An issue that arises from time to time, is when in multi-party litigation, it is appropriate for a defendant who has lost a case, to have to pay the costs of co-defendants who have been more fortunate in the litigation and against whom a claimant has in turn lost her case. There are two types of order that can be sought by the claimant. A Sanderson order, would require one defendant to pay another defendant’s costs directly, and is perhaps preferable, where there is a concern about the solvency of the claimant, or indeed complications such as QOCS protection, or a Bullock order, whereby the claimant is ordered to pay the winning defendants costs, but is given liberty to include those costs in its own claim for costs against the losing defendant.
The leading case on the making of a Sanderson/Bullock order remains that of Irvine v Commissioner of the Police for the Metropolis and Others  EWCA Civ 129. In that case, a claim for a Sanderson/Bullock order failed where there were additional claims brought, rather than alternative claims.
The principles set out in the case are drawn from the following passages:
The usual basis for the exercise of the jurisdiction is where a claimant makes alternative claims
The court noted:
23.. The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd  1 KB 515 ). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed.
24.. The circumstances in which the court makes such an order are stated in the White Book 2004, paragraph 44.3.8, as follows:
“Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant’s costs.”
25.. I stress the words “in the alternative”. That accords with the way the jurisdiction is expressed in both the Bullock and the Sanderson cases, and by Lord Brandon, giving the only reasoned judgment in the House of Lords, in Bankamerica Finance Ltd v Nock  AC 1002 , at page 1011, where the fact that the claims against the two defendants in that case were in substance alternative claims, on which the claimant was bound to succeed on one and could not have succeeded on both, was relied on as showing that the court had power to make a Bullock or Sanderson order.
26.. Such is the width of the language of Rule 44.3(1) that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order. The judge had this in mind when she said that this was not a classic case for making the order.
Whether the causes of action are related to each other
The court identified another factor as the degree of connection between the causes of action relied upon against the various defendants:
27.. A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other. In Mulready v JH & W Bell Ltd  2 All ER 215 , the first defendant had contracted with the second defendant to construct a factory for the second defendant. The first defendant employed a sub-contractor to do part of the work. The plaintiff, an employee of the sub-contractor, fell from the factory roof, sustaining serious injury. He successfully sued the first defendant for breach of duty under the Building Regulations for failing to take suitable precautions to prevent him falling. He unsuccessfully sued the second defendant for breach of duty under the Factories Act in failing to provide means to ensure his safety while working on the roof. The trial judge, Pearson J, made a Bullock order. This court set that order aside because the causes of action against the defendants were different and depended on different facts. Lord Goddard, giving the judgment of this court (himself, Birkett and Hodson LJJ), said this at page 219:
“A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other.”
The reasonableness of the claimant’s conduct
A third factor is the reasonableness of the claimant’s conduct in joining the various defendants:
30.. An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant’s conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed. The case of Besterman v British Motor Cab Company Ltd  3 KB 181 provides the classic example of when it is appropriate to make the order. The plaintiff was injured in a collision between a taxi and a bus and did not know which was at fault, and sued the owner of the taxi as well as the owner of the bus.
Co-defendants blaming each other
A fourth factor is whether co-defendants have blamed each other
31.. A significant factor is likely to be whether one defendant puts the blame on another defendant. But as Mr Featherby rightly conceded, the fact that one defendant blames another does not in itself make the joinder of the other reasonable. It must depend on the facts available to the claimant, and in particular whether the claimant can sustain a claim against the other defendant. Defendants frequently blame others when things go wrong, but it does not follow that the claimant is thereby given liberty to sue the others at the expense of the defendant against whom the claimant succeeds.
In addition, the court must have regard to all the circumstances of the case, as it does when making any costs Order: that will include issues of conduct.
It can be seen that the exercise of the discretion is structured and multi-factorial. It is not enough to note that the claimant has won against one defendant and lost against others, and determine who is the successful party. That is only, in a sense a pre-requisite for the discretion to exist, which is concerned with which party should carry the can for the costs, by way of allocation of loss. In Irvine itself, the judge at first instance declined to make a Bullock order, because no pleaded case had been made against the second defendant, and no evidence had been adduced against the third defendant. The claim against the first defendant succeeded on a narrow point of breach of an absolute statutory duty, but failed on allegations of common law negligence. The case was very far removed, from the classical circumstances of a road traffic accident, with multiple drivers all blaming each other.