B, R (on the application of) v London Borough of Camden & Ors

Permission to appeal was refused. The proposed appeal had no realistic prospect of success, and this particular case was not a compelling vehicle for resolving wider questions concerning pre-discharge mental-health duties, funding, damages and positive obligations under Article 5. Public importance did not justify continuing proceedings where judicial review had secured the practical remedy, any damages would be modest, and further costs would be disproportionate. The court accepted the lower judge’s careful analysis but considered that unresolved issues should be tested in a properly prepared future case.

Mr B had been detained under Sections 37 and 41 of the Mental Health Act 1983 following conviction for serious violent offences. A mental health review tribunal made a deferred conditional-discharge order in September 2003, including a condition requiring suitable hostel accommodation. He was eventually discharged to Holtwhites Villas on 2 July 2004.

He brought judicial review proceedings and a damages claim against Camden and the Camden & Islington Mental Health Social Care Trust, alleging breaches of Section 117 and Articles 5 and 8 of the European Convention. Stanley Burnton J dismissed the claims. Buxton LJ refused permission on paper, and Mr B renewed the application before Wall LJ. The central issue was whether permission should be granted to raise the disputed statutory and Convention questions.

Application refused. Wall LJ refused the renewed application under CPR 52.3. The proposed appeal had no realistic prospect of success, and the case did not provide a compelling reason for the Court of Appeal to hear the wider issues.

1. The practical dispute had largely been overtaken by events. Mr B had moved to the hostel, and judicial review proceedings in April 2004 had obtained interim relief which accelerated the process. The remaining issue was principally whether modest damages were recoverable.
2. Any possible damages would have been disproportionate to the cost of continuing the proceedings. The lower judge had identified a maximum figure of £1,500. That assessment supported refusal of permission even if the damages issue were arguable.
3. Wall LJ regarded the lower judge’s analysis as convincing and agreed with Buxton LJ’s reasons. For the purpose of assessing prospects, he accepted the conclusion that the duty under Section 117(2) of the Mental Health Act 1983 arose only after the tribunal’s final conditional-discharge decision, not after its earlier provisional decision.
4. The lower judge had also addressed the practical pre-discharge problem by recognising a power to take preparatory steps and the need, in appropriate circumstances, to use reasonable endeavours following a tribunal decision. That approach was discussed by reference to The Queen on the Application of K v Camden & Islington Health Authority [2001] EWCR Civ 240. The court accepted that the careful first-instance judgment disposed of Mr B’s case.
5. The broader questions, including monitoring duties, the effect of Section 47 of the National Health Service and Community Care Act, funding, damages for breach of Section 117 and the interaction with Article 5 of the European Convention, were better determined in another case with a fuller factual and procedural platform, possibly by combining related cases.

Order: application refused.

• Court of Appeal (Civil Division): Wall LJ refused the renewed application for permission to appeal on 21 February 2006, agreeing with Buxton LJ’s reasons and accepting the lower judge’s analysis.
• Queen’s Bench Division (Administrative Court): Stanley Burnton J dismissed the judicial review application and damages claim in a reserved judgment handed down on 5 July 2005.
• Permission stage: Buxton LJ refused permission on paper on 26 October 2005. The application was orally renewed before Wall LJ.