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Neutral Citation Number:  EWHC 1718 (Admin)
IN THE HIGH COURT OF JUSTICE
Case No. CO/324/2002
QUEEN'S BENCH DIVISION
Royal Courts Of Justice
Thursday, 30th May 2002
THE HONOURABLE MR JUSTICE BURTON
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IN THE CASE OF A F P BERRY
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Computerised transcript of Smith Bernal Reporting Ltd
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DR A ADOKO appeared on behalf of the Claimant.
MR B McGUIRE (instructed by Waltham Forest Legal Services) appeared on behalf of the Respondent.
J U D G M E N T
(AS APPROVED BY THE COURT)
Thursday, 30th May 2002
1. MR JUSTICE BURTON: This is a renewed application, having originally been refused on paper by Mr Justice Scott Baker by Mrs Berry, who is the aunt of Sunina Chaudhari, an unfortunate young girl who died on the 26th October 2000 in hospital, having suffered from a congenital disease called Edward's Syndrome for all of her short life. An inquest was held into her death on the 11th September 2001.
2. Her parents had been very concerned about the ways they saw the various hospitals were dealing with their daughter, and there was plainly a good deal of ill will, even at that stage, between them and the hospital. The hospital regarded them as inappropriately interfering with the treatment, and she regarded the hospital as inappropriately carrying out treatment. She, the aunt, was obviously at that stage not so involved as were the parents, but unfortunately round about the time of the inquest Mr Chaudhari himself had to go to India and Mrs Chaudhari was not well, and indeed, although summoned to be a witness, she did not attend at the inquest. For whatever reason, it is now the aunt who carries on the burden of bringing these proceedings, although before me today Mrs Chaudhari has appeared at her side.
3. Acting on Mrs Berry's behalf has been a former barrister called Dr Adoko. He has today made submissions before me which I have heard under reserve, as I have described the old Latin phrase, de bene esse, that is without determining any question under section 28(2)(c) of the Courts and Legal Services Act or otherwise as to whether he was someone who had a right to conduct litigation. He has made his submissions firmly and cogently.
4. On the day before the inquest on the 11th September 2001 he, similarly so acting, I think, at that stage on behalf of the parents, brought an application which came before, I think it was Mr Justice Elias, to seek to restrain the inquest in advance on a number of grounds and that application failed. The inquest consequently went ahead. Dr Adoko was not at the inquest.
5. The inquest took, I have been told, three days. Dr Adoko obtained a copy of a transcript of the inquest on or about the 7th November 2001. The three month period for challenge by way of judicial review of the inquest expired on or about the 13th December 2001. This application for permission to apply has been brought before the Court and was lodged on the 22nd January 2002. It is therefore plainly out of time.
6. The Court has a discretion, exercised in accordance with the well established principle, to give an extension of time, always bearing in mind that the three months itself is not an absolute entitlement and that there is a duty to bring judicial review proceedings promptly, even within the three month period. The three months is an absolute outside, save in the kind of circumstances which are the subject matter of the authority. It is up to the claimant to prove or to establish reasons for an extension. One of the reasons why extensions are not granted will always be interference in public administration, in circumstances where certainty and the involvement of the public and dissemination of information to the public generally and to other interested parties are of importance.
7. One of those areas in which it is important not to have belated challenges is obviously an inquest which rakes up, often some time after the death, facts by which many will be upset, and which leads to certainty where there was previously uncertainty, and which often involves investigation and reinvestigation of a body which is best buried, in the physical sense.
8. Mrs Berry therefore begins with a heavy burden to establish that she should be entitled to have an extension of time. Dr Adoko sought to deal with that difficulty by effectively abandoning eight of the nine grounds which were contained in the original application before Mr Justice Scott Baker, all of which plainly could have been launched within the three month period, and indeed many of which have already been brought before the Court in the application before Elias J, and disposed of at that stage, so that there would have been abuse of process or issue estoppel points to be raised in any event. He sought, on renewing the application before me, only to rely on what he described as four grounds, that is four grounds in a document recently served in support of his renewal, on the basis that those four grounds of his case could all be justified as being brought out of time, even though he recognised the difficulties in pursuing those that were contained in the original application.
9. There are, of course, fallacies in relation to that proposition. The first and most obvious is that, insofar as any of those grounds were new and were not referenced in the application that was issued on the 22nd January 2002, and were only raised for the first time in the renewal application received on the 29th April 2002, they would carry their own three month period. The three months in that regard would have started to run on the 29th January 2002, which itself would be nearly three months after he had received the transcript. Thus, the 29th April itself will be nearly six months after he had received the transcript. But nevertheless, I respect and understand the thinking that lies behind Dr Adoko's attempt to seek to meet the inevitable criticism of the delay.
10. There is, however, a further problem that he faces and that is that, of the four grounds (which really on analysis boil down to three, because the third and fourth are simply two different ways of putting the same ground) the third, to which I shall turn in a moment, was not new, and was indeed contained as one of the nine grounds in the original claim, in fact, subparagraph (iii) of this ground. So therefore, insofar as he was implicitly accepting that he would be out of time in respect of the nine grounds, this one also suffered from that same defect.
11. There is a further and final problem which he has, before I come to the specific merits of the application, and that is that implicit in his suggestion that he can run matters which only appeared, as he would put it, from a transcript which he did not obtain until the beginning of November, is that he somehow obtained a fresh three month period running from the 7th November of last year, so that thus his application to the Court in January of this year would be within the three month time limit.
12. I do not, I am afraid, agree with him in that regard, nor is he right. The fact that he did not get the transcript until the 7th November might excuse and thus obtain some small delay or extension in respect of his failure to bring his claim, or Mrs Berry's claim, within the original three months if, for example, he obtained the transcript in the last few days of the three month period. But he obtained the transcript on the 7th November, or shortly afterwards, well within the three month period, and therefore I at the moment for my part can see no reason why he could not have brought all the matters that he now urges, including those which only became apparent to him on his case once they obtained the transcript, within the original three month period, and certainly well before the application was first launched in late January.
13. I therefore, as will be clear, do not conclude that any of the grounds which he now puts forward have any justification for being well out of time, but I shall deal with them nevertheless as a matter of courtesy to him.
14. The third ground which, as I have indicated, is really an amalgam of his third and fourth ground, is really what he calls a breach of judicial undertaking by the coroner. This was well known to the claimants, as Dr Adoko accepts, before the expiry of the three month period, and indeed it formed one of the original nine grounds, among those which he has abandoned, as I have earlier indicated, and did not in any way need the transcript in order to put it forward, but in any event insofar as he did need the transcript, of course Dr Adoko did by 7 November have the transcript. The transcript can only be at best relevant to illustrate what Mrs Berry meant by the alleged breach of judicial undertaking. The judicial undertaking in question, or allegedly in question, was by reference to the fact that the coroner, who had been the target of a campaign one has to call it that by the family alleging that she herself was party to a conspiracy either to murder Sunina, or at any rate to cover up a murder, had announced, in advance of the inquest, as was already indeed known at the time of the application to Elias J, and which formed part of their application to him, that she would, although she had no actual requirement to do so, sit with a jury. She, Mrs Berry, says that that amounted to an undertaking by the coroner not only to sit with a jury but to leave all facts to the jury. Dr Adoko reads the following passage from the transcript as follows:
"Consequently I have chosen to sit with a jury. The consequence refers to thefact that Sunina's family have made numerous allegations against hospital staff and myself about a conspiracy to kill Sunina and conceal the evidence. I have chosen to sit with a jury because, as I will explain to you later, it is the members of a jury who judge the facts. You will be specifically directed to disregard any emphasis you may think I place on the facts in my summing"
15. When it came to the summingup the coroner only left two verdicts to the jury. She left a verdict of natural causes and she left a narrative verdict. She did not leave the verdict of unlawful killing either on the basis of murder of gross negligence, attempted murder or gross negligence, and she did not leave, for obvious reasons, suicide and she did not leave an open verdict. She did so after carrying out the normal function of a coroner, or indeed a judge, in relation to almost a oneday hearing, as this was, summarising the facts in relatively short form. Then she indicated to the jury what verdicts she was leaving to them, as I have briefly summarised. She explained why she was not going to leave the allegation of murder in these terms:
"I have to tell you that there is no evidence that any person intended to cause Sunina any harm and there is no evidence at all that any deliberate acts or omissions led to the death and therefore I cannot even allow you to consider that the baby was murdered. I would like to withdraw that from your possible consideration."
16. She then summarised what was necessary to be considered in relation to the alternative cases for unlawful killing and then manslaughter by gross negligence. She went through the ingredients at some length, and concluded:
"I have considered the verdict of unlawful killing which I know, if the family had been present they would wish me to put to you, but I have to say that there is no evidence upon which a reasonable jury could possibly come to that conclusion."
17. She had invited submissions from counsel to be made to her before launching into her summingup. Two counsel had been present on behalf of the two hospitals that were involved. There had been an invitation to her to consider the fact that, on the submissions of counsel, there was no evidence on which the jury could be invited to consider unlawful killing. Those were the submissions that were made to her and it would appear that she, having considered the matter, agreed with those submissions.
18. This first ground then, being the combination of the third and fourth grounds upon which Dr Adoko relied, is that it was, or arguably was for the purpose of the submission, in breach of what was described as her judicial undertaking not to have left those two verdicts to the jury. I take the reverse view; I take the view that it would have been a breach of her judicial obligations if, having conscientiously concluded that there was no evidence to support those verdicts, she had left them to the jury. I do not conclude that there is a ghost of a suggestion here of the kind of judicial undertaking such as is referred to. What the coroner said, she meant; namely that she had decided to have a jury and thus that whereas she could, pursuant to the Coroners' Act, sit without a jury, in this case she would have a jury who would thus give their verdict, and she would be directing them in the usual way the coroner addresses the jury on law and leaving the facts to them. If, conscientiously, she concluded that there was no evidence upon which a verdict could be found, then she was under a duty not to leave the matter to the jury. That is what she did. It would have been improper for her to agree to operate the coroner's inquest in a way different from the way the law requires, nor did she do so. The question, however, remains which Dr Adoko has brought before me, by reference to his other two grounds as to whether, leaving aside the question of whether or not she in some way took upon herself, which Dr Adoko said she did, the burden of acting in some way differently from an ordinary conscientious coroner, in fact she acted as a reasonably conscientious coroner in the way she did leave the matter to the jury by reference to the evidence.
19. Dr Adoko says that no reasonable coroner would have acted as she did in not putting before the jury facts upon which a verdict of unlawful killing might be arrived at, by reference to two aspects of the case.
20. I emphasise, as Dr Adoko will, of course, know, that nothing that either did or did not occur at the inquest could prevent his clients, if they have a case of negligence against any hospital or doctor, from bringing a claim. The inquest is not supposed to be, nor is it, the preliminary hearing in a negligence claim made by the family of a deceased. It is a public investigation which is limited to causes of death, in this case with a jury looking at the facts. Nothing one way or the other can prevent any investigation of a private kind which the parents would wish to carry out. But that is simply the background to the motivation no doubt as to why Dr Adoko has brought this application.
21. The reality is that I have got to consider, and can only consider, the question in law as to whether there was an arguable case that the coroner erred, when she concluded that there was no evidence to leave that issue to the jury. Dr Adoko referred first to the question of potassium. He points out that potassium was prescribed, and he referred to the prescription sheets, which shows it was ; and he refers to evidence from a Dr Shirsalkar, who indicated he was the consultant in charge, and he had not known that potassium was being added to Sunina's feeds as a supplement. In fact she was, as was clear from the prescription sheets, and from the evidence of a nurse, Nurse Ellingford, or she may have been a sister, who gave evidence that potassium was given in the feed. There was evidence given that if there had been an excess of potassium prescribed, that could have caused a problem. Dr Shirsalkar himself said as much. He said if there was an excess of potassium, then potassium being an important electrolyte, high dose of potassium could cause rhythm disturbances to the heart and the heart would stop if there was too much potassium. It was pointed out that Sunina when she died simply stopped breathing in the middle of a drip line of antibiotics, all of a sudden. Dr Adoko submits that the matter of the potassium should have been in some way left to the jury.
22. The position so far as potassium is concerned is this: that there was evidence given before the coroner by Professor Vanezis, who had carried out his own tests and examination and had also sought to corroborate the tests undertaken by Ian John Humphreys, of the Forensic Science Service Laboratory. He carried out his own researches, and has taken the opportunity to reconsider the tests undertaken by Dr Humphreys of the Forensic Science Service Laboratory. Both Dr Humphreys and Professor Vanezis confirmed that there was no indication in the blood of potassium at all, so that no conclusion could be reached regarding potassium either as to whether the level was excessive or otherwise.
23. In those circumstances, Mr McGuire, who has appeared for the coroner, has submitted that there was no evidence which could be left to the jury that potassium had any part to play in the cause of death. Rather, certainly, it could not have indicated any case of unlawful killing which would have required some conclusion that there had been negligently prescribed an excess of potassium.
24. I agree that in those circumstances it is not possible to argue that a reasonable coroner ought to have left the issue to the jury, and, a fortiori, that it could have been concluded that no reasonable coroner could have done other than leave it to the jury. What the coroner did, having considered the evidence, was refer to the negative nature of the toxicology report, at page 288 of the transcript. She says that the toxicology was negative, apart from a dose of Paracetamol which is a component of Calpol.
25. So in those circumstances I conclude that there was no even arguable failure on ground 1 by the coroner, as alleged or at all.
26. The second ground which Dr Adoko has relied upon, similarly by reference to the evidence, is one very short passage indeed in the evidence, and that is at page 205 of the transcript in the evidence of Dr Shirsalkar. It appears that the coroner put to him that on Wednesday, 4th October, when Sunina was administered Ranitidine, she was administered ten times the prescribed dose for a few days. Dr Shirsalkar was asked whether he knew anything about it and he said he did not, but accepted that 30 milligrams would have been excessive.
27. It was said in the course of that short section that the nurse would be able to help further, although it appears that the nurse gave no relevant evidence in that regard.
28. Once again, Dr Adoko relies upon this on the basis that this is evidence which no reasonable coroner would either have failed to explore further or would in any event not have left to the jury. However, as is clear, that overdose, as overdose it plainly was, had ceased some several days before the death. A few days after the 4th October would take us, one would have thought, at the latest to a date a fortnight before the death, and the toxicology, as I have indicated above, was negative, according to the relevant reports and the relevant evidence.
29. In those circumstances I am unable to say that no reasonable coroner would have failed to leave to the jury the question as to whether there was any effect from an overdose of Ranitidine some fortnight before death or, a fortiori, as to whether that would found a case of unlawful killing which thus ought to have been left to the jury. In those circumstances I do not conclude that, on the merits of the three arguments that Dr Adoko has sought to put forward, there is an arguable case. I return to the question of delay, and I also conclude that, even apart from the question of merit, there is no justification whatsoever for the lateness of this case being made. The first ground which I have considered, the question of the alleged judicial undertaking, plainly could and should have been brought within the three months. The other two matters, even if they only became apparent in the transcript, could still have been brought within three months, and the delay until January or certainly, a fortiori, until the 29th April is unexplained, and for the reason of lack of merit I dismiss the application.
MR McGUIRE: I am instructed to mention the costs. It is fully appreciated that in this kind of case respondents would normally seek costs and usually that is the case, but almost £2,000 has been spent dealing with matters in effect for the third time and were there any further applications, the authority may not continue to take the same view. That it all I seek to say.
MR JUSTICE BURTON: But you are not proposing to ask for costs? That is very compassionate of you. The fact is that you have won and you could have asked for costs, but you do not.
MR McGUIRE: That is right.
MR JUSTICE BURTON: Thank you very much.