Alleged negligent dental treatment: Court of Appeal considers who claimant should sue

8th December 2021

Why is Pawley v Whitecross of interest to the healthcare/dental sector?

The Court of Appeal’s judgment was released on 2 December 2021. The case [1] will be of interest to the healthcare sector, most specifically the dental industry, because it addresses the crucial but contentious issue of whether the dental practice, or the individual dentist practitioner(s), or both, are the suitable party to answer allegations made against them.

The case is also of wider, general interest on the question of joining of additional parties to proceedings, in circumstances where one party does not consent to this.

What are the key takeaway points?

When considering whether claims for alleged negligence in dental treatment are properly brought against the dental practice, or whether the individual dentists should be involved, there are many potential issues at play. A defendant dental practice may contemplate applying for individual dentists to be joined to proceedings.  However it would seem, in light of this decision, that succeeding in such an application is anything but straightforward, because requiring a claimant to make a claim against someone they have chosen not to sue is wrong in principle.

This is the most recent decision among a few with similar facts within the dental industry, including Hughes v Rattan [2]. It will be interesting to see whether future applications in similar circumstances will be decided in the same way.  Walker Morris will monitor and report on any key developments.

We will also provide an update on the substantive decision on liability in this case, and the impacts of it, once this has been decided.

What happened in the particular case?

Ms Pawley, the claimant, was a patient of the defendants’ dental practice. While a patient, Ms Pawley was treated by various dentists at the practice. She issued proceedings against the dental practice entities, and not the individual dentists, alleging that the dental treatment she received was negligent.

Ms Pawley sued the dental practice on the claimed basis that the dental practice owed her a non-delegable duty of care and that it is vicariously liable for the negligence of the individual dentists. The negligence issues and liability have not yet been decided, but there have been some interesting procedural points arising.

The dental practice applied to the court to join the individual dentists as additional defendants to Ms Pawley’s claim. The lower courts had allowed this application, and Ms Pawley was appealing those decisions at the Court of Appeal on two grounds: (1) that they had failed to give adequate weight to the fact that Ms Pawley, the claimant, could not be forced to bring proceedings against defendants and potentially become liable for their costs; and (2) that the wrong test had been applied by the lower courts.  Ms Pawley argued that the issue of necessity should be the threshold for such decisions, and not the test of desirability (which involves taking into account all the circumstances, including the overriding objective).

The Court of Appeal noted in this decision that “it is not uncommon for patients to sue the practice and not the individual dentists, for sensible reasons”, such reasons including the potential difficulty in attempting to trace all individual dentists and/or where such individual dentists do not have professional indemnity insurance. The Court went on to note that limiting the number of defendants can simplify negotiations and also limit the burden of costs. On the other hand, the Court of Appeal observed that it is also not uncommon for the dental practices that are being sued to apply to join the individual dentists as additional defendants to the proceedings. The appeal was in this context.

What did the Court of Appeal decide?

The Court of Appeal allowed Ms Pawley’s appeal, meaning that the proceedings will now continue against the dental practice only.

On ground 1, the Court of Appeal found that inadequate weight had been given by the courts below to the principle that “it would be nonsense if a defendant could join another defendant into the proceedings against the claimant’s wishes, in circumstances in which that claimant would then become potentially liable for the costs of the new defendant”. The Court of Appeal did observe that the rules are wide enough to give the court the power to add a party as a defendant, even where the claimant is opposed to this, but went on to say that it is wrong in principle for the court to exercise that power.

As the appeal was allowed on ground 1, it was not necessary to reach a concluded view on ground 2. However, it was noted that a threshold test of desirability (including the consideration of all the circumstances and the application of the overriding objective) would not have been satisfied in this case.

The general consensus from this decision was that requiring a claimant to make a claim against someone they have chosen not to sue is wrong in principle. There may be exceptional circumstances in which a defendant can be added where the claimant advances no claim against them, but there were no such circumstances in this case.

[1] Pawley v Whitecross Dental Care Ltd & Others [2021] EWCA Civ 1827

[2] [2021] EWHC 2032 (QB)