Jade Pawley v Whitecross Dental Care Limited

In an ordinary damages claim based on a properly arguable case, a competent claimant is entitled to choose whom to sue and which causes of action to pursue. Although the court has power under the Civil Procedure Rules 1998 to add a defendant, it is normally wrong in principle to compel the claimant to pursue a claim against a person whom the claimant deliberately chose not to sue.

The principle promotes proportionate and streamlined litigation. It applies even where the claimant’s choice increases the risk of failure and is not confined to cases involving potential liability for the added defendant’s costs. Exceptional circumstances, including some group litigation, may justify another course. A defendant seeking contribution or indemnity should ordinarily use Part 20 rather than compel the claimant to amend the principal claim.

The appellant patient alleged negligent dental treatment by four dentists but sued only the two companies operating the dental practice. She alleged that the companies owed a non-delegable duty and were vicariously liable. The companies denied liability and applied under Part 19 of the Civil Procedure Rules 1998 to have the dentists added as defendants to the patient’s claim.

A district judge granted the application. His Honour Judge Parkes QC dismissed the patient’s first appeal and upheld an order requiring her to plead claims against the dentists, although many treatments were potentially outside the limitation period.

The patient appealed on the grounds that the courts below had failed to respect her choice of defendants and had applied the wrong threshold under rule 19.5(4). The central issue was whether Part 19 should be used to compel a claimant with a properly arguable damages claim to sue additional defendants against her wishes.

1. Appeal allowed. In all ordinary circumstances, it is for a competent claimant to choose whom to sue and which causes of action to advance. No person may be compelled to claim damages for injury, loss or damage caused by another’s tort. The claimant’s deliberate choice must normally be respected even where it increases her risk of losing.

2. Rules 19.2 and 19.4(2) of the Civil Procedure Rules 1998 confer a sufficiently broad power to add a defendant on the application of an existing party. The objection was therefore not jurisdictional. It was nevertheless wrong in principle to exercise that power in an ordinary damages claim so as to require the claimant to pursue a non-fanciful claim against a person whom she had chosen not to sue. Stuart-Smith LJ endorsed the substance of the approach in Milton Keynes Council v Viridor [2016] EWHC 2764 (TCC), while qualifying its statement that the court lacked power.

3. The principle supports the overriding objective because limiting parties and issues can save expense and produce proportionate litigation. It is not confined to cases where the claimant might incur the added defendant’s costs. The reasons against compelled joinder are stronger where the proposed defendant may have a limitation defence. Here, compelling claims against the dentists created serious difficulties concerning discontinuance and an application under section 33 of the Limitation Act 1980.

4. In re Pablo Star Ltd [2017] EWCA Civ 1768 did not justify joinder. A judgment between the patient and the companies would not bind the dentists, their concerns remained potential, and the overriding objective supported the streamlined claim. The exceptional procedural powers relevant to group litigation did not apply.

5. A defendant wishing to obtain an indemnity or contribution should ordinarily bring a contingent additional claim under Part 20. The court can then manage the principal and additional claims together and determine how far findings in either are binding.

6. It was unnecessary to decide whether rule 19.5(4) requires joinder to be “desirable” or “necessary”. Even the lower threshold of desirability was not satisfied. King LJ and Underhill LJ agreed.

1. Court of Appeal (Civil Division): Allowed the patient’s appeal and set aside the compelled joinder of the individual dentists: [2021] EWCA Civ 1827.

2. County Court at Salisbury, His Honour Judge Parkes QC: Dismissed the patient’s appeal, holding that the district judge had been entitled to join the dentists and direct that limitation be determined at trial.

3. County Court, District Judge: Granted the dental companies’ application under Part 19 of the Civil Procedure Rules 1998 and ordered the dentists to be joined as defendants to the patient’s claim.