The Dekagram: 17th August 2026

In this week’s edition of the Dekagram Linda Nelson addresses the complexities posed by the incidence of costs orders in multi-party litigation, whilst Sarah Prager KC considers the position when a claimant wishes to substitute a defendant after the expiry of the relevant limitation period. In both cases readers will readily appreciate that pre-action correspondence with half an eye to possible future developments will be key in underpinning any application that may later be made.

Pashamov v Taylor: a reminder of the circumstances in which a Sanderson order is appropriate

The judgment in the case of Pashamov v Taylor [2025] EWHC 1644 (KB), handed down on 30 June 2025, offers a useful indication of the factors that will be taken into account by the courts when considering costs orders in multi-party litigation.

The claimant (“C”) sued two defendants in negligence for injuries and loss caused by a road traffic accident. The First Defendant (“D1”) was the driver of the car which collided with C as he crossed a road and the Second Defendant (“D2”) was Cs employer. At trial Simon Tinkler, sitting as a Deputy Judge of the High Court, determined that D1 had no liability to C and D2 was liable to C for 65% of the losses suffered. There was no dispute that D2 was liable to C for the costs of bringing the claim against D2. In respect of the unsuccessful claim against D1, the parties disagreed as to whether D2 should also be liable for Cs costs of bringing that claim, and whether D1s costs were payable by C or D2 by way of a Sanderson order (although it was agreed that the court had the power to make those orders).

Any order against C in respect of D1’s costs would have a materially deleterious effect on his damages. C benefited from the costs protection of QOCS (Qualified one-way costs shifting, pursuant to CPR 44.13 and 44.14) meaning that any adverse costs order could only be enforced to the extent of any order for damages and interest in Cs favour. (The claim was issued in 2022 and the CPR rules prior to 6.4.23 therefore applied. For claims issued after that date, the rules now provide that the cap on enforcement of adverse costs orders is by reference to any damages, costs and interest received pursuant to any order, agreement or settlement.) In claims against one defendant only, a losing claimant is therefore protected from the enforcement of an adverse costs order. However, (per Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654) where there is more than one defendant, if a claimant succeeds against one defendant and therefore receives damages, costs orders in favour of the successful defendants can be enforced by reference to the damages payable by the losing defendant(s).

Although the general rule for costs is, per CPR 44.2(2)(a), that the unsuccessful party will be ordered to pay the costs of the successful party, 44.2(2)(b) provides that ‘the court may make a different order’ and the court has discretion as to whether costs are payable by one party to another (44.2(1)(a)).

In determining the issue of D1’s costs, the judge took note of the principles outlined in King v Zurich Insurance Company [2002] EWCA Civ 598; Irvine v the Commissioner of Police for the Metropolis [2005] EWCA Civ 129and Moon v Garrett [2006] EWCA Civ 1121, and considered the following:

• Did C behave reasonably in suing both defendants? (If so, it would be harsh if he ends up paying the costs of the successful defendant);
• Was there a sustainable cause of action against the successful defendant, so that it was  reasonable for C to join them? (If not, it would be unjust to make the losing defendant pay the costs of the successful defendant);
• Did one defendant seek to blame another?;
• Was the case against each defendant in the alternative? (If so, so that the claimant cannot succeed against both, that is the ordinary circumstance when a Sanderson or Bullock order is made);
• Even if the claims were not truly alternative, that does not mean that the court does not have the power to order one defendant to pay the costs of another;
• The question of who should pay those costs is peculiarly one for the discretion of the trial judge.

In considering the issue of C’s costs of claiming against D1, the court also took note of the determination of the court in Jabang v Wadman [2017] EWHC 1993, that part of the purpose of a Bullock or Sanderson order is that the claimant’s victory ought not to be eroded by paying the costs of the successful defendant, or having to meet his own costs of the unsuccessful claims against that defendant. The judge in Pashamov noted that he had been shown no authority of a case where a court has made a Sanderson order but has not required the unsuccessful defendant to pay the claimant’s costs of the claims against the successful defendant.

In respect of the questions for consideration and in exercising its discretion, the court held:

1. It was reasonable for C to sue D1: even though C failed to prove negligence on the part of D1, that determination by the court was made only after forensic assessment of the evidence, including expert evidence as to the collision. The fact that the police report (which was, at best, reporting what the police had been told) concluded that C was entirely to blame for the accident, was not direct evidence on which a sensible and well-advised claimant would base their decision whether to sue D1. 
2. Although D2 did not seek to blame D1, that was because it did not need to because C had already blamed D1, and D2 stood to benefit from the claim against D1. D1 had sought to blame D2.
3. Although D2 argued that the claims against each of the defendants were different in nature (the claim against D1 being for negligent driving, the claim against D2 being for failing to provide a safe system of work), the claims were closely related and arose out of the same incident. Had two separate claims been issued, the court may well have consolidated the proceedings.
4. Although the court doubted the claimant’s assertion that he would not have sued D1 had D2 accepted liability at the start (the doubt arising from the fact that D2 alleged contributory negligence, and so it would still have been in C’s interests to sue D1), it was noted that if C had not sued D1, it was possible that D2 would have done so.
5. The court rejected D2’s submissions that much of the cost of the trial was caused by issues solely between C and D1 (including expert evidence about the accident): the evidence at trial was highly relevant to the question of the relative liability of D2 and C.
6. There would be material prejudice to D1 if his costs were payable by C, both in timing and, ultimately, in his ability to recover them if C and D2 were to settle quantum other than by court order (again, the case being subject to the QOCS rules applicable prior to 6.4.23, pursuant to the decision in Cartwright, if the parties were to settle the issue of quantum by way of a Part 36 offer or settlement contained in a Tomlin order, there would be no ‘order for damages’ against which D1 could enforce its costs order).

Given those findings, the court concluded that it would be harsh for C’s damages to be eroded by paying the costs of D1; a Sanderson order was the appropriate order and D2 should also pay C’s costs of the claim against D1.

About the Author

Linda Nelson was called in 2000 and is ranked in both the Legal 500 and Chambers and Partners for her travel law work. Linda regularly advises in international personal injury cases with cross-border issues, particularly those falling within the jurisdiction of the Admiralty Court. She is well-versed in claims involving the international carriage conventions, the package holiday regulations, Merchant Shipping regulations, ship collisions and issues of jurisdiction, applicable law and limitation. She is a contributing author to Munkman on Employers’ Liability (writing the ‘Shipping and Workers on Ships’ chapter) and co-authored ‘Work Accidents at Sea’ (now in its second edition).

Substituting a Defendant after the Expiry of a Limitation Period: Bladon v Bryn Jones Transport Ltd, reported, Leeds County Court, 30^th October 2025

A recent first instance decision of the Leeds County Court offers a stark reminder of the perils of failing to correctly identify a defendant before issuing proceedings, particularly when limitation is about to expire. The case turned on whether the court could permit the substitution of an individual for an entirely unrelated limited company after limitation had passed. District Judge Royle held that it could not, dismissing the application and leaving the claimant without a remedy for property damage valued in excess of £100,000.

The facts

On 25^th July 2018 an HGV carrying agricultural bales collided with a privately owned pedestrian footbridge in Surrey. The bridge’s owner, subsequently the claimant, instructed solicitors to recover damages for the financial losses arising.

In August 2018 the claimant’s insurer intimated a claim to the motor insurer of the HGV, Equity Red Star (“ERS”). ERS’s policyholder was “Mr Bryn Jones”. Pre-action correspondence followed, with ERS correctly and repeatedly identifying their policyholder as an individual, not a company. In May 2024, only weeks before limitation was about to expire, ERS expressly queried the claimant’s apparent belief that Jones was based in Conwy, Wales. The solicitors replied that the address had been “obtained from Companies House.”

It transpired that the solicitors had searched Companies House, found “Bryn Jones Transport Limited” registered in Conwy, and assumed its sole director—a Mr Bryn Alun Jones—was the HGV driver. However, the company was not incorporated until 2020, two years after the accident, and was wholly unrelated to the incident.

One can see how it happened, of course; the author was distraught to discover that the Mr Tom Jones who adorns the Deka Chambers board of practitioners was not, as anticipated, the 60s crooner and heartthrob, but an entirely unrelated Tom Jones variant with an encyclopaedic knowledge of the Court of Protection and public law, but with distressingly little to say on the subject of whether it’s unusual or not. History does not relate whether either of the Bryn Joneses are related to either T. Jones.

Anyway, the claim was issued on 23^rd July 2024, two days before the six year limitation period expired, naming the Conwy company as defendant and pleading vicarious liability for the negligence of its employee, servant, or agent.

The applications

After limitation expired, Keoghs LLP (for Mr Bryn Jones) notified the claimant on 2^nd December 2024 that the correct defendant was the individual, not the company. The claimant sought consent to substitution under CPR rule 19.6, which was refused, and applied formally for substitution on 19^th December 2024. On 5^th February 2025 DDJ Willis granted substitution on the papers. The defendant applied on 12^th February 2025 to set that order aside.

District Judge Royle dealt with the set-aside first as the logically prior question, acceded to it, and re-heard the substitution application de novo.

The legal test

It was common ground that the application was made after limitation had expired. The governing framework is CPR rule 19.6, read with section 35 of the Limitation Act 1980. Under section 35(2)(b), substitution of a new party constitutes a “new claim” deemed to commence on the same date as the original action. Such substitution is prohibited by section 35(3) except where permitted by rules of court and only if section 35(5) is satisfied—that substitution is “necessary” for determination of the original action.

Section 35(6) provides that substitution is not to be regarded as necessary unless the new party is substituted for a party whose name was given in the original claim “in mistake for the new party’s name.” The leading authority is The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201, which establishes that the relevant mistake must be narrowly defined; essentially the circumstances are limited to a misnomer, where the claim accurately describes the correct defendant but gets the name wrong. These applications involve a two-stage inquiry: first the court considers whether the threshold necessity test is met, and then whether its discretion should be exercised under rule 19.6(2).

The judgment

District Judge Royle held that the threshold was not satisfied. The particulars described the defendant as a haulage company vicariously liable for its employee’s negligence. A company cannot drive or be in physical control of a vehicle; an individual cannot be vicariously liable for himself. The statement of case did not describe the correct defendant (an individual driver) using the wrong name—it described a fundamentally different legal person bearing a fundamentally different form of liability.

The judge accepted the defendant’s illustrative analogy: if Old Macdonald’s tractor hit a bridge and, six years later, the claimant sued McDonald’s restaurant in Leeds rather than the farmer, that would not satisfy the test set out in The Sardinia Sulcis. This was not “Bryan with an extra A”—a misspelling—but the suing of an entirely unrelated corporate entity that did not exist at the time of the accident.

The judge rejected the claimant’s arguments that the defendant was identifiable from pre-action correspondence (the test looks to the statement of case, not correspondence); that non-substitution would be a “windfall” (which is irrelevant to the threshold); and that only minor amendments would be needed (no amendment application had been made, and the pleading would need recasting entirely from vicarious to primary liability).

Even had the threshold been crossed, the judge would have exercised his discretion to refuse the claimant’s application. Applying the Denton criteria, this was a serious and significant error made for no good reason. ERS had flagged the issue before proceedings were issued, but the claimant had issued perilously close to limitation and served proceedings only days before the claim form expired. The defendant’s side had done nothing wrong: they engaged legitimately, made clear their insured was an individual, and specifically questioned the Conwy connection. Discretion would not have been exercised in the claimant’s favour, therefore.

The order of DDJ Willis granting substitution on the papers was set aside and the application to substitute was dismissed. The claimant was ordered to pay 95% of Mr. Bryn Jones’s costs, with a modest 5% reduction on a broad-brush basis reflecting a minor criticism of the defendant’s failure to engage earlier with the application.

Comment

This decision reinforces several important lessons. First, and this is the big one, a defendant’s legal identity must be properly verified before issue. A Companies House name match is insufficient; practitioners must confirm that the entity is the party intended to be sued. An individual and a limited company bearing the same name are distinct legal persons, and suing the wrong one is not merely a misnomer correctable after limitation but something of a disaster.

Secondly, the Sardinia Sulcis gateway for post-limitation substitution is a narrow one. It requires a genuine misnomer, where the pleading correctly describes the intended defendant but attaches the wrong label. Where the pleading describes a different legal person with a different basis of liability, the threshold cannot be met.

Thirdly, pre-action awareness by an insurer of the defendant the claimant intends to sue or wishes they’d sued does not cure a misidentification in the statement of case. Section 35(6) looks to the pleading itself, not to prior correspondence or to the parties’ wider knowledge.

Finally, the case illustrates one of the many risks of issuing at the very end of limitation. Had proceedings been issued even slightly earlier, there would have been time to identify and correct the error. Practitioners approaching limitation should build in some margin for error; once limitation expires, the narrow substitution gateway under section 35 may well be closed.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.