Expert evidence refused for a Defendant who puts a Claimant to proof
Fox v Moroney and Others [unreported, 5 September 2025]
The claim was brought against a dental practice for negligent dental treatment performed by dentists based at the practice. The allegations were based on breaches of non-delegable duties of care by the practice. The Defendant took an approach to defending the litigation which has become all too common, by bringing in the individual dentists as Part 20 defendants and in effect delegating defence of the claim to them. The defence pleaded no response to the allegations of negligence on the basis that the Defendant had a lack of direct knowledge of the events in question. Despite this pleading, District Judge Woosnam at first instance granted permission for the Defendant to rely on expert evidence to defend the claim against one of the dentists who had been unresponsive to the litigation. The rationale for doing so was as follows:
“9. It comes down to the point does putting to proof do any more than simply acknowledge the claimant putting their own evidence in and does it remove the right of the defendant or a defendant to challenge that evidence? Clearly, it does not. A defendant must be able to challenge that evidence. In a case where it relies on expert evidence, there must, in my view, be scope for the defendant to have their own expert evidence to make a credible challenge to the expert evidence of the claimant.”
The Claimant appealed.
The appeal was heard by His Honour Judge Richard Carter from a District Judge. The Claimant’s position was premised on the fact that there was no reason that the Defendant could not have responded to the allegations of negligence in their Defence. The same would have been based on expert evidence considering the records. There was no need for first hand experience of having provided the treatment. They had in fact responded with the benefit of expert evidence at the pre-action stage. The lack of pleading of a response in the Defence arose out of a frustration with the claim having been advanced against them rather than the individual dentists. CRP 16.5 places a clear onus on a Defendant to respond to allegations of negligence where they are in a position to do so. The Defendant was clearly in breach of this rule in their pleading. The Part 20 claim is an entirely separate claim to the primary claim, even if the two are being heard together. The Defences of the Part 20 Defendants cannot simply be adopted in the main action.
Guidance in the White Book was relied upon:
16.5.2 In respect of each allegation in the particulars of claim there should be an admission, a denial or a requirement for proof (r.16.5(1)). Rule 16.5(1)(b) does not use the language of “non-admission” and the practice of pleading numerous non-admissions can only be justified when a defendant is truly unable to admit or deny an allegation and so requires the claimant to prove it. Rule 16.5(1) raises a positive duty for a defendant to admit or deny pleaded allegations where he or she is able to do so and so to prevent merely “a stonewalling defence full of indiscriminate non-admissions” (per Lord Justice Henderson in SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7 at [48], although the same case went on to confirm there is no general obligation upon a defendant to make reasonable enquiries of third parties at such an early stage of the litigation but instead plead the defence on the basis of the knowledge and information the defendant has readily available to him: [49]).
Denials must be explicit; the defendants must state their reasons for denying the allegation and, if they intend to put forward a different version of events from that given by the claimant, they must state their own version (r.16.5(2)). Similarly, if they dispute the statement of value included in the claim form they must state why they dispute it and, if they are able, give their own statement of the value of the claim (r.16.5(3)).
…
The second way in which a defendant may respond to an allegation in the particulars of claim is to require the claimant to prove it (r.16.5(1)(b)). This form of response (which, in practice, is often indicated by the pleader stating that the allegation in question is “not admitted”) is available for use only in relation to an allegation which the defendant “is unable to admit or deny”. A breach of r.16.5 is committed if this form of response is used merely because the defendant is unwilling to admit an allegation. The defendant has no right to require the claimant to prove an allegation unless its truth or falsity “is neither within his [the defendant’s] actual knowledge (including attributed knowledge in the case of a corporate defendant) nor capable of rapid ascertainment from documents or other sources of information at his ready disposal” (SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7; [2019] 1 W.L.R. 2865, CA, Henderson LJ at [48]).
Further at CPR 35.4 the commentary in the White Book provides: The options available to the court in giving directions as to expert evidence include: (i) directing that no expert evidence is to be adduced at all, or no expert evidence of a particular type or relating to a particular issue; (ii) limiting the number of expert witnesses which each party may call, either generally or in a given speciality; (iii) directing that evidence is to be given by one or more experts chosen by agreement between the parties or, where they cannot agree, chosen by a method stated in r.35.7(2); (iv) to require estimates of the costs of the proposed expert evidence (and limit the recoverable costs under r.35.4(4); and (v) when granting permission to specify the issues which the expert evidence should address: to ensure experts focus upon the issues in dispute on which the court requires assistance.
Caselaw was also relied upon, in particular Man v St George’s University Hospitals NHS Foundation Trust [2024] EWHC 1304 (Civ) where Master Sullivan held at §28:
“Taking matters in turn, it seems to me that the witness statement of Nurse Jabeen does deal with matters that are not properly in issue on the pleadings. The Defendant’s position, that the complaint of extreme pain fell outside the knowledge of the Defendant and the Claimant is required to prove it, is not a proper pleading. Had the Defendant spoken to Nurse Jabeen and asked the question earlier than it appears they did, they would have been able to answer that and would have properly been able to put it in issue.
It is right that in the commentary to the White Book, at 16.5.2, it says, “The language of non-admission should not be used and a practice of pleading numerous non-admissions can only be justified where a defendant is truly unable to admit or deny an allegation and so requires the Claimant to prove it. [Rule 16.5(1)] raises a positive duty for a defendant to admit or deny pleaded allegations which he or she is able to do so and so to prevent merely “a stonewalling defence with indiscriminate non-admissions”. (Per Lord Justice Henerson in API North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7.”.
The commentary continues to say the same case went on to confirm, “There is no general obligation on a defendant to make reasonable enquiries of third parties at such an early stage of the litigation but instead, plead the defence on the basis of knowledge and information the defendant has readily available to him.”
It seems to me that the allegations against the very practitioner who is alleged to be negligent is not, in these circumstances, an obligation to make enquiries of third parties. This is a vicarious liability case, and Nurse Jabeen should have been asked what she recalled. It seems to me it is not appropriate for a NHS Trust, in a clinical negligence case, simply to say, “Oh well, we have not been able to ask”, particularly when I note that Nurse Jabeen, although I have not seen it, made a note relatively early on in investigations. It does not appear that there is any evidence that she had disappeared or there is any reason why the Defendant was unable to speak to her before drafting a defence responding to allegations of negligence against her.
In those circumstances, that there is an onus on the Defendants to plead properly, and if there is a matter that is of central importance, such as the level of pain that a claimant was feeling at a particular time, then that has to be positively pleaded.
There is a purpose to pleadings, and it is to make clear what is in issue and what each party’s case is on matters in issue. It is the scheme of Part 16, and always was, that if the Defendant is putting forward a different version of events, that that should be pleaded; and it has not been. The defence is in breach of part 16.5(1).
In any event “putting the claimant to proof” means just that. The Claimant must lead evidence to prove their allegation but the Defendant is not able to lead evidence on matters put in issue that way. That is consistent with the scheme of Part 16. It the Defendant is unable to plead because does not have knowledge of the issue, they can put to proof. If they have positive evidence they wish to rely on, they must plead a positive case.
HHJ Carter found for the Claimant on appeal. He noted that the difficulty with the Defendant’s position was that they were not limiting themselves to testing the position of the Claimant (or her expert) but seeking to advance a positive case as to whether there was a breach of duty by relying on their own expert evidence. The Practice does not advance any specific position on the breach of duty, and so their expert would presumably simply be providing a further view on the Claimant’s claim.
If the Practice is unable or unwilling to respond due to a lack of direct knowledge of the material events, then, although they can challenge the Claimant’s expert’s expertise, they cannot put to him or her a specific different set of facts. Any expert on the Practice’s behalf would, by their very nature, be providing expert evidence on the same factual matrix as the Claimant’s expert.
CPR 35 is clear that expert evidence is limited to “that which is reasonably required to resolve the proceedings”.
The judge noted that it is hard to see how permission to rely on a second expert to provide an opinion on the same case advanced by the Claimants would be proportionate or necessary to resolve the proceedings. There is no reason why the Practice could not challenge the Claimant’s expert, but they cannot put to that expert an alternative case, and therefore it would not be in accordance with Part 35 for them to be entitled to rely on their own expert.
He concluded that DJ Woosnam’s conclusions were erroneous and took his decision out of the ambit of reasonable decision making. The Defendant’s permission to rely on expert evidence was accordingly revoked.
This appeal represents the third in a trio won by the Dental Law Partnership, who instructed Robert, which have together clarified the position in respect of non-delegable duties of care on the part of both dental practices and other organisations providing clinical care. Hughes v Rattan [2022] EWCA Civ 107 confirmed the existence of a non-delegable duty of care in a healthcare context where a Claimant attends a Defendant practice/company as their patient and is provided with medical treatment by a third party. Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827 confirmed that it was not within the gift of the Defendant practice to substitute the clinicians into the claim as Defendants. It was a matter for the Claimant who they chose to bring the claim against. The decision in Fox has now further confirmed that regardless of whether the practitioners are brought in for contribution or indemnity purposes as Part 20 defendants, the responsibility for defending the claim lies with the practice. A refusal to respond to the claim and an attempt to delegate the defence to the clinicians will simply result in the Defendant being deprived of expert evidence and accordingly the main basis for the defence of the claim.
These three decisions have now clearly set out the law in relation to non-delegable duty in the clinical negligence context. They are important for Claimants, particularly in the context of recent cost rule changes. Where there are multiple practitioners who have provided negligent treatment, Claimants can be faced with difficult decisions about which to include as defendants in the claim. Miss out a key one and the claim could be compromised. Lose against one and their cost recovery could eat into a damages award against another defendant. Clinicians can also be difficult to trace, be uninsured or underinsured. The vehicle of bringing a non-delegable duty claim removes these risks by providing a single defendant against whom there is usually no issue in recovering both damages and costs. Claims are simplified, experts reduced and the parties and associated costs involved are limited. It is a welcome development for claimants and one which should contribute to proportionate litigation costs going forward.
Robert Mills acted for the Claimant in these proceedings.
