EWJ 60 April 2025 web - Journal - Page 102
Negligence and the Consumer Credit
Act - Will We See More Credit Card
Companies as Defendants?
by Catherine Fox, Associate, Hill Dickinson
claim against the creditor in relation to a transaction
which has been financed by the relevant credit
agreement.
Introduction
In the recent case of Bailey -v- (1) Bijlani (2) MBNA Ltd
[2025] EWHC 175 (KB) the Claimant recovered substantial damages after failed implant surgery carried
out by a private dentist. The Claimant recovered
against the dentist but also against the credit card company as she had paid for the treatment by credit card.
This has implications for private dental, medical and
aesthetic practitioners where there is an issue regarding indemnity cover either in terms of the cover itself
or in respect of the limit of the indemnity.
At Trial the Judge found for the Claimant in respect
of the negligence claim against the First Defendant.
The First Defendant did not serve any expert
evidence to refute the claim.
He then had to determine whether the Second
Defendant was also liable in respect of any breach of
contract in relation to the dental care provided.
This article outlines the criteria for bringing such a
claim against a credit card company and the ramifications for Defendants in terms of reputational issues
and costs.
The Claimant was the debtor and the Second
Defendant was the creditor because the Claimant had
used her credit card to pay for the dental treatment in
full. The Judge found that the Claimant had contracted with the First Defendant’s company. The company was therefore the supplier under the CCA.
The facts
The claim arose from the removal of a longstanding
bridge that the Claimant had in place of LL1 and LR1
and its attempted replacement with an implant. Both
procedures were alleged to have been conducted
negligently.
Practice points
Whilst Bond -v- Livingstone & Co [2001] PNLR 30 sets
out that the possibility of using s.75 of the CCA to recover against the card provider is well established in
circumstances where the supplier of services purchased via a credit card can be shown to have caused
actionable damage, the decision in Bailey is reminds
prudent claimants that a claim under s.75 is a way of
obtaining compensation in circumstances where a
negligent supplier is either not indemnified and has
insufficient funds to satisfy any judgment or where the
indemnity may be insufficient to cover the claim.
As a result of the alleged negligent treatment, the
Claimant suffered:
1. Considerable physical pain;
2. Surgical removal of the implant, bone loss in her
jaw and the loss of the two adjacent teeth (LL2 &
LR2);
3. Considerable past remedial dental consultations
and treatment and a need for future remedial
treatment;
This has the potential to significantly impact private
practitioners because any credit company who has
proceedings brought against it is likely to pursue the
matter to Court rather than settle in order to obtain a
judgment that the practitioner is joint and severally liable so that it can seek to recover losses from the practitioner individually. This will inevitably increase the
costs of proceedings which will also be of concern to
any insurers involved in such cases but will also be of
reputational concern to practitioners who face the
prospect of a formal court judgment against them.
4. Ischaemic colitis as a result of the medication that
the Claimant took to control her dental pain, which
has developed into consequential persistent dietary intolerances.
The claim
The dentist named as the First Defendant operated a
private clinic under a limited company which she was
the sole director of and which employed her. The
Claimant’s allegations against the First Defendant
were in negligence.
Whilst it is worth noting that s.75 can only be used if
the cash price of the services is more than £100 but
not more than £30,000, it can also be relied upon even
if only part of the payment for the services was made
using credit provided that the cash price meets the criteria set out above. This means that most treatments
dental and aesthetic procedures are likely to fall within
s.75 if payment is made by credit card.
The Claimant also issued proceedings against her
credit card company, the Second Defendant, for liability under section 75 of the Consumer Credit Act
(“CCA”).
Section 75 of the CCA provides that where there is a
claim against a supplier in respect of misrepresentation or breach of contract the debtor will have a like
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APRIL 2025
