Court of Appeal decision in Pawley case – part 19 or 20?

Readers of this blog, particularly those with an interest in dentistry will be aware of the developments that have been taking place over the last few years in relation to the issue of whether dental practices/owners are vicariously liable for the actions of associate dentists engaged by them and/or owe a non-delegable duty of care to patients treated at their practice.

The judgments in a series of recent cases (Ramdhean v Agedo and the Forum Dental Practice; Breakingbury v Croad; and Hughes v Rattan*) have all held that they do.

The practical difficulties for those working in the field of dentistry thrown up by these decisions arise in part due to the fact that dentists are required by The Dentists Act to have an indemnity arrangement in place which provides appropriate cover for acting in that capacity. The dentists are generally engaged on a contract for services i.e. are self employed and practice owners have relied upon that status and the statutory (and regulatory) requirement for a dentist to arrange indemnity. The practice owners have not previously arranged separate practice cover for injuries sustained by patients in the course of treatment.

Where claimants raise the issue of vicarious liability and assert that the dentists are in fact engaged in a relationship akin to employment, and/or the practice owes a non delegable duty of care to the patient, practice owners may therefore find themselves caught in a situation where they have no cover for negligence claims presented to the practice. They can of course seek a contribution from the treating dentists if liability is proved against the practice, by way of a contractual entitlement (if there is one) or pursuant to the Civil Liability (Contribution) Act, however problems arise in investigating and responding to allegations of negligence when the treatment was undertaken by a professional self employed contractor. Their factual evidence can of course be vital in mounting a defence to a claim, particularly where allegations are made in relation to discussions which may have taken place around oral hygiene, dietary advice and risks and benefits of treatment options.

Clearly, if the treating dentists can be located and are willing to cooperate they can simply act as witnesses. Often however, they have moved – frequently abroad and they, or their indemnifiers, are unwilling to cooperate as a claim as not been presented to them, or the professional has not sought or has been refused assistance from their indemnifier.

Where the treating dentists are available, a practice may seek a contribution or indemnity and add them to the proceedings by way of Part 20, which is certainly the more usual route by which a defendant would seek to recover. That has costs implications for the practice in that if the claim for contribution fails the practice owner usually will be ordered to meet the costs of the treating dentist Part 20 defendant.

The decision of the Court of Appeal – Pawley

In the Pawley case, the practice took a different route and sought to add the treating dentists as additional defendants to the proceedings by way of Part 19 which would have placed the potential costs burden of a failed claim in respect of the treatment of the dentists on the claimant.

Part 19 of the CPR contains a provision by which a party may be added to the proceedings even where the claimant objects to their addition to the proceedings.

In the County Court the defendant was granted permission to add the dentists to the proceedings contrary to the claimant’s wishes. The claimant appealed that decision.

The Court of Appeal commented that generally speaking a claimant ought not to be forced to bring a claim (and face the obvious potential costs consequences) against a party he does not wish to sue. It seems that, when considering whether it is desirable to add a new party pursuant to CPR 19.2(2)the two major factors (referred to as lodestars in the case of In Re Pablo Star) are the policy objective of enabling a party to be heard if their rights may be affected by a decision, and the overriding objective.

The Court of  Appeal did not consider the circumstances in Pawley were any way exceptional and that therefore the use of Part 19 in these circumstances was inappropriate.

In short, the court agreed that a claimant can sue whoever he or she wishes and if the practice wish to join the dentists to the proceedings the correct way to do it would be by Part 20.

The judgment can be accessed here.

What next?

Whilst Pawley would seem to put to bed the issue of how treating dentists might be joined to proceedings, the larger question of whether practices owe a non-delegable duty of care or are vicariously liable for the self-employed dentists they engage is to be reviewed by the Court of Appeal in January 2022 when the appeal in Hughes v Rattan is heard.

One of the questions which remains unanswered however, is why the courts have felt it appropriate to apply the special jurisdiction of vicarious liability and non-delegable duty in these circumstances at all.

The chain of recent decisions has certainly taken the dental profession by surprise and has delivered some very unwelcome shocks to some uninsured and unindemnified practice owners who have faced claims from patients whom they have never personally met or treated.

What happens in the Court of Appeal in Hughes v Rattan and how the profession responds to the challenges posed by these decisions remains to be seen. It must surely however be in everyone’s interest to ensure that there are vehicles in place to ensure that deserving injured claimants receive the compensation they deserve, and that no dental professional or practice owner faces the prospect of meeting an uninsured loss. On a practical level clarity between associate dentists and practice owners regarding the indemnity arrangements and the obligations on both parties both at the point of contracting and in the event of a claim  would seem to be the way forward.

*Subject to appeal. Appeal listed in the Court of Appeal 13 January 2022

Written by Sarah Woodwark, Partner at BLM (sarah.woodwark@blmlaw,.com)

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