R (Humberstone) v Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Leveson,Lord Justice Maurice Kay |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1479 |
| Docket Number | Case No: C1/2010/1039 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2010 |
[2010] EWCA Civ 1479
Lord Justice Maurice Kay
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION Lady Justice Smith
and
Lord Justice Leveson
Case No: C1/2010/1039
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
Mr Justice Hickinbottom
CO92732009
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Nathalie Lieven QC (instructed by Legal Services Commission) for the Appellant and (instructed by Treasury Solicitors) for the Intervener
Stephen Simblet (instructed by Howells LLP) for the Respondent
Hearing date: 2 November 2010
Introduction and Legal Framework
This is an appeal from the order of Hickinbottom J made on 13 April 2010 granting judicial review of and quashing a decision of the Legal Services Commission ("the Commission") refusing to recommend to the Lord Chancellor that he should authorise the Commission to provide public funding to cover the representation of Ms Claire Humberstone at an inquest into the death of her son.
Ms Humberstone (the respondent to this appeal) had applied to the Commission (the appellant) for funding pursuant to powers contained in section 6 of the Access to Justice Act 1999 ("the 1999 Act"). This section empowers the Commission to fund such legal services as it thinks appropriate, subject to certain restrictions. By section 6(6), the Commission may not fund any services listed in Schedule 2 to the 1999 Act. Under that Schedule, the Commission may not provide funding for representation at a coroner's inquest. However, there is a discretionary saving provision at section 6(8) which provides that:
"The Lord Chancellor:
(a) may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and
(b) may authorise the Commission to fund the provision of any of those services in specified circumstances, or if the Commission request him to do so, in an individual case."
Pursuant to subsection (b) above, the Lord Chancellor has authorised the Commission in the following terms:
"The Lord Chancellor authorises the Commission to fund advocacy services on behalf of the immediate family of the deceased at an inquest concerning a death:
(i) in police or prison custody;
(ii) during the course of police arrest, search, pursuit or shooting;
(iii) during the compulsory detention of the deceased under the Mental Health Act 1983.
Such services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts. The Commission should have regard to my guidance on funding individual cases under section 6(8)(b) of the Act when considering cases under this direction."
The guidance to which the authorisation refers is called the 'Funding Code: Guidance'. Paragraph 27 is headed 'Exceptional Funding' and covers representation at inquests whether or not covered by the above authorisation and also representation in proceedings other than inquests. The guidance in respect of all inquests (whether or not within the scope of the authorisation) states that funding will only be granted where there is a significant public interest in the applicant being legally represented or where "funded representation is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2 of the European Convention on Human Rights (ECHR)". Such necessity, it is said, will only arise in exceptional cases.
For an inquest which does not satisfy either the 'wider public interest test' or engage article 2 of ECHR, the Lord Chancellor may (in the exercise of his discretion) authorise the Commission to fund representation on an individual basis. However, the guidance makes it plain that the Lord Chancellor expects that such discretion will only be exercised in 'an extremely unusual case'.
By letter dated 9 February 2009, Ms Humberstone's solicitor applied to the Commission for 'exceptional funding' under section 6(8) of the 1999 Act for representation at the inquest into the death of her son. In due course, that request was refused. Ms Humberstone applied for judicial review. Pending the hearing of that application, the Coroner for South Yorkshire adjourned the inquest. Hickinbottom J granted the application and required the Commission to reconsider its decision to refuse. I will examine his reasons in due course.
The Commission appealed to this Court but decided, without prejudice to the appeal, to reconsider its decision. It changed its mind and recommended to the Lord Chancellor the grant of representation at the inquest as an exercise of discretion on an individual basis. The Lord Chancellor accepted that recommendation and Ms Humberstone received funding for representation at the inquest.
Before the hearing of this appeal, it was contended for the respondent that the appeal was now moot and we should not hear it. At the outset of the hearing, we rejected that submission. It seemed to us that the Commission took a responsible attitude towards Ms Humberstone's position. It was naturally a matter of some concern that the inquest had been delayed by the refusal of the funding application and the judicial review proceedings. The Commission took the view that it should reserve its position by appealing so that any matter of principle could be determined by this court, without causing further delay to the inquest. It would be quite wrong, in our view, to deprive the Commission of its right of appeal (for which it has obtained permission) simply because it took a pragmatic and helpful approach to the conduct of this particular inquest.
The factual background
Ms Humberstone's son Dante Kamara was born in April 1998. He suffered from asthma from the age of 2. By the age of 5, he was under the supervision of a consultant paediatrician Dr Caroline Mackenzie at his local hospital. She prescribed two forms of treatment, a steroid inhaler to be used regularly twice a day and a broncho-dilating inhaler to be used, as required, as acute therapy. The medical records show that some of Dante's appointments were not kept. The doctor expressed concern about Ms Humberstone's failure to ensure that Dante used his steroid inhaler regularly. The records suggest that, at an appointment on 9 February 2007, and by letter afterwards, Ms Humberstone was warned that Dante's poor asthma control could be fatal; it was important that he should take the prescribed medication. This warning appeared to have had the desired effect as, when visited at home by an asthma nurse in March 2007, Dante's lung function had improved.
However, it appears that the relationship between Dr Mackenzie and Ms Humberstone had been damaged and thereafter she and Dante did not attend the hospital. Dante's asthma was supervised by his general practitioner and a nurse at the practice. He continued to receive medication as before. On an occasion in April 2008, he attended the surgery on account of an acute attack and in June 2008 he had an annual review. By now he was aged The note of this occasion records the nurse's concern that Dante was still not using his steroid inhaler regularly and the mother's opinion that the asthma was getting worse. The mother suggested that Dante be referred back to the hospital but the nurse did not think that that was warranted at that time.
On 1 July 2008, Dante had a cough and his mother kept him off school. She knew that a cough could lead to an asthma attack. In the late afternoon, Ms Humberstone took Dante to the surgery and asked that he should be nebulised. This would, she hoped, prevent an attack. The nurse took the view that Dante did not need to be nebulised. She took a peak flow meter reading (which was poor) and prescribed a course of antibiotics.
On the way home, Dante appeared quite well and played in a park for a while. However, on leaving the park, he became breathless and began to wheeze. Ms Humberstone's partner, Mr Jamie Mayer, brought Dante's inhaler which he used. Mr Mayer then carried Dante home. At 6.30pm Dante was still complaining that his chest hurt and at 7.22pm an ambulance was called. A single paramedic arrived first and checked Dante's oxygen level, which was low. Oxygen was given through a mask but Dante collapsed. Ms Humberstone maintains that, at this point, the paramedic dropped a butterfly clip down Dante's throat and had to retrieve it with some sort of instrument. The paramedic then made a telephone call to ambulance control. He asked Mr Mayer to administer cardiopulmonary resuscitation. Eventually, the ambulance arrived and Dante was taken to Sheffield Children's Hospital where he arrived at some time before 8pm. Attempts to resuscitate him were unsuccessful and Dante was declared dead at 8.30pm. This was not only the tragic loss of a young life but it must have been dreadful for his mother and her partner.
Twelve days later, Ms Humberstone was arrested on suspicion of manslaughter by gross negligence. The police acted apparently as the result of suggestions made by medical practitioners that Ms Humberstone had not cared for Dante properly. At the police station, she could not be interviewed for some time. Even when declared fit for interview, it was thought necessary that she should be accompanied by 'an appropriate adult'. In due course, the police decided not to charge Ms...
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