Mohammed Ali v Northamptonshire Healthcare NHS Trust (No 2) - Permission to Appeal Denied

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2. Mohammed Ali v Northamptonshire Healthcare NHS Trust (No 2)

Mohammed Ali v Northamptonshire Healthcare NHS Trust (No 2)

[2026] EWCC 21

Mohammed Ali v Northamptonshire Healthcare NHS Trust (No 2)

[2026] EWCC 21

1. I handed the substantive judgment in this matter down on 31 st March 2026. By an application dated 17 th April 2026 with perfected grounds of appeal settled by Mr Luke Berry, in-house counsel who did not appear at the trial, the defendant seeks to appeal against that judgment.

1. On 25 th March 2026 prior to the hand-down on 31 st March, I sent an email to my clerk at the County Court, which I copied to Ms Bushby, who was then appearing for the defendant. Attached to the email was a copy of the draft judgment. The email directed the Court to:

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“Write to Mr Ali by first class post with a printed-off copy of the draft judgment, as follows:

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‘Dear Mr Ali,

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I attach a draft of the judgment which the judge is proposing to hand down on Tuesday 31 st March 2026 at 12 noon. The judge has included somewhat longer passages of case-law in his judgment than would be normal, but this is in order to assist you, since you may not have easy access to the cases to which he refers.

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If you wish to appeal against the judgment you should ensure that your application is received by the Court by 31 st March 2026. Otherwise you will need to apply to the High Court for permission to appeal.

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The judge has invited Ms Bushby to submit any corrections to the draft judgment by 12noon on Monday 30 th March 2026. If there are any corrections you seek, you should endeavour to send them back by then.

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If Ms Bushby wishes to appeal the judgment, the judge asks her to apply by 12noon on Monday 30 th March 2026 with her grounds of appeal, so the judge can add an addendum to his judgment dealing with her application.’

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This email will be sufficient notice to Ms Bushby.”

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1. Ms Bushby did respond to that email by sending corrections to the judgment, but she did not make any application for permission to appeal. Nor did she apply for the notional hearing at which the judgment was handed down to be adjourned.

1. CPR 52.3(2)(a) requires that any application to the lower court for permission to appeal be made “to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing”. This was not done. Accordingly, in my judgment, I have no power to grant permission to appeal.

1. In case I am wrong about that, and in order to assist any High Court judge considering a renewed application by the defendant for permission to appeal, I should indicate what Order I would have made, had an application been made timeously.

1. The grounds of appeal assert that my substantive judgment “is wrong in law on the grounds identified below and that the appeal has a real prospect of success.” Ground 3, however, says:

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“The learned Recorder’s finding at paragraph 53 that the Claimant had not been offered the chance to participate in pathway therapy was not supported by the evidence. The Recorder found at paragraph 53 that the Claimant ‘ has not been offered the chance to participate in that therapy,’ based principally on the Claimant’s oral evidence and the nursing record of 3 June 2024 recording a discussion that the Claimant ‘ should be recommended ’ for pathway therapy, with no evidence the recommendation was acted upon.”

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1. This is a proposed ground of appeal based on an alleged error of fact made by me. Such appeals are notoriously difficult to bring. The ground of appeal itself shows that there was evidence on which I could reach that conclusion. This ground of appeal has no reasonable prospect of success and there are no other grounds for granting permission to appeal. I note that any appeal on this ground would be disproportionate in a case about damages of £2,000, because the defendant would need to obtain a transcript of the evidence in order that the ground could properly be assessed.

1. Ground 5 says:

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“The learned Recorder erred in law in founding his breach finding on pre-limitation events, without conducting an independent assessment of the Trust’s specific acts or omissions within the actionable period. At paragraph 22, the Recorder correctly held that the limitation period barred claims arising before 4 October 2022 and that no grounds for extension had been pleaded. At paragraph 23, he stated that ‘ this conclusion makes only a small difference to the outcome of the case.’ That assessment was wrong. The Recorder’s breach finding at paragraph 66 was anchored in events in 2019, 2020, and May 2022, all predating the relevant actionable period.”

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1. This ground overlooks the fact that the defendant’s breach was ongoing and continued into the period of one year prior to issuing of the claim form. That part of the ongoing breach was accordingly not statute-barred. This ground of appeal has no reasonable prospect of success and there are no other grounds for granting permission to appeal.

1. As to grounds 1, 2 and 4, the defendant “contends that the judgment of the learned Recorder raises a novel and important question that has not previously been the subject of considered appellate authority: what is the scope and content of the Article 3 duty – as articulated by the Court of Appeal in ASY v Home Office [2024] EWCA Civ 373; [2025] KB 87 – when applied to an NHS Trust acting as a mental health care provider within a multi-agency prison healthcare system? That question has potential implications for a significant number of NHS Trusts operating in custodial settings and is a sufficient compelling reason for permission to appeal to be granted.”

1. I agree with this submission and would have granted permission to appeal on these grounds without considering the individual merits of the grounds.

1. However, I would have granted permission to appeal subject to two conditions. The first condition is that the defendant would not object to the appeal court considering whether to substitute a declaration of breach instead of the award of damages, notwithstanding that the claimant has not served any respondent’s notice. In the current case, the claimant as a serving prisoner and a litigant in person may well have difficult formulating a proper respondent’s notice.

1. The second is that the defendant within seven days of permission to appeal being granted send a copy of this judgment, the substantive judgment and the orders of 31 st March 2026 and 24 th April 2026 to Advocate (formerly the Bar Pro Bono Unit) at the International Dispute Resolution Centre, 1 Paternoster Lane, St. Paul's, London, EC4M 7B with the contact details for the claimant with a suggestion that Advocate contact the claimant with a view to providing representation for him.

1. It is open to the defendant to apply to the High Court for permission to appeal, however, it is now out of time for doing so. In order that the High Court understand the timeline in the event that an application to extend time is made, the position is this. The application to me for permission to appeal is dated 17 th April 2026. The Court forwarded the application to me on 23 rd April 2026 and I am delivering this judgment the following day. Thus the twenty-one day period for making the application to the High Court had already expired on 21 st April 2026, when I received it.

End of document

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