Jade Pawley v Whitecross Dental Care Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Stuart-Smith,Lord Justice Underhill |
| Judgment Date | 02 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1827 |
| Docket Number | Case No: B3/2020/1937 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1827
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT SALISBURY
HIS HONOUR JUDGE PARKES QC
E93YX179
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice King
and
Lord Justice Stuart-Smith
Case No: B3/2020/1937
Ben Collins QC (instructed by Dental Law Partnership Ltd) for the Appellant
Andrew Warnock QC (instructed by Weightmans LLP) for the Respondents
Hearing date: 27 October 2021
Approved Judgment
Introduction
This appeal arises out of facts that are unexceptional and give rise to an issue that arises routinely in the same or similar circumstances. The Claimant was a patient at the Defendants' dental practice between 2012 and 2018. During that time she was treated by four different dentists at the practice, to whom I shall refer collectively as “the Dentists”. On 26 September 2018 she issued these proceedings in the County Court, alleging that her treatment was negligent. She chose to sue the Defendants and not the Dentists, alleging that the Defendants owed her a non-delegable duty of care and that they are to be held vicariously liable for the negligence of those individuals who treated her.
By their defence, the Defendants denied the existence of a non-delegable duty and denied that they are vicariously liable for any negligence on the part of the individual dentists that the Claimant may prove. They pleaded that they “cannot confirm nor deny [the Claimant's] allegations of negligent treatment as this is a matter for the [Dentists], for whom the Defendants are not responsible”. Referring to the expert report served by the Claimant with her Particulars of Claim, the Defendants pleaded that they “note, but do not agree, the report … .” However, they also pleaded that they reserved the right to adduce their own expert evidence to challenge the report “in due course and as directed by the court.”
The Defendants, while maintaining their defence to the claim brought against them, also pleaded that “pursuant to contractual entitlement, [they] reserve the right to pursue contribution proceedings from the [Dentists] and/or join them to these proceedings” but that they did not do so “at this stage in the interests of saving costs and the overriding objective.” This court has no details of any contractual entitlement, though we are told that it is routine in such arrangements for there to be contractual terms which include an obligation upon individual dentists to indemnify the practice against liability it might incur as a result of negligence on the dentist's part.
The Claimant has stuck to her guns and resisted any temptation to join the individual dentists as additional defendants. In doing so, she runs the risk that she may lose against the Defendants even if one or more of the dentists was in fact negligent. However, that is her decision which she has taken with the benefit of advice from reputable solicitors and counsel. This court is not privy to her actual (and privileged) reasons for taking that decision, though her counsel's skeleton argument outlines the sort of considerations that might lead a potential claimant reasonably to decide to sue the practice rather than individual dentists.
Instead of applying to join the Dentists as additional parties pursuant to CPR Part 20, the Defendants applied pursuant to CPR Part 19 to join them as additional defendants to the Claimant's claim. We are told that it is not uncommon for patients to sue the practice and not the individual dentists, for sensible reasons. In some cases it may be difficult or impossible to trace all individual treating dentists; and where individual dentists are traced they may not have professional indemnity cover or may not engage with their insurer. Even if all treating dentists are traced and are insured, difficult questions of causation and apportionment may arise. Separately indemnified and represented dentists may wish to rely upon separate expert and lay evidence and may raise individual defences that create conflicts that are avoided if the Claimant can get home on an allegation against the practice of non-delegable duty or vicarious liability. Limiting the number of defendants limits the number of targets and opponents with whom the claimant has to deal, which should simplify negotiations and limits the burden of costs that will be incurred in the action. Equally, we are told that it is not uncommon for defendant practices that are sued on the basis of alleged non-delegable duties or vicarious liability to apply to join individual treating dentists as additional defendants in the main proceedings rather than joining them as Part 20 defendants. This appeal therefore arises in that general context.
By way of introduction it is sufficient to say that the researches of Counsel have identified one decision of the High Court where a claimant has succeeded on a preliminary issue which raised the question of non-delegable duty or vicarious liability on the part of a dentists' practice in circumstances that appear broadly similar to the facts of the present case: Hughes v Rattan [2021] EWHC 2032 (QB), a decision of Heather Williams QC sitting as a Deputy High Court Judge. We were told that permission to appeal has very recently been granted. That being so, it may be material to record that the Defendants have not applied to strike out the Claimant's claim or for summary judgment pursuant to CPR Part 24, and it has not been submitted to us that the Claimant's claim as originally constituted against the Defendants alone is fanciful.
The District Judge acceded to the Defendants' application. On the Claimant's appeal, the County Court Judge (to whom I shall refer as “the Judge”) upheld the decision of the District Judge. The issue in this appeal is whether the Judge was wrong to reject the Claimant's appeal. In my judgment he was, for the reasons set out below.
The relevant provisions of the CPR and procedural framework
The Judge concentrated on the provisions of CPR Part 19, not least because the District Judge had relied upon them in reaching her decision and the Defendants relied upon them once more before him. However, a proper appreciation of and approach to the issues before the court must also take into account CPR Part 20.
CPR Part 19 is concerned with the addition or substitution of parties into existing proceedings. No question of substitution arises in this case. So far as relevant, CPR Part 19 provides:
“ Parties – general
19.1 Any number of claimants or defendants may be joined as parties to a claim.
I ADDITION AND SUBSTITUTION OF PARTIES
Change of parties – general
19.2
(1) This rule applies where a party is to be added … except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).
(2) The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.
(4) … …
Procedure for adding and substituting parties
19.4
(1) The court's permission is required to remove, add or substitute a party, unless the claim form has not been served.
(2) An application for permission under paragraph (1) may be made by –
(a) an existing party; or
(b) a person who wishes to become a party.
…
(4) Nobody may be added or substituted as a claimant unless –
(a) he has given his consent in writing; and
(b) that consent has been filed with the court.
…
(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about –
(a) filing and serving the claim form on any new defendant;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings.
Special provisions about adding or substituting parties after the end of a relevant limitation period
19.5
(1) This rule applies to a change of parties after the end of a period of limitation under –
(a) the Limitation Act 1980;
(b) …
(c) … .
(2) The court may add … a party only if –
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition … is necessary.
(3) The addition … of a party is necessary only if the court is satisfied that –
(a) …
(b) the claim cannot properly be carried on by or against the original party unless the new party is added … as claimant or defendant; or
(c) …
(4) In addition, in a claim for personal injuries the court may add or substitute a party where it directs that –
(a) (i) section 11 (special time limit for claims for personal injuries); or
(ii) section 12 (special time limit for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new party; or
(b) the issue of whether those sections apply shall be determined at trial.
Practice Direction 19A provides that an application to add a new party should be supported by evidence (paragraph 1.3), and that a new defendant does...
To continue reading
Request your trial
-
Charlotte Victoria Hassam v Yoann Samuel Rabot
...of relevant limitation periods: see Shade v Compton Partnership [2000] PNLR 218 and Pawley v Whitecross Dental Care Ltd and another [2021] EWCA Civ 1827, [2022] 1 WLR 2577 at [32] and, more importantly, [52]. It is, to my mind, inconceivable that Parliament would have legislated in the ter......
-
Aleph Fabrizio Kraus, A Minor By Eric George Kraus, His Next Friend And Father v All Asset Management (Asia) Ltd And Another
...case can therefore be distinguished on the facts; (2) The plaintiff relied on the case of Jade Pawley v Whitecross Dental Care Limited [2021] EWCA Civ 1827, at [32] to [34]. However, what Stuart-Smith LJ stated was in the context of a claim for damages: ‘no one may be compelled to bring pro......