7Letter from Fishburns solicitorsFishburns state that Assitalia “insure the STA not Direct Swimming Services” (i.e. Ms Stopford)
                  10.3.09G50Interim payment made by STA solicitors 
                  27.7.09D17Letter from Fishburns withdrawing admission of liability on behalf of STA.This is the first intimation of any withdrawal of admission by Fishburns
                  2.9.09G50Email from Fishburns solicitors stating that the admission was made on behalf of STA 
                  3.9.09G47Letter from C’s solicitors to Fishburns stating that the initial letter of claim was addressed to Ms Stopford 
                  23.9.09D30Letter from Fishburns to C’s solicitors regarding the admission(i) in the second paragraph, the letter says the admission was made on behalf of STA and “we are not suggesting that the admission was made on behalf of Ms Stopford”;
                  (ii) in the third paragraph, the letter says “in making an admission on behalf of STA … such an admission would have included Debbie Maxwell and Beryl Stopford, both of whom were registered members at the time of this incident. We note however that Mrs Stopford was not even present at the time of this incident … and it would therefore be a matter for you to consider whether or not to name Mrs Stopford as an individual defendant in this claim.”
                  25.11.09B1Claim form issued against STA 
                   G104Particulars of Claim served(i) The date comes from A2.
                  (ii) The particulars of claim name Ms Stopford as the defendant, notwithstanding the identification of STA as the defendant on the claim form.
                  16.4.10B56STA provides further information pursuant to CPR 18. 
                  26.4.10B59Order by HHJ Holman giving permission pursuant to CPR 14.1(3) to the defendant(s) to withdraw the admission of liabilityThe judgment of HHJ Holman is not before the court, but two matters relating to it are referred to in the decision of the Court of Appeal reported at [2011] EWCA Civ 266.
                  (i) “this judge of vast experience took the eminently sensible, pragmatic course of dealing with the main issue, the withdrawal of the admission of liability, on the basis that the amendments should be treated as if they had been made and that Mrs Stopford and indeed Ms Maxwell were proper parties to the proceedings” (para 20);
                  (ii) “he decided that on a proper construction of the correspondence the admission was made on behalf of Mrs Stopford” (para 22(3)).
                  9.6.10B60Order of HHJ Holman giving permission to amend the claim to join Ms Stopford and Ms Maxwell as defendants and to amend the particulars of claim 
                  28.9.10B104Order of HHJ Holman given permission to amend the particulars of claim 
                  1.12.10B111Service of Part 18 Reply on behalf of Ms Stopford stating (at answer 13) that she did not have public liability insurance in respect of the actions of Ms Maxwell and/or Ms Burlinson 
                  10.12.10B120Order giving permission to re-amend the claim to join Essex and Basildon as defendants and to re-amend the particulars of claim 
                  16.3.11B124Court of Appeal dismisses C’s appeal against the decision of HHJ Holman permitting to resile from that admission. 
                  13.5.11B159Claim against D5 discontinued 
                  13.5.11B157Directions given by HHJ Holman including in relating to discontinuing against STA.Part of the order provided: “The issue as to what costs order is appropriate upon such discontinuance (sc. against STA) shall stand adjourned to the trial judge."
                  17.10.11B164Order by Langstaff J striking out the claim based on a non- delegable duty and/or vicarious liability. 
                  9.3.12B178Appeal against striking out order of Langstaff J dismissed 
                  23.10.13B187Supreme Court hands down judgment allowing the appeal from the Court of Appeal 
                  21.5.14B190Order of HHJ Armitage QC amongst other things giving permission to re-amend the particulars of claim 
                  5.9.14 DWF, solicitors for Ms Stopford, apply to come off the record in relation to herThis date is not apparent from the hearing bundle or the court file but appears in C’s chronology.
                  15.9.14 Order of DJ Stephens granting DWF application to come off the record as acting for Ms StopfordThis document is not in the hearing bundle but appears on the court file.
                  21.1.15B200Application by Ms Stopford to adjourn the trial. Application dismissed but claim against Ms Stopford discontinued.In respect of the costs of the application, including costs of discontinuance, the order records that costs are “reserved to the conclusion of the proceedings”.
                  13.2.15B201Order of Blake J giving C judgment against Ms Maxwell and EssexThe order directs further case management and provides at paragraph 5, “any outstanding issues as to the costs in respect of the discontinued claims against the Swimming Teachers’ Association and Beryl Stopford shall be subject to further direction at the case management conference referred to in paragraph 3 above”.
                  23.4.15 Order of Blake J giving judgment for Essex in Part 20 proceedings against Ms Maxwell for one third of the damages and costs awarded to the claimant against Essex in the main action.This order is not in the hearing bundle but appears on the court file. The mistake as to the identities of the parties in that order was corrected by a consent order of DJ Richmond dated 7 September 2016.
                  8.5.15 Application by claimant for order that the defendants pay the claimant’s costs of discontinued proceedings against STA and Ms Stopford(i) The application was sealed on 25.10.17
                  (ii) This document is not in the hearing bundle but appears on the court file.
                  18.5.16 Order of Fraser J approving quantum settlement in the sum of £1,999,999.This document is not in the hearing bundle but appears on the court file.
                  2.8.17 Order of DJ Moss relating to the listing of the application of 8.5.15(i) The original intention of DJ Moss was that he hear the application. It was subsequently decided to list it before a High Court judge or circuit judge sitting in the High Court pursuant to s 9 of the Senior Courts Act 1981;
                  (ii) This document is not in the hearing bundle but appears on the court file.

                  Notes

                  1. In particular, the delay between the original enquiries of Crawfords and the admission of liability by Crawfords on 27 November 2007 cannot be attributed to any procedural complication.

                  2. She was not the solicitor at the time of the events referred to by Ward LJ in the passage from his judgment in the appeal from the decision of HHJ Holman set out at para 33 below.

                  3. CPR 38.6 provides: “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against who the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.”

                  4. CPR 44.2 provides: “(1) The court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of the costs; and (c) when the costs are to be paid. (2) If the court decides to make an order about costs (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order … (4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances. including (a) the conduct of the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle …”

                  5. See para 33 of the witness statement of Jennifer Maloney.

                  James Gilberthorpe appeared for the claimant.

                  Robin Dunne appeared for the third defendant (Deborah Maxwell).

                  Benjamin Williams QC appeared for the fourth defendant (Essex County Council).

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