Vicarious liability (VL) and non-delegable duty (NDD) are hot topics in a dental context. In the recent High Court case of Hughes v Rattan the Court found that a dental practice owner owed a non-delegable duty to the Claimant in respect of treatment provided by the dentists it engaged and that the practice was vicariously liable in respect of the treating dentists acts and omissions. While this decision is being appealed by the Defendant, the issue continues to be relevant.
It is unattractive for an individual practice owner or corporate entity to assume a liability for the dentists it engages if the dentists are indemnified personally in respect of that liability. Can the treating dentists therefore be joined to the proceedings by the Defendant?
There are two ways of doing so; the first is an Application to join the treating dentists as Defendants under Part 19. The second is to bring an additional claim for a contribution against the treating dentists under Part 20. In the recent Judgment in Pawley v Whitecross Dental Care Limited (1) and (Petrie Tucker ad Partners Limited (2) the Court of Appeal overturned the lower Courts’ decisions to permit an Application under Part 19 where the Claimant objected to the joinder, effectively closing that avenue to Defendants.
Part 19 permits a party to be joined under CPR 19.2(2) where limitation is not in issue and it is “desirable” to add the new party to resolve all matters or a particular issue in dispute in the proceedings. Where limitation has expired, CPR 19.5(2) provides that the party can only be added if it is “necessary” (defined in 19.5(3)(b) as a situation where the claim cannot properly be carried on by or against the original party unless the new party is added). However, there is an additional provision relevant to personal injury claims only at CPR 19.5(4) that allows the addition of a party after limitation has passed where section 11 of the Limitation Act 1980 is disapplied in respect of the new party (i.e. because a section 33 discretion has been exercised) or the issue is of limitation is to be determined at Trial. What CPR 19.5(4) does not say is whether the threshold in such cases is that it is “desirable” or that it is “necessary” to add the party.
In Pawley the practices applied to join the treating dentists under Part 19. A District Judge granted the Application, despite the Claimant’s objection to the addition of the Defendants. She considered that the Claimant’s choice of Defendants had made case management difficult and ruled that it was "necessary" to add the dentists so she did not have to consider the issue of the Claimant’s consent. A County Court Judge upheld the District Judge's decision. He found that the District Judge had been entitled by virtue of 19.5(4) to take account of all the circumstances, including the overriding objective, and that she had not reached an erroneous decision.
The Appeal to the Court of Appeal was allowed on 2 grounds:
- The Court failed to give any adequate weight to the assertion that a Claimant could not be forced to bring proceedings against Defendants and become liable for their costs;
- The Judge wrongly conflated the issues of “necessity” and “necessary” in that he imputed a wider power under CPR 19.5(4) which relied upon “all the circumstances, including the overriding objective”.
In the Judgment, Lord Justice Stuart-Smith found the Claimant was entitled to succeed on Ground 1. He concluded that it was wrong in principle for the Court to exercise the power to join a party against the Claimant’s wishes, and that principle is not limited to cases where the Claimant would potentially become liable for the costs of the new Defendant. The Claimant was entitled to choose who she sued, notwithstanding the fact that, in this case, she exposed herself to a greater risk of failure overall than if she had chosen to expand the scope of her claim by also suing the treating dentists.
In relation to Ground 2, the Court noted that, while 19.5(4) was relevant, there is no clarification as to whether the threshold is that it is “desirable” or that it is “necessary” to add the party. Lord Justice Stuart-Smith said there was logic in the suggestion that in a case where s.11 is disapplied by the Court there is no further limitation issue and therefore the test should be that adding the party is “desirable”, but that in a case where limitation is left to Trial the test should be that it is “necessary” to join the party. However, he also considered that it could be said that leaving limitation over to Trial means that the limitation defence is not established and that therefore to require necessity is too high a threshold.
Ultimately, it was held that given the Court found in the Claimant’s favour on Ground 1, a threshold test of desirability (which would bring into play all the circumstances and the Application of the overriding objective) would not be satisfied in the present case.
The effect of Pawley is that Applications to add Defendants under Part 19 are unlikely to be successful unless the Claimant consents, notwithstanding the fact that the powers in Part 19 are wide enough to add a Defendant where the Claimant opposes the joinder.
However, the Court noted that it is routine for Part 20 proceedings to be brought where the Defendant denies liability to the Claimant but asserts that if the Defendant is held liable to the Claimant, it claims an indemnity or such contribution as may seem just to the Court, whether pursuant to the Civil Liability (Contribution) Act 1978 or on a contractual basis.
As such, Part 20 remains a viable route for adding the treating dentists to the proceedings. Further, Lord Justice Stuart-Smith made the point that if Part 20 proceedings are issued, the Court can make appropriate case management orders about the extent to which findings in the main action are binding in the Part 20 proceedings and vice versa. This suggests there may be scope for interaction between the Claimant and Part 20 Defendants in the litigation.
