Petros & Ors v Chaudhari & Anor [2004] EWCA Civ 458

Case No A2/2004/0435[2004] EWCA Civ 458
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE OWEN AND MR JUSTICE PITCHERS)
Venue Royal Courts of JusticeDate Monday, 22 March 2004
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE CHADWICK
Between
ANDRANICK JOSEPH PETROSRespondentQUEN MOKRespondentCHRISTINE PIERCERespondentMARK PETERSRespondentRUPERT RISDONRespondentMARK KENNYRespondent-v-
Between
SADHANA CHAUDHARIAppellantNEELU BERRYAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for The Claimants did not attend and were not represented for The Defendants did not attend and were not represented
J U D G M E N T

LORD JUSTICE CHADWICK:

These

[1]are renewed applications for permission to appeal from orders made on 21 October 2003 by Owen J and on 18 February 2004 by Pitchers J, in proceedings brought by Dr Andranick Petros and five others against Mrs Sadhana Chaudhari and Mrs Neelu Berry. Mrs Chaudhari and Mrs Berry are the applicants. They have not come to court to pursue their applications in court this morning. The applications were listed to be heard at 10.00. It is now 10.05 and no message has been received from the applicants to indicate whether or not they intend to appear. In those circumstances - having read the papers and formed a view as to the outcome of the applications - I am satisfied that the appropriate course is to proceed in their absence.[2]The background to these proceedings is tragic. On 25 May 2000 a daughter, Sunaina, was born to the first defendant, Mrs Sadhana Chaudhari. Sunaina was born suffering from Edwards Syndrome, a fatal congenital condition. The medical evidence is that, if born alive, a baby suffering from that condition normally dies within the first year of life. Sunaina was born in, and remained under the care of, King George's Hospital, Essex, where she died on 26 October 2000, aged just five months. She was briefly an in-patient at Great Ormond Street Hospital for a week in June 2000. She was cared for at home during August and September 2000, but was re-admitted to King George's Hospital on 1 October 2000.[3]On 20 October 2000 at the request of the clinical director of King George's Hospital, five consultants specialising in paediatric intensive care at Great Ormond Street Hospital gave an opinion by letter as to the most appropriate form of care management for Sunaina who, as the letter indicates, the writers thought was in the process of dying as a result of her disease.[4]The underlying issue on which the consultants' opinion had been sought was whether, as the parents desired, Sunaina should be admitted to the intensive care unit at Great Ormond Street Hospital. I should read the last two paragraphs of the letter of 20 October 2000:
"There is absolutely nothing we can offer to improve Sunaina's life expectancy. We will never be able to improve Sunaina's life expectancy or improve her quality of life after a period on our ICU. Sunaina has no possibility of long term survival. Any assessment we make would undoubtedly be in keeping with your findings, that Sunaina is in the terminal phase of her disease. To not believe that their child is dying or not understand the consequences of their request makes us uncertain whether Sunaina's parents can be relied upon to provide best care of their child. We would question the competence of these parents if they cannot see that it is in the child's best interest to receive palliative care. We believe it is in the best interests of the child to be allowed to die peacefully and in a quiet caring environment. We do not think that intubation and ventilation until she dies is in her best interest. Therefore, we are not prepared to admit Sunaina to our Intensive Care Unit. We also feel it may be appropriate to withdraw active treatment and offer palliative care to Sunaina in the hope of improving the quality of the life that is left for her to live."
[5]On 23 October 2000 three of the signatories to that letter examined Sunaina at King George's Hospital and confirmed the opinion which they had expressed in their letter. Sunaina died in hospital two days later.[6]Mrs Chaudhari immediately complained to the police that her daughter had been murdered. The child's body was removed to the public mortuary at Eastham, where a post mortem was carried out by Dr Risdon, a consultant paediatric pathologist. He reported that Sunaina had die of natural causes. That appears as the cause of death on her death certificate following an inquest held on 11 September 2001.[7]These proceedings were commenced on 25 November 2002. The claimants are the five doctors who signed the letter of 20 October 2002 and the pathologist who performed the post mortem and gave the report. The defendants are Mrs Sadhana Chaudhari and her sister, Mrs Neelu Berry. The principal allegations in the proceedings are set out at paragraph 10: "10. Despite the investigations conducted by the Metropolitan Police and the Inquest, the Defendants embarked on a campaign of vilification of the Claimants and each of them and have pursued a course of conduct which amounts to harassment of the Claimants. Particulars i. The Defendants published or caused to be published on various web sites extensive material in which the Murder and Post Mortem Allegations were made and repeated ("the Web Site Material"). ii. The Defendants published or caused to be published leaflets in which the Murder and Post Mortem Allegations were made and repeated ("the Leaflets"). iii. The Defendants distributed the Leaflets to members of the public: (1)on 6 August outside King George's Hospital; (2)on 14 February 2001 outside the Hospital; [meaning in that context Great Ormond Street]. iv. On 25 and 26 June 2002 the First Defendant stood outside the main entrance to the Hospital holding a banner which stated that the National Health Service had murdered Sunaina and the Second Defendant approached people entering and leaving the Hospital and asked them to sign a petition. v. On 12 July 2002 the Defendants came to the Hospital. The first Defendant carried a banner, which stated that the NHS had murdered her child and the Defendants invited people leaving and entering the Hospital to sign a petition and gave them a website address, which web site repeated the Murder and Post Mortem Allegations. vi. On 27 and 28 September 2002 the Defendants demonstrated at the hospital and by loudspeaker named the First Claimant as being one of the NHS doctors responsible for Sunaina's death. vii.On Saturday 19 October 2002 the Defendants:(1) went to the First Claimant's home and demonstrated outside the home and in the street holding a banner which details of the website address on it.(2) the First Defendant, using a loud hailer, shouted that the NHS had killed her baby;(3) knocked on the door of the First Claimant's neighbours and asked questions about the First Claimant and whether he had children and if so what their ages were." 14. In that context the Murder Allegations are allegations that the first, second, third, fourth and sixth claimants conspired with doctors and nursing staff at King George's Hospital to murder Sunaina in order to obtain her organs for research and to conceal their mis-diagnosis of Edwards Syndrome and prevent a court hearing. The Post-Mortem Allegations are allegations that the claimants, who include the fifth claimant, conspired in advance of the post mortem to conceal evidence of murder, removed organs from Sunaina before the post mortem on 30 October, and faked the post mortem to produce a false post mortem report dishonestly, thereby concealing the crime of Sunaina's murder.[8]The claim in the proceedings is for injunctions restraining the two defendants from continuing to molest, threaten or harass the claimants.[9]A defence was served by the defendants - apparently acting in person - dated 3 December 2002. Put shortly, it is said in that defence that the recommendation in the letter of 20 October 2000 contravened Sunaina's right to life under Article 2 of the European Convention of Human Rights; that Mrs Chaudhari was treated by the doctors in a way which contravened her rights under Article 3 of the Convention, and that the alleged inhuman treatment was racially motivated contrary to Article 14 of the Convention. The pleading includes a counterclaim for damages in an amount of £75,000.[10]On 7 January 2003 Mrs Chaudhari applied to strike out the claim and for summary judgment. On 16 April 2003 the claimants applied to strike out the defence and counterclaim and for summary judgment against the defendants. Those applications came before Master Fontaine on 2 July 2003. They were adjourned to 11 July 2003. On 11 July 2003 the matter was further adjourned to 30 July. In the meantime, on 17 July 2003, an appellants' notice was filed in the High Court seeking to appeal from the order of 11 July 2003. On 30 July 2003 the matter came back before the Master. The claimants were represented by counsel, but the first and second defendants did not attend. The order refused rights of audience under section 27 of the Courts and Legal Services Act 1990 and rights to conduct litigation under section 28 of that Act to a Dr Adoco. It also dismissed the application by the first and second defendants to strike out the claim.[11]On the claimant's application of 16 April 2003 to strike out the defence and counterclaim and for summary judgment, the Master ordered that the defence and counterclaim be struck out. She directed that summary judgment be entered against the first and second defendants under CPR 24.2 in respect of the claim and in respect of the counterclaim, and directed that damages for harassment and trespass be assessed by a judge of the High Court. The claim for an injunction was referred to a Judge.[12]The defendants appealed from that order of 30 July 2003. Those appeals came before Owen J on 21 October 2003. The order made on that day is headed "Consent order". By that time the defendants were represented by counsel, who signed the consent order on their behalf. The consent order was made upon the claimants' undertaking not to enforce the order for costs against the defendants made by Master Fontaine on 30 July 2003. The defendants, by their counsel, gave undertakings substantially in the terms of the injunction that had been sought; including undertakings to remove from the internet any websites under their control on which the allegations, statements and representations were being published. On that basis the applications for permanent injunctions and for the assessment of damages were adjourned generally and there was no order for costs. The position, therefore, under that consent order was that the defendants - who, as I have said, were then represented - gave undertakings which were in a form satisfactory to the claimants.[13]The first of the renewed applications now before me is an application for permission to appeal from that order made by consent. That application was filed on 16 January 2004 - that is to say, long out of time. It came before Latham LJ on paper - coupled with applications for an extension of time and a stay of execution. He refused the applications for the reasons expressed in these terms:
"The applications are made far too late without any proper explanation. In any event the application for permission to appeal is hopeless. It purports to appeal against a consent order merely adjourning the proceedings. There is no justification for this court interfering with that consent order. The substantive hearing should clearly take place as soon as possible."
At that date the Lord Justice knew that there had been an application to enforce the undertakings.[14]In my view, the reasons given by Latham LJ are not capable of being the subject of challenge upon a renewed application. There is no explanation why these applications are made some three months after a consent order. If the defendants wish to be released from the undertakings which they gave in that order, the proper course is for them to apply to the High Court; not to seek to appeal the order. The operative part of the order - as distinct from the undertakings - is that the various claims to which I have referred, be adjourned. There can be no basis for an appeal from that part of the order in the circumstances that this was an order made by consent upon undertakings given at a time when the parties were represented by counsel.[15]For those reasons I dismiss the first of the applications - that is the application made under reference 2004/0081.[16]Notwithstanding the undertakings which had been given to Owen J on 21 October 2003, it appears that the defendants did not remove the material from their website; rather, they maintained that material on the website. Accordingly, the claimants sought to enforce those undertakings. In due course the defendants made an application to stay all proceedings for enforcement. That application came before Pitchers J on 18 February 2004. After hearing the defendants in person he directed that Dr Adoco be refused permission to represent them on the hearing of that application; that the trial of the action be fixed to take place on 4 March 2004; and that supplementary skeleton arguments be lodged by 2 March 2004. He reserved the costs of that application to the trial judge. The hearing before Pitchers J was a directions hearing. There is no prospect of a successful appeal from the directions which he gave.[17]Nevertheless, the application in 2004/0435 is an application for permission to appeal from that order. That application came on paper before Carnwath LJ, who indicated his view that the allegations of serious breach of the undertakings given on 21 October 2003 needed to be dealt with as quickly as possible; that Pitchers J was fully entitled to confirm the refusal of hearing rights to Dr Adoco; and that nothing in the papers before him, including the transcript of the hearing before Pitchers J, indicated any grounds on which that order could be questioned. The matters with which Pitchers J was dealing were within his case management powers.[18]I respectfully agree that there is no prospect at all of an appeal from the order made by Pitchers J on 18 February 2004.[19]Each of these applications is wholly devoid of merit and must be dismissed. It is tragic that the death of Mrs Chaudhari's baby girl has led her into this misconceived and misdirected morass of litigation. (Applications refused; no order for costs).

Cited in 3 later judgments