R (Modaresi) v SSH [2011] EWCA Civ 1359

The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

LIMITATION OF ACTION — Period of limitation — Application to mental health tribunal — Patient’s application to tribunal for review of her detention in hospital — Hospital administration faxing application notice to tribunal administration late on day before public holiday — Notice not received by tribunal until first business day after holiday period — Time limit expiring in meantime — Whether application to be treated as served within time — Mental Health Act 1983, s 66 — Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, rr 12, 32

Regina (Modaresi) v Secretary of State for Health and others

[2011] EWCA Civ 1359.; [2011] WLR (D) 340

CA: Mummery, Richards, Black LJJ: 23 November 2011

The 14-day period allowed to a detained mental patient to lodge an application with the Mental Health Review Tribunal as provided by section 66 of the Mental Health Act 1983 and rule 32(1) the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 was not to be considered to have expired where, though sent by fax on the last working day within the period, it was not in fact received by the tribunal until the next working after an intervening holiday period during which the 14-day time limit had expired.

The Court of Appeal so stated in (1) allowing the appeal of the claimant, Elham Modaresi, from the decision of Edwards-Stuart J [2011] EWHC 417 (Admin) handed down on 3 March 2011, in respect of the refusal of her application for judicial review of the decision of the second defendant, the First-tier Tribunal (Mental Health, Education and Social Care), for wrongfully refusing to accept her application under section 66 of the 1983 Act. The court dismissed the claimant’s appeal in respect of the judge’s dismissal of her claim against the refusal of the first defendant, the Secretary of State for Health, to refer her case to a tribunal and as against the third defendant, West London Mental Health NHS Trust, in respect of their alleged breach of article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998.

The claimant, who suffered from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under s 2 of the 1983 Act. On the afternoon of 31 December she handed a member of the ward staff her completed application form to the tribunal seeking a review of her detention. At 16.41 he faxed the form to the administration office of the third defendant trust, but the administrator who would normally forward such a form to the tribunal was not present on that day and the form was not seen by those who were on duty. After that, the office was closed until 4 January 2011, when the form was found and faxed immediately to the second defendant tribunal. Staff at the tribunal considered that the application was outside the 14-day time limit and therefore invalid.

Section 66 of the 1983 Act provided that where a patient was admitted to hospital under section 2, “an application may be made to [the appropriate tribunal] within the relevant period” which was defined by section 66(2)(a) as “14 days beginning with the day on which the patient is admitted”. Rule 32 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provided that such an application “must be ... (c) sent or delivered to the tribunal so that it is received within the time specified in the Mental Health Act 1983". Paragraph 12 of the Rules provided: “ If the time specified by these Rules ... ends on a day other than a working day, the act is done in time if it is done on the next working day.”

BLACK LJ said that the judge had been of the view that the time limit was not one specified by the Rules and that paragraph 12 did not apply. He pointed out that rule 32 said that an application should be sent or delivered so that it was received “within the time specified by the ... Act” which was 14 days beginning with the day on which the patient had been admitted, and unless compelled by authority to decide otherwise, he considered that those words meant what they said. He was referred to Pritam Kaur v S Russell and Sons Ltd [1973] QB 336Not on Bailii in which it was held that, if the limitation period for an action expired on a day when the court offices were not open, the plaintiff should be allowed to commence his action on the next day when the offices were open. Edwards-Stuart J did not consider that that assisted the claimant because a patient could send an application to the tribunal by fax so that it was received almost instantaneously whether the office was open or closed. He was influenced by the fact that the delivery of a notice or application to the court was a unilateral action on the part of the applicant which required nothing of the court office, as was pointed out in Van Aken v Camden London Borough Council [2003] 1 WLR 684.

The judge's attention was unfortunately not invited to Mucelli v Government of Albania [2009] 1 WLR 276, paras 83–84, where the House of Lords held that if the recipient’s office was closed on or for part of the last day of a notice period, the notice would be validly served if given at any time during the first succeeding day on which the office was open, ie the next business day. Her Ladyship saw no reason why the same approach should not be equally applicable to the calculation of time in relation to an application such as the present one in relation to detention under section 2 of the 1983 Act. In Mucelli’s case Lord Neuberger of Abbotsbury dealt expressly with the specific point that Edwards Stuart J found persuasive, ie the possibility of delivering the notice (or, here, making the application) by fax without the need for the court office to contribute anything to the process. Lord Neuberger was clear that that did not affect his conclusion, and the availability of transmission by fax should not, in her Ladyship’s view, make any difference in this case either. Accordingly, by the same process of reasoning as that adopted in Mucelli’s case, the claimant's time for making her application to the tribunal was extended to include 4 January 2011, that being the first working day after time would otherwise have expired, and her application should have been accepted by the tribunal.

RICHARDS and MUMMERY LJJ agreed.

Appearances: Richard Gordon QC and Matthew Stockwell (instructed by Peter Edwards Law) for the claimant; Paul Greatorex (instructed by DWP/DH Legal Services) for the Secretary of State; Owain Thomas (instructed by Capsticks Solicitors LLP) for the trust; the tribunal did not appear and was not represented.

Reported by: KEN MYDEEN, Barrister.

© 2011. The Incorporated Council of Law Reporting for England and Wales.

Other

Hearing: 15/11/11

Judgment: 23/11/11

Before: Mummery, Richards, Black LJJ

Mr Richard Gordon QC & Mr Matthew Stoekweli (instructed by Peter Edwards Law) for the Appellant

Mr Paul Greatorex (instructed by DWP/DH Legal Services) for the 1st Respondent

Mr Owain Thomas (instructed by Capsticks Solicitors LLP) for the 3rd Respondent

Citations

R (Elham Modaresi) v (1) Secretary of State for Health, (2) First-tier Tribunal (Mental Health), (3) West London Mental Health NHS Trust [2011] EWCA Civ 1359

External links

BAILII

ICLR

Supreme Court, 'Permission to Appeal results - June 2012' (4/7/12). Leave to appeal was granted on 13/6/12