Bailey v Bijlani and MBNA Limited [2025] EWHC 175 (KB)

Dr Louisa Sherlock represented the Second Defendant in the High Court case of Bailey v Bijlani and MBNA Limited [2025] EWHC 175 (KB). Here she reflects on the findings and the relevance of this clinical negligence case.

Upon my return from maternity leave, I reflect upon a case I was instructed on, the case of Bailey v Bijlani and MBNA Limited [2025] EWHC 175 (KB), a High Court case in which I represented the Second Defendant, MBNA Limited. I was instructed by Eversheds.

This case is significant not because it breaks new ground, but because it acts as a reminder that in the right circumstances, a claim for alleged clinical negligence can be brought as a breach of contract claim against a credit card company, and also because it is one of the few reported High Court cases involving dental negligence and a quantification of damages in open judgment form.

This was a 5-day High Court case in the Royal Courts of Justice and it was a joy to walk through the doors of the building and to a courtroom to the left of the Great Hall every day for a week.

The claim was brought in relation to alleged dental negligence. The claim ran to trial largely because the First Defendant, a Harley Street dentist, was acting as a litigant in person and decided to defend the claim all the way to trial.

The claim was also brought against the Second Defendant pursuant to s75 Consumer Credit Act 1974 for any breaches of contract in relation to the dental care provided by the First Defendant, the Claimant having used her MBNA Credit Card on 25 May 2018 to make a payment of £4,916 for the dental treatment.

The Second Defendant admitted that they would be jointly and severally liable to the Claimant if the Claimant could prove their claim for breach of contract against the First Defendant and that all the criteria for a claim under s75(1) of the Act were met. Otherwise the Claimant was put to proof, neither Defendant having sought any expert evidence.

The claim was relatively significant in value because it was alleged that there were extensive losses which flowed from the negligent removal of a long-standing bridge that the Claimant had in place of her lower central incisors and its attempted replacement with an implant. The Claimant alleged that both procedures were conducted negligently and as a result she suffered considerable physical pain, the requirement for surgical removal of the implant, bone loss in her jaw and the loss of two adjacent teeth, namely her lower lateral incisors. Further, it was alleged that the alleged breaches of duty caused considerable past remedial dental consultations and treatment, a need for future remedial treatment, and ischaemic colitis which the Claimant alleged occurred as a result of the medication that she took to control her dental pain. Following on from this, there was a significant claim for loss of earnings because the Claimant alleged that following the negligent treatment, she was initially acutely unwell and not capable of finding or returning to work. She further alleged that even subsequently her gastrointestinal health, oral health, cosmetic appearance of her teeth and her psychological reaction to all of these issues had not been conducive to her ability to credibly interview and compete for positions.

On day one, there were a number of preliminary applications that required determination before the beginning of the trial. Firstly, the First Defendant applied to adjourn the trial in order to allow her to obtain expert evidence. His Honour Judge Simon refused the application to adjourn.

The Claimant then made an application to amend the Claim Form by increasing the value which had been to £80,000 on issue to £120,000. Permission had been granted at the CCMC to increase the value, but the amended Claim Form was not in fact filed in accordance with the order. The amendment was granted.

I was instructed to apply to amend the Second Defendant’s defence to clarify the legal basis upon which they would be able to recover any damages should they be awarded against the First Defendant. I submitted a skeleton argument in support, and the application was granted.

The First Defendant applied to delay the start of trial until the following day to allow a Mackenzie friend, with whom she had consulted in advance of the trial and who had already provided some assistance, to attend. It was determined that it was in the interests of justice to delay the start of the evidence until the following morning.

On day three of the trial, the Mackenzie friend, Henry Hendron, and the First Defendant applied to the Court for Mr Hendron to be permitted to act in the capacity of representative for the First Defendant and address the Court. The Court considered the Guidance on Mackenzie Friends. In particular in this case, the Court took account of the fact that Mr Hendron was at the time suspended from practice as a barrister, and permitting him to address the Court and question witnesses risked seriously undermining the regulatory decision in force at the time. For the reasons given in detail at the time, His Honour Judge Simon refused the application for Mr Hendron to address the Court. He remained as Mackenzie Friend, assisting the First Defendant in her questioning of witnesses and in the presentation of her case.

The Claimant, her husband and daughter and the First Defendant gave life factual evidence. The dental expert and gastroenterology expert also gave evidence. The evidence stood up to scrutiny.

The court found in favour of the Claimant on all allegations of breach of duty made, which in summary were a failure to properly plan the proposed implant treatment, the failure to properly obtain the Claimant’s consent and placement of the implant in such a way that it caused damage to an adjacent tooth.  The court also found in favour of the Claimant on all allegations of causation.

In respect of quantum, most items were recovered as claimed save for a holiday transfer cost which was not properly evidenced and loss of earnings. Loss of earnings had been the most significant element of the claim when it came to quantum being claimed at £61,200. I argued that this was in fact a loss of a chance case and that the figure awarded should be reduced to reflect this. The judge determined that this was a loss of a chance case and awarded £11,500 for loss of earnings.

General damages were awarded in the sum of £11,410 in respect of injury to the Claimant’s dentition, and in the sum of £30,000 in respect of the ischaemic colitis. The total award for general damages was therefore £41,410. Total damages were awarded to the Claimant in the sum of £87,663.30.

The court found that the Second Defendant was jointly and severally liable to the Claimant pursuant to s75 Consumer Credit Act 1974.

I argued that the Second Defendant ought to be entitled to an indemnity and/or contribution from the First Defendant in respect of damages and costs on a 100% basis. The court determined that any such indemnity and/or contribution would be on 100% basis, and that in respect of costs, the court would need to consider the form of the order and any relevant submissions before determining the issue, but stated that in principle the Second Defendant would be likely to recoup costs that it was required to pay on a 100% basis. Though jointly and severally liable, there was no suggestion that the Second Defendant was liable other than through the mechanism of the Consumer Credit Act 1974.

This case gives guidance in respect of a figure for general damages that a court may award for failed dental implant treatment. Further, the case serves as a reminder that a Claimant can bring a claim for breach of contract against a credit card company where they have used the credit card to pay for medical treatment.

It is worth noting that claims of this nature can only be brought where the sum paid using the credit card is between £100 and £30,000 pursuant to s75(2) Consumer Credit Act 1974.