Pantelli strikes again – pleadings disclose no reasonable grounds for Dental Negligence claim

Clyde and Co acting on behalf of Dental Protection achieve strike out of dental negligence claim as Claimant’s evidence shows no reasonable grounds for bringing the claim. A reminder to obtain expert evidence from the correct discipline and ensure it supports the allegations made before pleading a Claim.

Background

The Claimant had replacement dentures fitted under the care of the Third Defendant General Dental Practitioner (‘GDP’) in 2017.

The Claimant had presented at an initial appointment complaining of facial pain and a plan was made to extract carious retained roots at LR1-2 and replace the existing dentures. The Third Defendant subsequently performed extraction of the retained roots at LR1-2 and fitted new dentures. The Claimant attended the First Defendant, GDP (separately represented) three months later with jaw pain and subsequently attended the Second Defendant, GDP with facial pain and a broken lower denture. The dentures were repaired and a secondary care referral was made by the Second Defendant. The Claimant was reviewed in secondary care in 2018. The Claimant’s dentures were noted to be underextended, unstable and unretentive. The Claimant was diagnosed with trigeminal neuralgia.

The Claimant issued a claim against the Defendants in October 2022. The claim against the First Defendant was brought on the basis of an alleged failure to adequately assess the Claimant’s symptoms and failure to make a sufficient referral for investigation. The Claimant advanced similar allegations against the Second Defendant. It was also alleged that the Second Defendant failed to fix the broken dentures. The claim against the Third Defendant was brought on the basis of an alleged failure to investigate symptoms and make a referral. Allegations were advanced in relation to the manufacturing, moulding and measurements and fitting of the dentures.

The Claimant advanced a claim for damages totalling £176,706 excluding PSLA.

The Claimant relied upon breach of duty evidence from an expert in prosthodontics, whose opinion did not align with the pleaded allegations. It was highlighted to the Claimant that it was not appropriate to rely upon evidence from a prosthodontist in view of all Defendants being GDPs. At the first Costs and Case Management Conference, the Claimant sought permission to obtain breach of duty evidence from a GDP expert. The Claimant had not obtained this evidence and the Application was refused by the Court.

The Claimant subsequently obtained a breach of duty report from an expert GDP and made an Application to the Court for permission to rely upon this evidence. Concerns were raised by the Defendants about the potential impact on the Case Management Timetable and that the Claimant would likely need amend the Particulars of Claim. The Claimant insisted that the Particulars of Claim would not require amendment. At the hearing of the Claimant’s Application, the Claimant was granted permission to rely upon breach of duty evidence from a GDP with the Claimant paying the Defendants’ costs.

Factual witness evidence was exchanged, which revealed numerous inconsistencies in the Claimant’s case. The Second and Third Defendants served a Notice to Admit Facts upon the Claimant, which was ignored.

Following exchange of expert evidence, the Second and Third Defendants sent Part 35 questions to the Claimant’s liability experts. The Second and Third Defendants also invited the Claimant to discontinue the claim.

The responses to the Part 35 Questions confirmed that the Claimant’s breach of duty expert did not support the allegations pleaded in the Particulars of Claim. The Claimant’s breach of duty expert relied upon the secondary care records as evidence that there was a failure by the Third Defendant in the technical execution of the Dentures, despite conceding that the denture preparation and treatment provided at each appointment was reasonable.

The Defendants invited the Claimant to discontinue the claim, but he opted not to do so. Therefore, the Defendants issued a joint Application to strike out, or in the alternative summary judgment. A hearing was listed.

Three days before the hearing of the Defendants’ Application, the Claimant discontinued the claims against the First and Second Defendants. The Claimant continued with the claim against the Third Defendant.

The Hearing

At the hearing, the Third Defendant submitted that in Pantelli Associates Ltd v Corporate Developments Number Two Ltd [2010] EWCH 318 (TCC) the Court made clear that where an allegation of negligence is to be pleaded, that allegation must be supported by a relevant professional with the necessary expertise. The Claimant’s pleaded allegations of negligence were not supported by expert evidence such that Claimant could not pass the Bolam test.

One of the key issues that caused difficulties at the hearing was the reference to ‘technical execution’ and the question of whether fitting the dentures, falls within its definition. The District Judge concluded that the technical execution of the dentures includes what the Third Defendant did at the fitting appointment. The Claimant’s breach of duty expert had confirmed in Responses to Part 35 Questions that the care provided by the Third Defendant at the fitting appointment was reasonable.

The Claimant had reasonable time to examine their expert evidence and the Claimant’s expert could have easily provided the necessary clarifications.

The Claimant’s claim was struck out in accordance with CPR 3.4 as demonstrating no reasonable grounds for bringing the claim against the Third Defendant. The Claimant was ordered to pay the Third Defendants’ costs in the action with the Court considering that the costs fall within the exceptions to QOCS pursuant to CPR 44.15.

Comment

This case is a helpful reminder that when drafting pleadings (or responding to them), it is important for them to be concise, accurately drafted, supported by evidence from experts in the appropriate discipline and have a legal basis for a claim. Pleaded allegations must be Pantelli compliant otherwise you may be on the receiving end of a strike out application, which of course has costs consequences. 

This case demonstrates importance of a thorough examination of expert evidence, ensuring that any clarification points are raised with and dealt with by the expert. The case also shows how carefully drafted Part 35 questions seeking clarification of expert evidence can be useful as these formed the basis of the strike out Application.

This was a pleasing outcome of our client (Dental Protection) and their members.

The case handler at Dental Protection states:

"We are committed to protecting and supporting the professional interests of our members, and we are pleased with this positive outcome. This case serves as a reminder of how important proper analysis of expert evidence is in clinical negligence claims."