BAE v Bowmer & Kirkland and ors

Citation: Queen's Bench Division (TCC)

In an application for costs, the claimant sought an order that one defendant be liable for the costs of another defendant. The claimant had commenced proceedings against several defendants in respect of the defective design and construction of a concrete floor slab. The claimant was a purchaser of land after its development and was granted collateral warranties by the first four defendants but had little knowledge of the progress of the works. The first defendant was the design and build contractor for the redevelopment works. The remaining three defendants were sub-contractors and design consultants. It had become apparent after service of the defences that the second defendant had not undertaken works related to the slab. The claimant accordingly discontinued its claim against the second defendant. The claimant sought an order that the first defendant be liable for the costs of the second defendant on account of the first defendant’s failures to provide the claimant with sufficient information to enable it to properly understand the second defendant’s scope of work.

Jefford J held that although the claimant could not be criticised for issuing against all potential defendants, it had taken the risk of doing so for costs purposes and that risk had not been transferred to the first defendant. Therefore there was no good reason to depart from the usual costs order on discontinuance under CPR 38.6 and the claimant was ordered to pay the second defendant’s costs.

Calum Lamont acted for the claimant.


Calum Lamont KC

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