Radoslav Pashamov (C) was a farm worker employed by D2, who suffered serious injuries when he was struck by D1’s car while crossing a road.  D2 provided a bus service to ferry employees back from various fields to their lodgings (also owned by D2) and C was on his way home on that bus but left it to tell employees on the other side of the road that their bus had arrived and they should get on.

At trial, the claim against the car driver (D1) was dismissed but C succeeded against his employer (D2) on the basis that he had been engaged in activities incidental to his employment (Pashamov v Taylor & Edward Vinson Ltd [2025] EWHC 1035 (KB)).

In a second judgment ([2025] EWHC 1644 (KB)), a Sanderson order was made against D2 which was ordered to pay both C’s costs of pursuing D1 and D1’s costs of defending the claim against C.

The Liability Trial

The main part of the liability trial appears to have focused on the standard evidence that one would expect in an RTA case.  C and D1 both gave evidence, as did the bus driver and some passengers as well as others who came to the scene of the accident; there was photographic and video evidence and collision reconstruction expert evidence on behalf of C and D1.  All this led the Judge (Deputy HCJ Tinkler) to the conclusion that the evidential uncertainty as to the actual speed of D1’s car and as to how long C was in the road prior to impact were such that C could not establish that D1 should have started braking in time to avoid the collision or to reduce his speed by an amount that is material enough to have reduced or eliminated the injuries suffered by C. 

The Judge was then left to consider the potential liability of D2 as employer.  D2’s position was stark and appears to have been to try and steer clear of any involvement in the dispute about the mechanics of the accident and, in particular, not to blame D1 but simply to defend the case on the narrow basis that because C had ceased his paid work, they no longer had any duty to him as his employer. 

The Judge gave this short shrift, referring to quite ancient authority that the course of employment does not end “when the downed tools signal is given or when the actual workshop where he is working is left. In other words, the employment may run its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in time and space…” per Lord Atkin in Weaver v Tredegar Iron & Coal [1940] AC 955 at 966.

Hence, the Judge concluded that there are circumstances in which an employer can be liable to an employee notwithstanding that paid working time has ended, in particular, if he is doing something reasonably incidental to the employment, then the employer will have ongoing duties.

On the facts of this case, the Judge held that the accident clearly occurred within the course of C’s employment not least where it was held that C had been asked by a manager to let other employees know the bus had arrived and where the existence of a risk assessment for the travel to and from site showed that D2 recognised that it was responsible for the safety of employees during this transportation.  It was obviously unsafe to expect C to cross a road with a 60mph limit with no designated crossing place.  The bus driver was also an employee of D2 such that any failings by him as regards where the bus was parked would ground vicarious liability.   

A finding of contributory negligence against C was established at 35%.

The Costs Judgment

D2 conceded that it had to pay C’s costs of the claim against D2.  These were ordered on an indemnity basis where C had made a Part 36 offer on liability which it had bettered.   

D1 had succeeded in avoiding liability and wanted its costs paid but C and D2 could not agree (a) whether C should pay D1’s costs or whether D2 should pay them via a Sanderson order; and (b) whether C’s recoverable costs against D2 should include C’s own costs in bringing the failed proceedings against D1.

In a thorough and tightly reasoned judgment, D2 again ended up on the losing end.

The starting point was the general rule that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.2(2)(a)), albeit the Court may make a “different order” (CPR 44.2(2)(b)) and the Court has a discretion as to whether costs are payable by one party to another (CPR 44.2(1)(a)).  Clearly C and D1 had won and D2 had lost.

The Judge based his analysis of the competing arguments on costs on Moon v Garrett [2006] EWCA Civ 1121, from which he derived the following principles:

  • If a Claimant has behaved reasonably in suing both defendants it will be harsh if he ends up paying the costs of the successful defendant;
  • If it was not reasonable to join D1 because the cause of action was practically unsustainable it would be unjust to make D2 pay the costs of D1;
  • It will always be a factor whether one defendant has sought to blame another;
  • The fact that cases are in the alternative so far as they are made against two Defendants will be material;
  • The fact that claims were not truly alternative 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.

The first of the above principles reinforced the observations of Keene LJ in King v Zurich Insurance Company ([2002] EWCA Civ 598), a pre-CPR case where it was concluded that “…where a plaintiff behaved reasonably in suing both defendants he should not normally end up paying costs to either party even though he succeeded only against one defendant”.

The Judge’s starting point was that it was entirely reasonable for C to have pursued D1 when liability was disputed by both defendants and he had suffered grievous injuries.  The fact that D2 had not blamed D1 for the accident in its pleadings or at trial was a factor against making it liable for D1’s costs.   However, the claims against both parties were closely related and the Judge rejected the suggestion that D2 was a “bystander” at trial in respect of the accident reconstruction issues.  The Judge recognised that this material was highly relevant to the question of contributory negligence, a matter D2 had pleaded and benefitted from at trial.

Practical Guidance

This case highlights the difficulties and risks posed to a defendant contesting liability in multi-defendant cases of value.  

Even where such a defendant attempts to limit its costs exposure by defending the case on a narrow basis and avoiding expert evidence, if the narrow arguments fail and that defendant is left “holding the baby” it will usually be very expensive indeed. 

The unusual facts of this case indicate how rarely the Court will conclude that it is unreasonable to join in multiple defendants in a high value claim.  If that reasonableness hurdle is cleared, a Court will rarely want to erode a claimant’s damages by leaving it unable to pass on costs liability to the losing defendant via a Sanderson order.  Hence, claimants in claims of value, faced with multiple defendants who blame each other or even who deny liability can take a robust approach to joining all against whom there is a plausible case.

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