Group Litigation Orders and the pitfalls of making applications prematurely

United Kingdom

A recent County Court decision to dismiss an application for a Group Litigation Order (GLO) made on behalf of 26 dental patients provides further guidance as to when the court will permit this form of group litigation and principally, when it is premature to make such an application.

Background

Ms Parikh provided dental hygienist services at a practice in Hertfordshire. After complaints from one of the dental nurses at the practice, Ms Parikh admitted to Dr Shah in November 2018 (a dentist at the practice) that she had not been decontaminating and sterilising the dental equipment (specifically scaler tips) as required between each use. Dr Shah terminated Ms Parikh’s employment with the practice and notified Public Health England and the General Dental Council.

In May 2019, Dr Shah wrote to the 563 patients who had been treated by Ms Parikh, informing them of the admitted breach of duty of care by Ms Parikh and warning of the health risks, including blood borne viruses to which they may have been exposed. Dr Shah advised the patients to undergo blood screening, in particular for HIV 1 and 2, Hepatitis B and Hepatitis C.

In response, Cleversons, a firm of solicitors acting for 26 of Ms Parikh’s former patients, subsequently sent out letters of claim for each Claimant and applied for a GLO.

Ms Parikh was not indemnified in respect of these claims and the Claimants then sought to pursue the practice and Dr Shah for alleged breach of statutory duty towards patients and for alleged vicarious liability for Ms Parikh’s breach of duty.

At the time the application for the GLO was made, the practice and Dr Shar had not responded to the letters of claim and they had only gone as far as to deny liability for Mr Parikh, on the basis that she was an independent contractor.

The Claimants’ Position

The Claimants’ solicitors position was that such an application was justified at the pre-action stage because: (i) otherwise the Claimants would individually have to serve (and pay the costs of preparing) evidence of injury and a condition and prognosis report; and (ii) if all of the claims were issued separately and then consolidated it would be a huge amount of work for the parties and the Court.

The Claimants’ solicitors provided a list of common issues for the GLO, which Judge Clarke found to differ from the issues listed in the evidence submitted before the hearing.

The Defendants’ Position

The Defendants argued (among other points) that: (i) the mere fact there are common issues between the Claimants (and prospective Claimants) did not automatically entitle the Claimants to bring a GLO; (ii) that the Claimants had failed to provide sufficient information on the claims (as required by CPR PD19B) given that no claims have been formally issued; and (iii) the Claimants’ solicitors had failed to demonstrate the costs savings or why it would be proportional to allow a GLO.

Decision

The court branded the application “both inadequate and premature”, dismissing the application for three principal reasons:

  1. There was no evidence that any of the 26 patients seriously intended to proceed to litigation. Significantly, there was no suggestion that any of the potential Claimants had suffered actionable loss (the Claimants’ solicitors were unable to confirm if any of the Claimants had in fact suffered from blood borne viruses) and no claims had yet been issued;
  2. The Claimants’ solicitors had not adequately considered whether an order other than a GLO would be more appropriate, breaching CPR 19.11. There was no evidence to support the assertion that a GLO would be “the most cost-effective and proportionate manner”; and
  3. The Claimants’ argument that a GLO should be made in order to identify further Claimants was deemed not be a valid reason.

Further reading: Waterfield v Dentality Ltd (Dentality @Hoddeston) [2020] 8 WLUK 90