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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Berti, R (on the application of) v Royal Bournemouth & Christchurch Hospital Trust [2001] EWCA Civ 1015 (20 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1015.html Cite as: [2001] EWCA Civ 1015

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Newman)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th June 2001

1. LORD JUSTICE KEENE: This is an application for permission to appeal against a decision of Newman J on 6th April 2001 in the Administrative Court, whereby he refused the applicant, Mr. Domenico Berti, permission to apply for judicial review.
2. The applicant's claim arises out of treatment given to his late father by the Royal Bournemouth and Christchurch Hospital Trust between October 1994 and April 1995. The late Mr. Mario Berti issued proceedings in the county court against the Hospital Trust in October 1997 alleging that the treatment he had been given was negligent. Those civil proceedings have been concluded because the claimant did not comply with a court order about serving fully pleaded particulars of claim and a fully pleaded schedule of special damages.
3. In due course, on 18th January 2001 the applicant sought to bring judicial review proceedings against both the Trust and the Health Service Commissioner, sometimes known as the Ombudsman. There is no doubt that Mr. Berti is dissatisfied with what has happened. He is sincerely wishing to obtain what he regards as a more just outcome. The judicial review claim by the claim form identifies the date of the decision which it is sought to challenge as being "July 1999".
4. Newman J in his judgment held that the matters complained of were not susceptible to judicial review. His reasoning was that these matters had already been dealt with in civil proceedings which were in any event appropriate when medical negligence was being alleged. The judge also doubted whether the present applicant had a sufficient interest for the purposes of judicial review. Today, appearing on his own behalf, Mr Domenico Berti argues that he does have a sufficient interest for judicial review in this matter. He contends that his father's rights were breached because unauthorised experimentation was carried out on him in the hospital; because nursing staff dropped him on three occasions; he was heavily sedated; the ward sister failed in her duties and his GP failed subsequently to act. It is said that there have been breaches of the European Convention on Human Rights, in particular Articles 1, 5 and 8. Arguments are also raised about the failure on the part of the Health Service Commissioner to act in response to Mr. Berti's claims.
5. So far as the claim for judicial review against the Hospital Trust is concerned, I have to say that it is clear to me that judicial review is not appropriate. The allegation against the Trust is essentially one of negligence, even though occasionally it is dressed in somewhat different clothes. That is something that has to be dealt with by normal civil litigation. Mr Berti argues under this heading that judicial review is appropriate because the surgeon "abused his powers". But the surgeon was not acting as a public body in so doing. Nor does an argument based on the European Convention on Human Rights bring the case within the scope of judicial review. Those human rights operate against the whole breadth of English law, whether public or private law. That point does not assist the applicant. Judicial review is essentially concerned with decisions made by or actions on the part of public bodies. I cannot see that the surgeon, in the way that he acted, was acting as a public body any more than the nurses or ward sister.
6. As far as the Health Service Commissioner is concerned, the position is somewhat different. I can see an argument that his decisions are capable of being the subject of judicial review proceedings in appropriate cases. But in the present case there remain formidable obstacles to any successful appeal in respect of the claim against the Health Service Commissioner. The Commissioner wrote on 14th July 1998 to the applicant stating that he was unable to investigate because the care and treatment of the applicant's father occurred before 1st April 1996. Even that letter was repeating a point which had been made earlier by the Commissioner in correspondence. Clearly there was a refusal by the Commissioner to investigate as at that date and the subsequent correspondence does not create a truly fresh decision. It follows that the application for judicial review in this case was lodged some two and a half years after the decision which it is sought to challenge, long after the three month period which is normally allowed for judicial review applications. I can see no good reason in the present case for extending time.
7. The point being made by the Commissioner in the letter to which I have referred was based on section 6(1) of the Health Service Commissioners (Amendment) Act 1996 and the Commencement Order 1996 in respect of that section (see SI 1996 No 970). It seems to me to be a legally sound point which the Commissioner was making about his inability to act. He was saying in essence that he had no power or jurisdiction to investigate. That seems to me to be right. It follows that this part of the claim has no prospect of success on the merits. For that reason alone there is no good ground for extending time, particularly by the lengthy period which would require to be covered by an extension in this case.
8. Like Newman J, one cannot help feeling sympathy for the applicant whose concerns are understandable and who believes that he has, as indeed his father had, a good claim concerning what happened to him. There is no chance of a successful appeal against Newman J's order. There is no point in raising the hopes of the applicant by granting permission to appeal. In the end, those hopes would be dashed at a full hearing before the Court of Appeal. It follows that this application must be dismissed.
Order: Application refused.