England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Bristol County Court
His Honour Judge Lambert
BS204043

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2006

Lord Justice Waller :

Introduction

1. The appellant (Mr Garrett) was doing some building works at his home in October 2001. The respondent (Mr Moon) was employed as a delivery driver by C H Kendal and Sons and on 10^th October 2001 was delivering three and a half pallets of heavy concrete blocks to Mr Garrett. In the course of unloading the blocks, certain blocks became unstable and fell off the lorry. The fall caused Mr Moon to lose his balance and he rolled into a pit and suffered serious back injury. He brought his claim against Mr Garrett and against his employers, C H Kendal and Sons, joining also their successors in title, Travis Perkins plc (to both of whom I shall simply refer hereafter as "the employers").
2. His Honour Judge Lambert, by a judgment delivered on 6^th December 2005, found Mr Garrett liable but dismissed the claim against Mr Moon's employers. He ruled on the same day that Mr Garrett should pay the costs of not only Mr Moon but the defendants, against whom Mr Moon's claim had been dismissed.
3. Mr Garrett appeals the judge's decision on liability and, if unsuccessful in that, the judge's decision on costs. The judge's decision on liability was based on the Occupiers' Liability Act 1957, the judge declining to hold that the Construction (Health, Safety and Welfare) Regulations 1996 imposed any duty on Mr Garrett vis à vis Mr Moon. Mr Moon, by a respondent's notice, seeks to uphold the judge's decision on liability on the alternative ground that the 1996 Regulations do apply so as to impose a duty on Mr Garrett vis à vis Mr Moon.

The facts in more detail

4. Mr Garrett was carrying out buildings works at his property during the course of which he was exposing an "undercroft" by emptying it of rubble. He had, by 10^th October 2001, created a pit or excavation. His intention was to lay concrete beams across the top of the pit in order to create a floor for a garage that he was then going to build. The pit was to be open and exposed for a period of about a week and a half. The pit was found by the judge to be just over two metres deep.
5. Mr Moon had already delivered one load of blocks to Mr Garrett's house on 10^th October 2001. When he made the first delivery there was no netting around the pit. By the time he came to make the second delivery there had been placed round the pit an orange netting attached to metal poles. The judge had and we also have photographs of that netting as it was after the accident.
6. On this second occasion Mr Moon unloaded two of the pallets of blocks then turned the lorry around to face the other way so that he could then unload the other pallet and a half. He parked the lorry on a track running through Mr Garrett's property. That track, according to the plan with our papers, passed at an angle to the pit. The unloading appears to have taken place on the edge of the track nearest to one corner of the pit. There was some dispute even before us as to precisely how far the edge of the track was from the edge of the pit, estimates ranging between ten and six feet. I am doubtful whether anything turns on the difference. There was a slope between the edge of the track and the pit. Again, there was some dispute as to precisely where the slope started and precisely where it finished. On any view the ground was made up ground. As a plan shows, the original ground had a significant slope, which would have meant that anyone rolling down the same would have been prevented from rolling into the pit by its wall. But, as at 10^th October, earth had been piled against the wall, leaving only some nine inches of the wall round the pit.
7. As Mr Moon attempted to unload the blocks, for reasons which no-one was able to explain, the blocks started to fall towards Mr Moon. The sight of the falling blocks caused Mr Moon to step back with a degree of urgency. He somehow lost his footing, catching his heel. He fell to the ground and then rolled sideways down the slope into the orange netting and over the wall that formed the sides of the pit. He fell into the pit and seriously injured his back. It would seem, looking at the photographs, and accepting the submission of Miss Plowden, who appeared on the appeal for Mr Moon, that the effect of the orange netting was, if anything, to provide a means to facilitate the rolling body over the nine inches of wall. The orange netting on any view formed no barrier to prevent a body rolling into the pit.
8. The critical issue for the judge, once he had dismissed the claims against Mr Moon's employers, was whether Mr Garrett should have guarded the pit by a structure which would have prevented anyone who slipped and rolled entering the pit.

The judge's findings

9. The judge found that :-

"Due to a combination of his moving back, due to fear of falling blocks and a slightly undulating surface, I find that he lost his footing, fell, rolled and went into the pit. A safety rail would have left him substantially uninjured."

10. He further found (in the context of the claims against the employers) that:-

"The unevenness of the ground was a slightly contributory factor to the fall, but the ground was not so uneven so as to found any liability in negligence and/or breach of statutory duty by virtue of its unevenness. A polished surface cannot be expected on a building site. Some degree of unevenness of ground must be present on building sites, and indeed the unevenness to be observed in the photographs can hardly be such as to give rise to liability for any tripping or slipping, based on a reasonable condition test for a building site."

11. So far as the liability of Mr Garrett under the 1996 Regulations is concerned I will return to that when dealing with Mr Moon's Respondent's Notice. Suffice it to say at this stage that the judge held that those Regulations did not apply to Mr Moon, since he was "acting as a delivery driver", whereas the Regulations applied to "construction work carried out by persons at work" which he interpreted as "construction workers" as such. Thus it was that the judge considered Mr Garrett's liability by reference to the Occupiers' Liability Act and negligence, in relation to which he said "the two seem to me to go hand in hand", a proposition which was not challenged.
12. The judge quoted s.2(2) of the Occupiers' Liability Act. The obligation under that section is "to take such care as in all the circumstances of the case is reasonable to see that the visitor would be reasonably safe in using the premises for the purpose for which he is invited to be there." He then found that "the nature of the hazard here present was extreme, and I must take that into account when assessing whether or not a duty of care was in fact complied with, both under the Act and in negligence."
13. His finding was:-

"The danger of an unguarded pit in excess of two metres deep and with a solid base is self evident. The pit was, I find, close to an area where building supplies were going to be unloaded and where people were working. The traffic around it was regular and significant. This was not an isolated, private place where only a few might resort. The fact that it was only going to be left open and a hazard for a week and a half is of note, but the hazard was potentially an extreme one. The first defendant (Mr Garrett) was aware that the pit posed some danger. He had purchased and erected a warning fence and it was just that. It was quite inadequate, as I find it to be, to prevent people from falling in.

The first defendant (Mr Garrett) had instructed men to work in close proximity to the pit. He knew supplies were being delivered. He knew they were being unloaded in the vicinity by lorries. I reject the contention that this fall was an event so peculiar that it could be excluded from reasonable consideration, and I find that a fall into the pit is a reasonably foreseeable matter. (Mr Garrett) should have been aware of the proper requirements for safety, to the extent that a reasonable man would have been. He pleads ignorance before me. I accept his evidence of his ignorance but I find that he should not have been so. Reasonable care on looking to this pit requires a reasonable man in his position to see that visitors could have fallen into the pit. It may only be a risk of short duration, but it was reasonably foreseeable that the consequences could be catastrophic and in those circumstances anyone looking at this situation would reasonably have seen that it should have been guarded against. . . . The risk of stumbling, tripping, slipping, rolling, falling, or any combination of those, was plain and should have been self evident. The risk of very serious injury was blindingly obvious with a drop of this height onto a solid surface. It seems to me that it is plain that (Mr Garrett) was under a duty to erect a strong fence or guard around the pit, in such a way as to prevent a person stumbling, tripping, slipping, rolling, falling, or any combination of those, into the pit. That he failed to do. "

The submissions for Mr Garrett

14. Counsel for Mr Garrett emphasised that the duty under the Occupiers' Liability Act was owed to the particular visitor invited on the land. The submission was that Mr Moon was a delivery driver invited to unload his lorry on the track at least three metres from the edge of the pit. The falling of blocks during the unloading was a totally unforeseeable event. Mr Moon's own evidence was that he simply had to place the blocks on the ground and there was no suggestion that he had to walk anywhere, let alone near the edge of the pit. The ground was not uneven. There was no slope of any significance. There was no reason for Mr Garrett to anticipate that the unloading of the blocks would involve the risk of them falling off in such a way as to cause Mr Moon to step backwards so quickly that he then lost his balance, fell to the ground backwards and rolled sideways some three metres into the pit.
15. The submission was that by finding that the presence of this pit on private land gave rise to a duty to a delivery man not required to carry out his work so close to that pit that he was at risk of falling in, the judge was setting a standard of care far too high for an ordinary householder and was setting it at a level more akin to that of the employer of construction workers on construction sites.
16. In the alternative it was submitted that the judge should have made a finding by reference to s.2(4)(a) of the Occupiers' Liability Act. Under that subsection it is provided:-

"Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe."

17. The submission on behalf of Mr Garrett was that the claimant was fully aware of the pit. There was the orange netting, which gave a further warning of the presence of the pit. Thus there was ample warning to Mr Moon of the danger which the pit offered and the judge should, on that basis, have held that Mr Garrett was not in breach of his s.2(2) duties in those circumstances.
18. Miss Plowden's submissions on the Occupiers' Liability Act
19. Miss Plowden submitted that it was wrong to characterise Mr Garrett as "an ordinary householder" undertaking "minor building works". She accepted that where d-i-y work is generally minor, the standard of an ordinary competent amateur, not more, is what is required. However she submitted that where work undertaken by an occupier involves a level of skill and knowledge which would ordinarily prompt an occupier to employ a professional to do the work for him, and particularly where it involves potential danger to others, the occupier ought either to employ such a professional or ought to comply with the standards of the appropriate professional. Miss Plowden drew support for this submission from paragraph 12-33 of Clerk and Lindsell on Torts, 19^th Ed, which says:-

"In general, it is not a breach of duty for the occupier himself to undertake minor repairs such as fixing a handle to a door. Moreover, if he does so he will only be held to the standard of the reasonably competent amateur. However, he may be in breach of duty if he undertakes to do himself work involving such highly specialised skill and knowledge that an ordinary occupier would employ experts to do it for him, such as electrical wiring, the maintenance of lifts, the installation of boilers and the like."

20. That passage by a note refers to Wells v Cooper [1958] 2QB 265 at page 274 for support. If support is to be gained from page 274 it may, I think, be by inference, but as a proposition it clearly makes sense. At page 274 it is of interest that Jenkins LJ also stated:-

"Each case of this kind depends on its own particular facts, to which the broad principle of reasonable care must be applied with common sense. The task of finding the facts and applying the principle to them is eminently a matter for the court of first instance."

21. Miss Plowden emphasised that the judge found here that:-

(1) the building works were significant [paragraphs 39 and 16]

(2) that Mr Garrett was employing an architect.

She also relied on the fact that the 1996 Regulations, whatever their applicability as between Mr Moon and Mr Garrett, applied in relation to the work and as between Mr Garrett and his employees/sub-contractors on the site. This latter submission, as it seems to me, has dangers in that it comes close to circumventing the requirement that so far as breach of statutory duty is concerned the duty must be confined to those actually protected by the Regulations.

Discussion and Conclusion on the Occupiers' Liability Act

22. I see the force of the argument on behalf of Mr Garrett that the falling of blocks from the lorry, which started the incident which ultimately led to Mr Moon being injured, was difficult for him to foresee. But that, as it seems to me is not the question. The question is whether it was reasonably foreseeable that a man delivering blocks to the edge of the track, a few feet from this deep excavation, might slip, and if so whether it was reasonably foreseeable that in slipping he might fall into this pit. The fact that this pit was as dangerous as it was heightens the obligation to take care that even unusual accidents may result in serious injury.
23. The judge heard the action and assessed the witnesses and the danger that this pit produced. In my view, following the guidance of Jenkins LJ quoted above, the judge was in the best position to make an assessment as to the reasonable care which should have been exercised by Mr Garrett in the circumstances of this case. Thus I would dismiss the appeal against the judge's decision on the Occupiers' Liability Act.

The Cross Appeal and the 1996 Regulations

24. The 1996 Regulations provide:-

"3 Application

(1) Subject to the following paragraphs of this regulation, these Regulations apply to in relation to construction work carried out by a person at work.

(2) These Regulations shall not apply to any workplace on a construction site which is set aside for purposes other than construction work.

(3) . . .

4 Persons upon whom duties are imposed by these Regulations

(1) Subject to paragraph (5) it shall be the duty of every employer whose employees are carrying out construction work and every self-employed person carrying out construction work to comply with the provisions of these Regulations insofar as they affect him or any person at work under his control or relate to matters which are within his control.

6 Falls

(1) Suitable and sufficient steps should be taken to prevent, so far as reasonably practicable, any person falling.

(2) In any case where the steps referred to in paragraph (1) include the provision of -

(a) any guard rail, toe-board, barrier or any other similar means of protection; or

(b) any working platform,

it shall comply with the provisions of Schedule 1 and Schedule 2 respectively.

(3) Without prejudice to the generality of paragraph 9(1) and subject to paragraph (6), where any person is to carry out work at a place from which he is liable to fall a distance of 2 metres of more or where any person is to use a means of access to or egress from a place of work from which access or egress he is liable to fall a distance of 2 metres or more –

a) there shall, subject to sub-paragraphs (c) and (d) below and paragraph (9), be provided and used suitable and sufficient guard-rails and toe-boards, barriers or other similar means of protection to prevent, so far as is reasonably practicable, the fall of any person from that place. . ."

25. By Regulation 2 "construction work" is defined. I need not set out this definition because it is not in dispute that construction work was being carried out at the home of Mr Garrett But equally clearly Mr Moon was not directly carrying out such work.
26. "Place of work" is also defined as meaning any place which is used by any person at work for the purposes of construction work or "for the purposes of any activity arising out of or in connection with construction work."
27. Mr Edwards did not suggest that the 1996 Regulations did not apply to Mr Garrett insofar as he was employing builders to carry out the construction work. Thus it was accepted that Mr Garrett was in control of the works, but the issue before us, as before the judge, was whether Mr Moon was "a person at work" within Regulation 3(1).
28. Miss Plowden sought to use the interpretation of "place of work" as a guide to the meaning of "a person at work". She suggested that a person involved in any activity "arising out of or in connection with construction work" should be included within the definition of "a person at work".
29. It seems to me that there is force in that submission in that when one goes to Regulation 6(3) the person sought to be protected is "any person" carrying out "work at a place from which he is liable to fall". It would seem to me strange if the persons thought to be protected by this regulation were simply the persons involved in construction work as such. For example, if a workman were simply carrying tea to his fellow workmen on a construction site and required to carry that tea in circumstances where he might fall a distance of two metres or more, I would have thought the regulations were designed to protect him.
30. In my view a workman employed by Mr Garrett to go and collect blocks and bring them back to the site would clearly be a person which these regulations were designed to protect.
31. The fact that Mr Garrett has ordered these blocks to be delivered by a third party and brought to the site to be unloaded in a particular place would seem to me to bring the delivery man within the definition of "a person at work" in relation to construction work.
32. Mr Edwards was inclined to accept that his position on liability would be more difficult if these regulations applied, although he submitted that a question would still arise as to whether Mr Moon was carrying out work at the place from which he was "liable to fall a distance of two metres".
33. The view I have expressed in relation to the construction of the regulations is clearly obiter, but in my view it is not surprising to find that the duty of an occupier who is carrying out extensive building works such as Mr Garrett was carrying out should be under a duty very similar to that which would be owed by a professional builder. As it seems to me, the question under the regulations would be whether Mr Moon was "liable" to fall. Since I have already expressed the view that it was reasonably foreseeable that Mr Moon, as a delivery man, might fall and slip, it follows that I would have also found Mr Garrett liable under these regulation if that question had arisen.
34. Costs Appeal
35. Following delivery of his judgment, counsel acting for the second and third defendants sought an order for the payment of their costs as against Mr Garrett. In so doing he was seeking what is commonly called a Sanderson Order (see Sanderson v Blyth Theatre Company [1903] 2 KB 533). The judge, after fairly short submissions by Mr Edwards for Mr Garrett, made such an order. He reasoned in the following way:-

"There is an application, which is contested, that the second and third defendants' costs should be paid by the first defendant. Obviously there should be a detailed assessment, if I find that they should be so paid. The first defendant denied liability in respect of this matter, and I find that the claimant then reasonably looked elsewhere and looked to his employer to bear some part of the responsibility for an accident which was certainly not the claimant's fault. He would not have looked to his employer had the first defendant admitted liability, as he should have done, as I have now found.

Mr Garrett blamed the employers in correspondence. See page 37 of the trial bundle. He denied he had insurance. He said that he is a man of straw, and then threatened to leave the country after refusing to identify subcontractors who, at best, he hinted, might be responsible and might give him a defence under the Occupiers' Liability Act. At page 118 of the amended defence we see the employer being blamed, and we see in the circumstances the first defendant trying to benefit from an allegation made against the employer.

In all those circumstances, it is fair, just and reasonable that the first defendant should pay the costs of the second and third defendants. In those circumstances I so order, it to be subject to a detailed assessment if not agreed. There is no contest but that the claimant's costs should be paid by the first defendant, there to be a detailed assessment of those costs if not agreed."

36. It seems that the judge did not have cited to him Irvine v Commissioner of the Police for the Metropolis [2005] EWCA Civ 129. In that case the Court of Appeal had to consider whether a judge, who had refused to make a Sanderson order (or indeed a Bullock order) see Bullock v London General Omnibus [1907] 1KB 264), had exercised his discretion appropriately. The court in that case held that the judge had exercised his discretion properly, and in so doing considered certain of the factors which might or might not be present in considering whether it was appropriate to make a Sanderson or indeed a Bullock order. Paragraphs 17 – 19 and paragraphs 22 – 31 I will gratefully adopt as spelling out the relevant considerations:-

"17.       Mr Featherby was not the pleader of the original or the amended particulars of claim, and only came into the case shortly before trial. Before us he argues that the judge should have made a Sanderson order requiring the first defendant to pay the second and third defendant's costs. He submits that under CPR 44.3: (1) the court has a discretion as to whether costs are payable by one party to another; (2) the court must have regard to all the circumstances; (3) the circumstances include the conduct of the parties, and whether a party has succeeded on part of his case even if he has not been wholly successful; and (4) the conduct of the parties includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.

18.       These submissions are not controversial. They are taken from the relevant rule. But they omit the statement of the general rule in Rule 44.3 that the unsuccessful party will be ordered to pay the costs of the successful party (Rule 44.3(2)(a)), and the provision that the conduct of the parties to which the court must have regard includes the manner in which a party has pursued his case (Rule 44.3(5)(c)).

19.       Mr Featherby drew our attention to the remarks of Keene LJ in King v Zurich Insurance Company [2002] EWCA Civ 598, at paragraph 33, as to the approach which the courts had adopted prior to the CPR but which this court was continuing to adopt, that is to say:

"... where a plaintiff had behaved reasonably in suing both defendants he should not normally end up paying costs to either party even though he succeeded only against one of the defendants."

. . . .

22. There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant's costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed.

23. The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd[1948] 1 KB 515). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed..

24.       The circumstances in which the court makes such an order are stated in the White Book 2004, paragraph 44.3.8, as follows:

"Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant's costs."

25. I stress the words "in the alternative". That accords with the way the jurisdiction is expressed in both the Bullock and the Sanderson cases, and by Lord Brandon, giving the only reasoned judgment in the House of Lords, in Bankamerica Finance Ltd v Nock [1988] AC 1002, at page 1011, where the fact that the claims against the two defendants in that case were in substance alternative claims, on which the claimant was bound to succeed on one and could not have succeeded on both, was relied on as showing that the court had power to make a Bullock or Sanderson order.

26.       Such is the width of the language of Rule 44.3(1) that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order. The judge had this in mind when she said that this was not a classic case for making the order.

27.       A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other. In Mulready v JH & W Bell Ltd [1953] 2 All ER 215, the first defendant had contracted with the second defendant to construct a factory for the second defendant. The first defendant employed a sub-contractor to do part of the work. The plaintiff, an employee of the sub-contractor, fell from the factory roof, sustaining serious injury. He successfully sued the first defendant for breach of duty under the Building Regulations for failing to take suitable precautions to prevent him falling. He unsuccessfully sued the second defendant for breach of duty under the Factories Act in failing to provide means to ensure his safety while working on the roof. The trial judge, Pearson J, made a Bullock order. This court set that order aside because the causes of action against the defendants were different and depended on different facts. Lord Goddard, giving the judgment of this court (himself, Birkett and Hodson LJJ), said this at page 219:

"A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other."

28.       Mr Featherby sought to distinguish this case on the basis that the first defendant had not sought to put the blame on the second defendant; but, as is apparent from the passage which I have cited, that is only a difference in fact and the reasoning of this court did not depend on that.

29.       I do not say that this factor is necessarily determinative, but it is a relevant consideration. The judge was of course fully aware in the present case of what was the cause of action on which the claimant had succeeded and on what causes of action the claimant had failed.

30.       An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant's conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed. The case of Besterman v British Motor Cab Company Ltd [1914] 3 KB 181 provides the classic example of when it is appropriate to make the order. The plaintiff was injured in a collision between a taxi and a bus and did not know which was at fault, and sued the owner of the taxi as well as the owner of the bus.

31. A significant factor is likely to be whether one defendant puts the blame on another defendant. But as Mr Featherby rightly conceded, the fact that one defendant blames another does not in itself make the joinder of the other reasonable. It must depend on the facts available to the claimant, and in particular whether the claimant can sustain a claim against the other defendant. Defendants frequently blame others when things go wrong, but it does not follow that the claimant is thereby given liberty to sue the others at the expense of the defendant against whom the claimant succeeds."

37. As I have said, Irvine was concerned with whether a decision of a judge refusing to make either a Sanderson or a Bullock order should be upheld, but if the judge, having weighed up matters, decided to make a Sanderson order, there may have possibly been more to argue about (particularly in the light of Keene LJ's dictum quoted in the above passage). Ultimately the court's decision was that the judge's exercise of discretion should be upheld.
38. It seems to me that the above citation demonstrates that there are no hard and fast rules as to when it is appropriate to make a Bullock or Sanderson order. The court takes into account the fact that, if a claimant has behaved reasonably in suing two defendants, it will be harsh if he ends up paying the costs of the defendant against whom he has not succeeded. Equally, if it was not reasonable to join one defendant because the cause of action was practically unsustainable, it would be unjust to make a co-defendant pay those defendant's costs. Those costs should be paid by a claimant. It will always be a factor whether one defendant has sought to blame another.
39. The fact that cases are in the alternative so far as they are made against two defendants will be material, but 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 whose costs is peculiarly one for the discretion of the trial judge.
40. In the instant case, when solicitors for Mr Moon sent a letter of claim to Mr Garrett, dated 2^nd January 2002, they received a response by letter dated 4^th January 2002, which seemed to indicate that if court proceedings were taken the employers would be likely to become involved either as co-defendants or as a party joined by Mr Garrett. Furthermore, the letter indicated the way in which Mr Garrett was likely to fight the claim. The last two paragraphs of that letter read:-

"This letter is being copied to CHL Kendall because it is relevant to them. As an observer, there are criticisms to be made of both parties, and no doubt if this matter proceeds to Court, negligence will be directed to both Mr Moon and CHL Kendall. As in all such cases, accidents are not as per definition "by chance" but are usually caused by avoidable human errors of judgment, with usually no single cause, but rather a combination of reasons resulting in the ultimate event.

I trust that this statement will be of help, and I can confirm that for your purposes I do not hold any property insurance, and therefore please do not expect there to be a pot of gold at this end of Horsecombe Vale. I will promise you that I will vigorously defend my position, and although I have a Lawyer brother, I will not resort to using his services or any of the other Lawyers I use for my business affairs. Just accept that I am a man of straw, and there is no money within your reach."

41. This last paragraph is not one of which Mr Garrett was proud, which may explain why originally in our Court of Appeal bundle a copy of this letter appeared with a different last paragraph.
42. When proceedings were commenced on behalf of Mr Moon the employers were not initially joined as parties. Furthermore Mr Garrett did not seek to join them, but just prior to the expiration of the limitation period Mr Moon's advisors joined Mr Moon's employers. In the points of claim they alleged breaches of health and safety regulations. It cannot be said that those were frivolous allegations. Indeed the judge in his judgment appears to have decided the case in favour of the employers on the basis that the injury was not caused by any breach of the regulations but by the absence of a fence round the pit.
43. Once the employers were joined, Mr Garrett in his defence did seek to adopt such allegations as had been made against the employers.
44. It seems to me that this is not a case where it can be said that the judge exercised his discretion on any wrong basis. He took into account the way in which Mr Garrett had responded to the claim made on behalf of Mr Moon, both in laying blame on the employers and in making the threat in the last paragraph of the letter.
45. It seems to me the judge was right to take the view that it was reasonable to join the employers. They may not have been liable in the alternative in the one sense of that word, but they were a party who might have been found liable, and were a party on whom Mr Garrett did seek to place the blame.
46. I would dismiss the appellant's appeal against the judge's decision to order Mr Garrett to pay the employers' costs.

Lord Justice Jacob : I agree

Sir Peter Gibson : I also agree