Negligence and the Consumer Credit Act

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.

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 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.
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;

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.

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 claim against the creditor in relation to a transaction which has been financed by the relevant credit agreement.

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. 

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.  

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.

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. 

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.

S.75 of the CCA also covers purchases of services made abroad. As it is possible for claimants to sue only the creditor, claimants could seek to use this section to try and avoid jurisdiction issues in cases where aesthetic or dental treatments have been purchased and received abroad. This may increase claims made against practitioners based outside the jurisdiction.

It may be that we will now see more claims where credit card providers are named as Defendants.