Robert Mark Whetstone (trading as Whelby House Dental Practice) v Medical Protection Society Ltd (sued as Dental Protection Ltd)

JurisdictionEngland & Wales
JudgeHis Honour Judge Richard Seymour
Judgment Date08 April 2014
Neutral Citation[2014] EWHC 1024 (QB)
Date08 April 2014
CourtQueen's Bench Division
Docket NumberCase No: HQ12X00737

[2014] EWHC 1024 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

His Honour Judge Richard Seymour Q.C.

(sitting as a Judge of the High Court)

Case No: HQ12X00737

Case No: HQ13X03579

Between:
Robert Mark Whetstone (trading as Whelby House Dental Practice)
Claimant
and
Medical Protection Society Limited (sued as Dental Protection Limited)
Defendant
Jane Lelliott
Claimant
and
(1) Mark Whetstone
(2) Nigel Sudworth
Defendants

and

Medical Protection Society Limited (sued as Dental Protection Limited)
Third Party

Simon D. Butler (instructed by Attwaters Jameson Hill) for Mr. Whetstone

Philip Jones (instructed by Stone Rowe Brewer LLP) for Mrs. Lelliott

Alexander Hutton Q.C. (instructed by Clyde & Co. LLP) for Medical Protection Society Ltd.

Mr. Sudworth did not appear and was not represented

Hearing dates: 18, 19, 20, 21, 24 and 25 March 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

His Honour Judge Richard Seymour QC

His Honour Judge Richard Seymour Q.C.:

Introduction

1

The claimant in action HQ12X00737, who was also the first defendant in action HQ13X03579, is usually known as Mark Whetstone. He is a dentist and practises as such under the name "Whelby House Dental Practice" from premises at 33, London Road, Old Harlow, Essex. For many years, since, I think, 1987, Mr. Whetstone has been, and he remains, a member of Medical Protection Society Ltd. ( "MPS"). MPS was the defendant in action HQ12X00737 and the third party in action HQ13X03579. MPS was sued in both actions under the name Dental Protection Ltd. ( "DPL"). DPL is a wholly-owned subsidiary of MPS, but its only role, as I understand it, is to promote to dentists the benefits of membership of MPS. No point was taken in either action with which this judgment is concerned that in fact the proper party was MPS, rather than DPL, but for the avoidance of confusion it is appropriate to refer in this judgment to MPS rather than to DPL.

2

Mr. Whetstone owned, and owns, beneficially the practice ( "the Practice") which he carries on as Whelby House Dental Practice. However, from about 1998 until 29 July 2009 another dentist, Mr. Nigel Sudworth, the second defendant in action HQ13X03579, was an "associate" of that practice.

3

Mrs. Jane Lelliott, the specimen claimant in action HQ13X03579 for the purposes of this trial, was a patient who was treated by Mr. Sudworth.

4

It was common ground before me that Mr. Sudworth had treated some of the patients whom he saw whilst an "associate" of Mr. Whetstone's practice negligently. A complaint was made against Mr. Sudworth by Mr. Whetstone to the Professional Conduct Committee ( "the Committee") of the General Dental Council ( "GDC") which included allegations of what was described in the charge against Mr. Sudworth as providing "care and treatment [which was] inadequate". In the context "inadequate" seems to have been a synonym for "negligent". The charge contained ten counts of negligent treatment, but each count was divided into a number of subsections. The allegations related to 19 patients and covered the period 14 August 2000 to 29 August 2009, although most of the individually dated allegations were said to have occurred between about 26 January 2006 and about 13 August 2009. Mr. Sudworth was represented at a hearing of the Committee which commenced on 3 July 2012 and his representative admitted all of the charges against him.

5

One of the counts in the charge, count 2(a), alleged that, "You practised dentistry without holding professional indemnity cover throughout the period 11 December 2004 to 11 June 2009". About that allegation the Committee commented in its written decision, a copy of which was put in evidence, that:-

" In respect of your lack [of] professional indemnity cover throughout the period 11 December 2004 to 11 June 2009, the Committee decided that this issue had been resolved by your taking the appropriate measure to obtain retrospective cover to ensure that patients seen within that period are covered."

6

That notwithstanding, the decision of the Committee in relation to all of the admitted allegations collectively was "to erase [Mr. Sudworth's] name from the Dentists Register".

7

By Dentists Act 1984 s.26A, introduced into Dentists Act 1984 by Dentists Act 1984 (Amendment Order) 2005, SI 2005 No. 2011, it is provided, so far as is presently material, that:-

" (1) A registered dentist must be covered by adequate and appropriate insurance throughout the period during which he is registered in the register.

(2) In this section "adequate and appropriate insurance" means insurance of a type and amount which rules under this section specify as adequate and appropriate.

(3) A person seeking registration in the register must supply the registrar with evidence that, if his name were to be entered in the register, he would be covered by adequate and appropriate insurance commencing, at the latest, on the date on which his name was so entered.

(4) A registered dentist seeking the retention of his name in the register must, before the commencement of the period for which he is seeking the retention of his name in the register, supply the registrar with evidence that he is covered by adequate and appropriate insurance.

(5) A person seeking the restoration of his name to the register must supply the registrar with evidence that, if his name were to be restored to the register, he would be covered by adequate and appropriate insurance commencing, at the latest, on the date on which his name was so restored.

(6) …

(7) …

(8) If a person fails to comply with the requirements of this section, the registrar may –

(a) refuse to register his name in the register;

(b) refuse to restore his name to the register;

(c) erase his name from the register; or

(d) refer the matter to the Investigating Committee under section 27(5)(a) as if the person's failure to comply with the requirements of this section constituted an allegation that his fitness to practise as a dentist is impaired by reason of misconduct for the purposes of section 27.

(9) …

(10) In this section "insurance" means –

(a) a contract of insurance providing cover for liabilities which may be incurred in carrying out work as a dentist; or

(b) an arrangement made for the purpose of indemnifying a person against such liabilities."

8

It does not appear that any rules have been made pursuant to the power in Dentists Act 1984 s.26A(2). Consequently, for the purposes of that section there is no definition of the expression "adequate and appropriate insurance". However, it is plain from the definition of "insurance" in Dentists Act 1984 s.26A(10) that what has to be "adequate and appropriate" is arrangements for indemnity "for liabilities which may be incurred in carrying out work as a dentist", that is to say liabilities which a dentist may incur as a result of providing dental treatment, rather than, for example, liabilities which a dentist may incur as a result of employing other people to provide dental treatment.

9

MPS is incorporated as a company limited by guarantee not having a share capital pursuant to the provisions of Companies Acts 1862 to 1890. It is a not for profit mutual organisation which provides various benefits and services to members. What those benefits are are set out in its Memorandum of Association ( "the Memorandum"), most recently modified on 13 June 2007, in clause 3, and include:-

" The objects for which the Company is established are:

(D) To advise, assist and provide services for, and to procure the provision of advice, assistance and services for, members of the Company ("Members") or those eligible to be Members (whether for reward or not) with regard to any matter affecting in any way (whether directly or indirectly) their professional character, professional interests or professional affairs, including, but without limitation, risk management, quality management and educational or financial services.

(E) To grant such indemnities to such persons as the Council may from time to time think fit in respect of any claims, demands, losses (whether incidental, consequential or otherwise), damages, costs, charges and expenses as may be prescribed by the Council from time to time;"

10

It does not appear that the Council of MPS has prescribed any particular matters for the purposes of clause 3(E) of the Memorandum. However, the Articles of Association of MPS ( "the Articles"), as amended on 13 June 2007, include:-

" 40(1) An indemnity pursuant to clause 3(E) of the memorandum of association of the Society may be granted by the Society to any qualifying applicant in respect of a qualifying claim and all losses (whether incidental, consequential or otherwise), damages, costs, charges and expenses connected with a qualifying claim. The grant of an indemnity shall be entirely in the discretion of the Council, who shall have the power to impose such terms and conditions on the grant of any indemnity as it thinks fit, and may in its absolute discretion limit or restrict such indemnity or decline altogether to grant the same.

(2) A qualifying applicant is any Member or the personal representative of such Member acting in that capacity. A Former Member and a Suspended Member (or their personal representatives acting in that capacity) may be a qualifying applicant in respect of any qualifying claim relating to the period prior to the termination or suspension (as the case may be) of the membership of the relevant Member.

(3) A qualifying claim is, subject to any restrictions which may be stipulated or imposed as a condition of membership in any particular case or...

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