Turner v Lewisham Hospital NHS Trust

A statutory restriction on further appeals applies even where the proposed appeal alleges a breach of a Convention right. Turner v Lewisham Hospital NHS Trust confirms that section 9(1)(a) of the Human Rights Act 1998 identifies the procedural route for challenging a judicial act, but does not itself create an unrestricted right of appeal. The nature and limits of that appeal right are determined by the legislation governing appeals, including section 54(4) of the Access to Justice Act 1999. A refusal of permission to appeal therefore cannot itself be appealed where section 54(4) applies. The common law does not provide a general cause of action for damages for a person’s death; such rights arise through statutory causes of action.

The claimant, acting as executor of his mother’s estate, brought a claim against the defendant NHS trust alleging that his mother’s death resulted from the deliberate withholding of dialysis and relying on Articles 2 and 3 of the Convention. The claim was dismissed summarily under CPR Part 24 by District Judge Reed.

His Honour Judge Mitchell refused permission to appeal. Deputy Master Di Mambro directed that there was no further right of appeal against that refusal. The claimant sought review of that direction, permission to appeal to the Court of Appeal, and a stay of execution of the costs orders. The central issue was whether the Convention and the Human Rights Act 1998 created a free-standing right to appeal notwithstanding section 54(4) of the Access to Justice Act 1999.

1. Applications dismissed. The Court of Appeal had no jurisdiction to entertain an appeal against the refusal of permission to appeal. Section 54(4) of the Access to Justice Act 1999 provides that no appeal may be made against a decision to give or refuse permission.
2. Section 9(1)(a) of the Human Rights Act 1998 does not create a separate or unrestricted right of appeal. It requires a challenge alleging that a court acted contrary to a Convention right to be brought by exercising an available right of appeal, rather than by suing the judge for damages. The existence and limits of that right are determined by the statutes governing appeals.
3. The claimant had a right to apply for permission to appeal against District Judge Reed’s decision. He exercised that right before Judge Mitchell, and the refusal exhausted the further appeal rights permitted by section 54(4). Neither section 7(1)(a) nor section 7(10) of the Human Rights Act 1998 altered that result.
4. The decision in R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants was inapposite because it concerned different subordinate legislation. Colley v Council for Licensed Conveyancers was distinguishable because, under the provisions there considered, permission to appeal to the judge was unnecessary.
5. The court added that the common law does not confer a general right to damages for a death. Relevant statutory routes included the Fatal Accident Acts and the Law Reform (Miscellaneous Provisions) Act 1934. There was no arguable basis for reviewing the deputy master’s decision or granting permission to appeal. No order for costs was made.

• Court of Appeal (Civil Division): applications to review the direction and for permission to appeal refused; the court held that section 54(4) of the Access to Justice Act 1999 barred any further appeal.
• Bromley County Court: District Judge Reed dismissed the claim under CPR Part 24. His Honour Judge Mitchell refused permission to appeal.