Additional defendants could not be joined to a dental negligence claim against the wishes of the Claimant.
In this case the Court of Appeal (Underhill, King and Stuart-Smith LJJ) considered the unusual circumstances of a decision to join Defendants to a claim against the wishes of a Claimant.
To see a copy of the judgement, please click here.
The issue arose in the context of a dental negligence claim, and the appeal represents one skirmish in a wider battle between claimants and dental practices (and their indemnifiers) as to the proper way in which claims should be brought in respect of injuries alleged to have been caused by negligence on the part of dental associates – dentists who are viewed for the most part as independent contractors by the practices where they work.
Historically, claims arising out of allegations of negligence on the part of dental associates have been brought against the associates themselves. That has proved to be an unsatisfactory approach for many claimants, for a number of reasons, as the Court noted in this case (at para 5):
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.
In Hughes v Rattan [2021] EWHC 2032 (QB); (2021) 181 BMLR 189 the High Court (Heather Williams QC sitting as a Deputy High Court Judge shortly before her elevation to the High Court bench) held that the dental practice would be liable to a patient if she was injured by the negligence of an associate working at the practice, for two reasons: firstly because the practice owed to her, as a patient, a direct, non-delegable duty of care; and secondly because the practice was vicariously liable for the associate’s negligence. That decision itself followed two County Court decisions reaching the same conclusion – Rhamdean v Agedo and Breakingbury v Croad.
In Pawley the practice argued that it owed no duty to the Claimant, taking essentially the same approach as the Defendants in Hughes, Rhamdean and Breakingbury. But it took another step, namely to apply to join the associate dentists as Defendants to the claim. Significantly, the Defendant did not bring Part 20 proceedings to bring an additional claim for an indemnity or a contribution against the associates. Instead it applied under Part 19 to have the associates joined as Defendants to the main claim.
The power to add a Defendant under Part 19 is widely expressed. CPR 19.1 provides that Any number of claimants or defendants may be joined as parties to a claim. CPR 19.2(2) provides,
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.
CPR 19.4 provides that a Claimant may not be added without her consent; and CPR 19.5 makes provision for the addition of a party after the expiry of a limitation period (put shortly, when limitation has expired a party may only be added where it is necessary, but that strict requirement does not arise in a personal injury case where s.33 Limitation Act 1980 gives a discretion to the Court to extend time).
In the County Court, the District Judge granted the Defendant’s application to join the associates as Defendants, despite the opposition of the Claimant; and the Circuit Judge dismissed the Claimant’s appeal. The Court of Appeal, however, took a different view and allowed the Claimant’s appeal.
The key reasoning of the Court is at paragraphs 32-3 of the judgment:
“32. It is axiomatic that no one may be compelled to bring proceedings to claim damages for injury loss or damage caused by another person’s tort. This has two consequences of fundamental importance. First, a person who is competent to litigate is entitled to decide who they will sue. Second, a person who is competent to litigate is entitled to decide what cause or causes of action they will pursue against those they have chosen to sue. The principle applies even (or particularly) where the choice that the claimant makes may expose them to a greater risk of failure than would be the case if every conceivable basis for a claim is pursued. This is not least because the overriding objective encourages claimants (and other litigants) to streamline proceedings where possible, in order to limit the number and complexity of issues to be tried by the court and thereby to save expense and to generate litigation that is proportionate to the amount of money involved, the importance of the case, the (necessary) complexity of the issues and the financial position of the parties.
33. It follows that a decision to bring a claim for damages on a particular basis should in all normal circumstances be respected, particularly when it serves to limit the number of parties and thereby tends to save expense and to approach the litigation proportionately. In the present case, whatever the outcome of an appeal in Hughes v Rattan, there are obvious and sound reasons why the Claimant might choose to adopt the route she has…”
The Court endorsed a dictum of Coulson J in Milton Keynes Council v Viridor [2016] EWHC 2764 (TCC), [2016] 6 Costs L.R 1041 that, “it would be a 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. A claimant is entitled to bring proceedings against the parties with whom it considers that it has a dispute. A claimant cannot be forced to issue proceedings against any other party.”
That reasoning might be thought to be all the more powerful in circumstances where the new Defendants would have a prima facie limitation defence available to them.
The Court acknowledged that there might be exceptional cases in which different considerations might apply – one example being the context of a Group Litigation Order, given that “the judge’s procedural powers in group actions are untrammelled by the distinctive features of the adversarial system” (AB v John Wyeth & Brothers Ltd (1992) 12 BMLR 50, cited in Davies and ors. v Department of Trade and Industry [2006] EWCA Civ 1360, [2007] 1 WLR 3232) – but it found that there were no such exceptional circumstances in this case.
The appeal was therefore allowed and the claim will proceed against the practice only. A number of other applications in other cases, stayed behind this appeal, are now likely to be decided in the same way. The attention of the parties – and of all those with an interest in dental negligence litigation – will therefore turn back to the Court of Appeal in January for the next hearing in Hughes v Rattan.
Ben Collins QC of Old Square Chambers, instructed by the Dental Law Partnership, appeared for the successful Claimants in Breakingbury v Croad and Hughes v Rattan and for the successful Appellant in Pawley v Whitecross.
