John M Hayes are always thorough and meticulous in the preparation of bills but more importantly than that they are very approachable and willing to help. Dealing with them is a pleasure.
Brendan McNeany, Partner, Samuel Phillips
When a Claimant suffers a divisible condition at work (for example noise-induced hearing loss, hand-arm vibration syndrome, or asbestosis), it is often the case that they will seek to bring an action against multiple former employers. In many cases they will succeed against every former employer against whom an action is brought, and if so the assessment of costs is usually straightforward. However, it can prove problematic if the Claimant succeeds against some but not all of the Defendants.
In such cases the Claimant will tend to seek all of their costs, including costs of investigating and bringing proceedings against Defendants in respect of whom success was not achieved. Defendants for their part will usually argue that they should not be responsible for costs incurred in relation to those claims which did not succeed; and also that in respect of ‘generic’ or ‘common’ costs, they should only pay an apportionment based on the number of Defendants.
This has recently been considered in the High Court, in Haynes v Department for Business, Innovation and Skills  EWHC 643 (QB). The Claimant was the personal representative of her husband, who had been exposed to asbestos by 10 Defendants and suffered fatal asbestosis. The Claim was valued at approximately £195,000. The Claimant made a Part 36 offer to one Defendant to settle her claim for £18,000. The offer was accepted, and the Claimant ultimately discontinued against the remaining Defendants. The Claimant contended she should be entitled to all her costs. The Defendant contended that she should not be entitled to any costs relating to pursuing the 9 Defendants against whom she failed, and only 1/10 of ‘generic’ costs. The Defendant’s approach was preferred on assessment at the SCCO and the Claimant appealed.
On appeal, the court considered that the term “the costs of proceedings” in CPR 36.10(1) meant “the costs of proceeding against the defendant against whom the deemed order has been made” and so the Claimant could not recover costs which related solely to the remaining Defendants.
In respect of ‘generic’ costs, the Court considered that there were two categories of such costs: those which are non-specific and would have been incurred regardless of the number of Defendants (such as court fees, medical reports and travel expenses) and specific costs which are capable of identification and division (the example given was a conference with Counsel in relation to the liability of each Defendant). It was held that the Claimant was entitled to recover non-specific costs in full; in relation to specific costs a 1/10th apportionment was upheld, but on the grounds that the Claimant’s file of papers had not been properly filed to allow the Court to undertake an evidence based division of such items.
In future, Haynes should hopefully provide some certainty in multi-Defendant cases; however, it must be remembered that the case settled on the basis of a Part 36 offer which did not specify what was to happen to costs incurred against the remaining Defendants and to generic costs. It is open to the parties to agree a different outcome, preferably recorded in a consent order.