Background

The Claimant had brought a claim for noise induced hearing loss against six Defendants. The claim had been compromised against three Defendants by way of a Tomlin Order, allowing for the Claimant to recover damages and costs of the action against those three parties. The Claimant then discontinued his claim against Venduct, who then sought to recover its costs out of the damages the three paying Defendants had agreed to pay to the Claimant.

At first instance, the District Judge held that the successful Defendant could not recover their costs as the damages arose out of the Tomlin Order and not an Order of the court.

The Issues

The Defendant’s appeal was leapfrogged directly to the Court of Appeal to consider this fundamental question under the QOCS regime, namely the entitlement of a Defendant to enforce an adverse costs order against damages recovered by a Claimant from an unsuccessful co-Defendant.