The Claimant was injured in an accident within her home caused by the defective installation of a bathroom. Proceedings were issued against two Defendants because the true identity of the fitter was unclear. The Claimant was successful against the Second Defendant but unsuccessful against the First Defendant. The unusual feature was that the Second Defendant failed to file a Defence and took no part in the proceedings.

The claim, as it involved personal injury, had the benefit of QOCS protection. Following the Judgment in Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654 there was, however, a significant risk that the damages awarded against the Second Defendant would be extinguished by the Claimant’s cost liability to the First Defendant.

The dereliction of the Second Defendant made it a real possibility that the Claimant would never receive her damages. Unfortunately the trigger for CPR 44.13, allowing the enforcement of costs, is the order of damages and not the receipt of the damages cheque. As such if the Court award the First Defendant costs against the Claimant she could find herself with a personal liability for cost without receiving any damages.

Antonia successfully argued that the Court should exercise its discretion, pursuant to CPR 44.2, to award the First Defendant’s costs against the Second Defendant rather than the Claimant (colloquially called a Sanderson Order). The Court accepted her submission that the Second Defendant’s failure to respond to the claim had increased costs unnecessarily. Further it agreed, when applying the overriding objective, that such an order was just and reasonable having regard to the risk that the Claimant could face a financial detriment over and above that which is envisaged by the QOCS regime.