England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(DISTRICT JUDGE REED)

		Royal Courts of Justice Strand London WC2 Thursday, 29th November 2001

Thursday, 29th November 2001

1. LORD JUSTICE CLARKE: This is an application by Mr Turner whose claim for damages was dismissed under CPR Part 24 by District Judge Reed in the Bromley County Court. His application for permission to appeal against that decision was rejected by His Honour Judge Mitchell also in the Bromley County Court. When Mr Turner sought to appeal against that decision Deputy Master Di Mambro directed on 5th October 2001 that there is no further right of appeal against a decision to refuse permission to appeal. This is a request that that decision be reviewed under CPR 52.16(5); and perhaps it is also an application for permission to appeal against the decision of His Honour Judge Mitchell. Mr Turner also seeks a stay of execution of the costs orders made in the courts below.
2. The underlying facts may be shortly stated. Mr Turner's mother died on 26th February 1997 while at a hospital run by the respondent, the Lewisham Hospital NHS Trust. She was 88 years of age. The cause of her death was certified to have been renal failure caused by hypertension. Mr Turner is plainly absolutely convinced that Lewisham deliberately withheld from his mother dialysis treatment which would have prevented the renal failure and then miscertified the cause of death. He has in the past attributed that to a policy of not wasting resources on elderly patients. He also says, in short, that his mother was murdered, and he relies upon Articles 2 and 3 of the European Convention on Human Rights which provides so far as material:

"1. Article 2 Right to Life.

Everyone's right to life shall be protected by law. No one should be deprived of his life intentionally save in the execution of a sentence...

Article 3. Prohibition of Torture.

No one should be subjected to torture or inhuman or degrading treatment or punishment."

3. He also relies upon a similar provision in the Bill of Rights 1689.
4. It is plain that Mr Turner is very distressed by the death of his mother and the reasons for it.
5. In February 2000 Mr Turner began proceedings against Lewisham. He expressly did not claim for personal injury to his mother, nor under the Fatal Accidents Act for loss of dependancy. Instead his claim, which was brought as executor of his mother's estate, was for damages for loss of life under the common-law and his or her rights under the European Convention on Human Rights.
6. Lewisham applied successfully for summary judgment dismissing the claim under Part 24. Judge Mitchell's reasons for refusing Mr Turner's application for permission to appeal against the dismissal of his claim were set out in a careful and lengthy judgment which runs to some 25 pages. They include the following. Mr Turner had argued that there was a cause of action at common-law in respect of a person's death. The judge concluded that that argument had no real prospect of success, that such causes of action were purely the creation of Statute and that that position was not affected by the United Kingdom's ratification of the European Convention on Human Rights which, until the coming into effect of the Human Rights Act 1998, had no effect in English law.
7. Mr Turner recognised that the Human Rights Act was not retrospective and therefore that he could not proceed under Schedule 1, which includes Article 2 of the Convention. However, he relied upon The Queen v Home Office ex parte Wright [2001] EWHC Admin 520 to argue that the Act nevertheless requires an inquiry into Mrs Turner's death. The judge rejected that, saying that Article 2 did not give rise to a cause of action.
8. For present purposes the crucial point is that his Honour Judge Mitchell deliberately and expressly refused permission to appeal, rather than giving permission and then dismissing the appeal (see paragraphs 23 and 24 of his judgment). The judge expressly recognised in those paragraphs that the effect of that would be that the applicant could not seek permission to appeal to this court. Nevertheless, the applicant has sought permission to appeal to this court. As I have indicated Deputy Master Di Mambro considered the matter and on 5th October 2001 gave a direction that there is no further right of appeal by reason of section 54(4) of the Access to Justice Act 1999, which provides:

"No appeal may be made against a decision of a court under this section to give or refuse permission..."

9. She also sent Mr Turner a copy of PD52 paragraph 4.8, which provides:

"There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court."

10. In that context the appeal court was Judge Mitchell, who was considering an application for permission to appeal against the earlier decision of District Judge Reed.
11. Mr Turner argues that where a court has failed to give effect to the provisions of the European Convention on Human Rights there is a free-standing right of appeal which is not circumscribed by the CPR. He derives that submission from section 7(10) and 9(1)(a) of the Human Rights Act 1998. Section 7(10) provides:

"In making rules regard must be had to section 9."

12. Section 9 provides so far as material:

"Proceedings under section 7(1)(a) in respect of a judicial act may be brought only

(a) by exercising a right of appeal..."

13. Section 7(1)(a) provides:

"A person who claims that a public authority has acted or proposes to in act a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal."

14. Thus the effect of those provisions of the Human Rights Act is that any challenge to a decision of a court said to be in breach of the Convention right can only be brought by way of appeal.
15. Mr Turner says that section 54(4) of the Access to Justice Act does not conflict with those provisions which give him a free-standing right of appeal. He further says that, in so far as either the CPR or a Practice Direction do not have that effect, they are ultra vires, and relies upon the decision of this court in R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385. That case was however not concerned with the CPR but with a different set of subordinate legislation.
16. Mr Turner submits, in reliance on Regina v The Home Office ex parte Wright, a decision of Jackson J given on 20th June 2001, that the State is obliged to conduct an official investigation where there have been arguable breaches of Articles 2 and 3 of the Convention. He submits that such an investigation may take the form of a civil action for damages and that failure to procure such an investigation is itself a breach of the Human Rights Act. He submits that the decisions below amounted to such a failure and therefore that he has a free-standing right of appeal against them. In fact the decision of Jackson J was given in the context of a judicial review application in the case of a man who had died in prison. In the course of his judgment Jackson J derived five propositions from the Strasbourg jurisprudence which he set out in paragraph 43 of his judgment as follows:

"1. Articles 2 and 3 enshrine fundamental human rights. When it is arguable that there has been a breach of either article, the state has an obligation to procure an effective official investigation.

2. The obligation to procure an effective official investigation arises by necessary implication in Articles 2 and 3. Such investigation is required, in order to maximise further compliance with those articles.

3. There is no universal set of rules for the form which an effective official investigation must take. The form which the investigation takes will depend on the facts of the case and the procedures available in the particular state.

4. Where the victim has died and it is arguable that there has been a breach of Article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paras 106 to 109.

5. The holding of an inquest may or may not satisfy the implied obligation to investigate arising under Article 2. This depends upon the facts of the case and the course of events at the inquest."

17. Mr Turner also relies upon a statement by Sedley LJ in his concurring opinion in Keenan v United Kingdom [2001] ECHR 27229/95 at 46, paragraph 8, that an effective inquiry can take the form of an action for damages.
18. In my judgment section 54(4) of the Access to Justice Act clearly prevents Mr Turner from bringing an appeal against the decision of the judge in this case. That conclusion is not affected by section 9(1)(a) of the Human Rights Act or indeed section 7(1)(a) or 7(10). Section 9(1)(a) simply says that if a person wishes to claim that a court has acted contrary to the Convention he may only do so by exercising a right of appeal as opposed, for example, to suing the judge for damages. The nature of the right of appeal is however to be found not in the Human Rights Act itself but in the Statutes which establish rights of appeal. Those statutes include the Access to Justice Act 1999.
19. Mr Turner had a right to apply for permission to appeal against the decision of District Judge Reed. He exercised that right. That application was considered by the judge and failed. His further rights are restricted by section 54(4) of the Access to Justice Act 1999. In my judgment there is nothing in section 54(4) which is contrary to the European Convention on Human Rights, or indeed to the provisions of the Human Rights Act 1998. He has exercised one appeal right, albeit that right was to seek permission to appeal. The simple fact is that this court has no jurisdiction to entertain an appeal against the refusal of permission to appeal by the judge. It follows that an application for permission to appeal against the refusal of permission to appeal by the judge must fail for want of jurisdiction.
20. I only add this. I have been referred to a number of other cases. This case is quite different, for example, from the recent decision of this court in Colley v Council for Licenced Conveyancers, the Times, August 6th 2001. There it was simply held that, having regard to the particular provisions the court was considering, permission to appeal to the judge was not required. That is not the position here.
21. I would also like to add this. There are many avenues open to a person in the United Kingdom who asserts that a person (in this case the applicant's mother) has lost his or her life as a result of some unlawful act. In this case it is suggested that she may have been murdered. They include, of course, an inquest and investigations by the police. In addition there are statutes which give rights to the dependants of the deceased. They are principally the Fatal Accident Acts. Yet no claim has been made in this case under those Acts. Equally the Law Reform (Miscellaneous) Provisions Act 1934 (or its successors) give the personal representatives of a deceased certain rights. The common-law does not, however, give a right to damages as a result of a death.
22. While I have a good deal of sympathy for Mr Turner, I have reached the conclusion that there is no arguable basis either for a review of Deputy Master Di Mambro's decision, or for an appeal to this court, which would have to fail for want of jurisdiction.
23. These applications must be refused.
(Applications dismissed; no order for costs).