Opinion

JTT; Costs: Bullock vs Sanderson

JTT

Imagine a scenario where plaintiff names two defendants in a lawsuit. Ultimately, the plaintiff is successful only against one of them. Given that costs follow success, we can easily surmise that the defendant to whom liability was appended is liable to pay the plaintiffs costs. But what of the successful defendant?

Normally the successful defendant would be entitled to costs against the plaintiff. In these circumstances, Courts are at liberty to make special orders regarding these costs. Enter the Bullock and Sanderson orders:

  •  A Bullock order (Bullock v London General Omnibus Co, [1907] 1 KB 264) requires the unsuccessful defendant to reimburse the plaintiff for any costs that the plaintiff has paid to the successful defendant.
  •  A Sanderson order (Sanderson v Blyth Theatre Co, [1903] 2 KB 533) is even more straightforward. It obligates the losing defendant to pay the winning defendant directly, leaving the plaintiff out of the procedure.

Since these orders effectively immunize the plaintiff from costs, they are usually made only when it is reasonable and proper to join the winning defendant. The two-part test for whether a Sanderson (or Bullock) order should be employed was outlined in Moore v Wienecke (2008 ONCA 162):

  1.  Whether it was reasonable to join the several Defendants together in one action.
  2. If so, whether courts should exercise their discretion to award such an order, i.e. would it be just and fair in the circumstances.

The Court also outlined four factors to consider under the second step, which ought “not be applied mechanically in every case” since costs – by their nature – are discretionary:

  • Did the unsuccessful Defendant try to shift responsibility on the successful Defendant?
  • Did the unsuccessful Defendant cause the successful Defendant to be added as a party?
  • Are the causes of action independent of each other?
  • Who has the ability to pay costs?

In the end, the rationale for these orders is that the unsuccessful defendant – by his wrongful act – necessitated the joining of the innocent defendant and thus ought to be held accountable for legitimate costs incurred. The Court seeks a just outcome, and the availability of these different orders gives the Court the tactical ability to achieve the desired outcome.

Therein lies the Tip: when representing the winning defendant, ask whether the plaintiff is able to satisfy the costs? If the plaintiff is impecunious, the best move would be to seek a Sanderson order. If representing the plaintiff in this situation and costs are being sought against you, seek a Bullock at the very least! A Sanderson would be handy if you want to stay out of it completely.

I racked my brain to try and come up with an easy code to remember which is which. Bullock is a two step move (D > P > D) where as Sanderson is just one (D->D). The longer name is shorter.

As always: this is solely information, only a fool would treat this as advice. Do your own research!