R Modaresi v Secretary of state for Health and Others
| Jurisdiction | England & Wales |
| Judge | Black LJ,Richards LJ,Mummery LJ |
| Judgment Date | 23 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1359 |
| Docket Number | Case No: C1/2011/0748 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2011 |
[2011] EWCA Civ 1359
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE EDWARDS-STUART
CO4162011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Richards
and
Lady Justice Black
Case No: C1/2011/0748
Mr Richard Gordon QC & Mr Matthew Stoekwell (instructed by Peter Edwards Law) for the Appellant
Mr Paul Greatorex (instructed by DWP/DH Legal Services) for the 1 st Respondent
Mr Owain Thomas (instructed by Capsticks Solicitors LLP) for the 3 rd Respondent
Hearing dates : 15th November 2011
Judgment Approved by the court for handing down (subject to editorial corrections)
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This is an appeal against orders made by Edwards Stuart J on 3 March 2011 in judicial review proceedings. The central question with which it is concerned is the time for service of an application to a tribunal by a detained mental patient under section 66 of the Mental Health Act 1983 (the Act).
The Appellant, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Act.
Section 66(1) of the Act provides that where a patient is admitted to hospital in this way, "an application may be made to [the appropriate tribunal] within the relevant period" by the patient. Section 66(2)(a) provides that "the relevant period" in subsection (1) means "14 days beginning with the day on which the patient is admitted".
The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules) apply to the application. Paragraph 32(1) of the Rules (as relevant to this case) provides that
"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 deals with calculating time. Sub-paragraph (2) provides:
"If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day."
On the afternoon of 31 December 2010, the Appellant gave a completed application form for the Mental Health Review Tribunal to a member of staff on her ward. At 16.41 that day, he faxed the form to the Mental Health Administration Office of the West London Mental Health NHS Trust (the Third Respondent to this appeal, which I will call simply "the Trust"). 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 day, the office was closed until 4 January 2011 when the form was found and faxed immediately to the Tribunal.
Staff at the Tribunal (which is the Second Respondent to this appeal) considered that the application was outside the 14 day time limit and therefore invalid. They wrote to the Appellant's solicitors on 5 January 2011 to that effect.
Case against the Tribunal
It is not necessary to recite what happened next at this point in the judgment and, in the interests of clarity, I do not propose to do so, although I shall return to it later when I come to deal with the appeal as it concerns the First Respondent (the Secretary of State for Health) and the Trust.
What it is important to record immediately, however, is that Edwards Stuart J dismissed the Appellant's claim against all three Respondents. The starting point of his decision was that the Appellant's application to the Tribunal had indeed been out of time.
The argument presented to the judge by the Appellant was that the time limit for making the application was to be calculated in accordance with paragraph 12(2) of the Rules. As the 14 days allowed expired on a non-working day, the application was therefore made in time if it reached the Tribunal on the next working day. The next working day after time expired in this case was 4 January 2011 which was the day on which the application form arrived with the Tribunal and so, on this argument, the application was duly made.
The judge held that paragraph 12 did not apply. In his view, the time limit was not one "specified by these Rules" but by s 66(1) of the Act. He pointed out that paragraph 32 said that an application must 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 was admitted and he said that unless compelled by authority to decide otherwise, he considered that those words meant what they said.
He was referred to the case of Pritam Kaur v S Russell and Sons Ltd [1973] QB 336 which he recorded was cited in Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879. In Pritam Kaur, 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 Appellant because a patient can send an application to the Tribunal by fax so that it is received almost instantaneously whether the office is open or closed. He was influenced by the fact that the delivery of a notice (or in this case an application) to the court is a unilateral action on the part of the applicant which requires nothing of the court office as was pointed out in Van Aken v Camden LBC [2003] 1 WLR 684.
The judge's attention was unfortunately not invited to the House of Lords authority of Mucelli v Govt of Albania [2009] UKHL 2 [2009] 1 WLR 276. Indeed, that authority was not cited to us in the parties' skeleton arguments either and it was the court that caused it to be brought to counsels' attention in advance of the appeal hearing. Although an extradition case, it is of considerable importance for the present appeal. One point at issue in it was the calculation of the time allowed for the giving of a notice of appeal to the High Court against a District Judge's order permitting extradition and, in particular, what happens if the office of the recipient of the notice is closed at the end of the period of service. The House of Lords was there considering two time limits, namely a seven day period laid down by section 26(4) of the Extradition Act 2003 and a fourteen day period laid down by section 103(9) of the same Act. At paragraphs 83 and 84, Lord Neuberger said:
"83. Another point which arises is what happens if it is impossible to give notice on, or during the final part of, the last day. For instance, in relation to filing, the Court Office may be closed on the last day because it is Christmas Day or another Bank Holiday, and the Court office will be closed at some point in the late afternoon on the last day. Equally, the respondent's office may be closed for the same reasons.
84. Where the requisite recipient's office is closed during the whole of the last day, I consider that the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i.e. the next business day). So if the final day for giving a notice of appeal would otherwise be Christmas Day, filing or service can validly be effected on the 27th December (unless it is a weekend, in which case it would be the following Monday). This conclusion accords with that reached in Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336. As Lord Denning MR said at 349E, "when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when time expires, then, if it turns out … that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open". I agree, and I can see no reason not to apply the same principle to service on a respondent in relation to the respondent's office. The fact that fax transmission can be effected at any time does not cause me to reconsider that conclusion."
The majority of the House agreed with both Lord Neuberger's conclusion and his reasoning.
I see no reason why Lord Neuberger's approach should not be equally applicable to the calculation of time in relation to an application such as this one in relation to detention under section 2 Mental Health Act and, in fact, every reason why it should be. As is apparent from Mucelli, the regime in extradition cases imposes rigorous time limits. There is no reason to take an even more rigorous approach to time limits set out in the Mental Health Act. Indeed, if anything, a less strict approach might be contemplated given that the applicant is a patient undergoing assessment for mental health difficulties. However, I need not pursue that further as I am satisfied that Lord Neuberger's considered view should be applied to the calculation of time for the Appellant's application to the tribunal.
Lord Neuberger dealt expressly with the specific point that Edwards Stuart J found persuasive, that is to say 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 my view, make any difference in our case either.
None of the Respondents argued against the application of Mucelli to determine the timing issue here.
Accordingly, the answer to the present appeal in relation to Edwards Stuart J's decision concerning the Tribunal is, in my judgment, that by the...
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