Modaresi, R (on the application of) v Secretary of State for Health & Ors

A statutory time limit for filing or serving an act is extended to the next working day where the final day falls when the recipient’s office is closed and the act can only be completed through that office. The availability of fax transmission does not alter that conclusion. The principle applies to an application under the Mental Health Act 1983, section 66. Article 5(4) requires an entitlement to obtain a speedy judicial determination of the lawfulness of detention. It does not require preservation of a separate later application where the patient has a current statutory route to a tribunal. A decision under section 67 is not automatically unlawful merely because it accepts an erroneous tribunal view on time, provided the decision-maker considers the patient’s actual position and remains subject to ordinary public-law review.

The appellant was detained under section 2 of the Mental Health Act 1983 on 20 December 2010. She completed a tribunal application within the 14-day period and gave it to hospital staff on 31 December. It was faxed to the Trust that afternoon, but the relevant office was closed until 4 January 2011, when the form was sent to the Tribunal. The Tribunal treated the application as out of time.

Edwards-Stuart J dismissed the appellant’s judicial review claims against the Tribunal, the Secretary of State and the Trust. The appeal concerned the calculation of time, the Secretary of State’s refusal to make a discretionary referral under section 67 after the appellant became detained under section 3, and the Trust’s alleged duties concerning timely transmission of applications.

Black LJ, with Richards LJ and Mummery LJ agreeing, allowed the appeal against the Tribunal but dismissed the appeals against the Secretary of State and the Trust.

1. Tribunal application. The House of Lords decision in Mucelli v Govt of Albania, [2009] UKHL 2, applied to the statutory time limit. Where the recipient’s office is closed throughout the final day, an act requiring delivery through that office may be completed on the first succeeding working day on which the office is open. The fact that transmission by fax is technically possible does not change the result. The same principle applied to the appellant’s application under section 66 of the Mental Health Act 1983. Her application was therefore in time and should have been accepted.
2. Trust. The court declined to determine hypothetically what duty the Trust might have owed to maintain systems for timely transmission. The Trust had in fact forwarded the application in time under the correct calculation, so the issue could not affect the outcome. The appeal against the Trust was dismissed.
3. Secretary of State. A claim against the Tribunal and a claim against the Secretary of State were not necessarily mutually exclusive. The general referral power under section 67 could in principle be used where processing had gone wrong, so that a patient’s case could still be placed speedily before a court as required by Article 5(4).
4. Article 5(4) required an entitlement to take proceedings for a speedy determination of the lawfulness of detention. The appellant had such an entitlement through her current section 3 detention. Article 5(4) did not require her to preserve that application for a later stage, and the disadvantage of using it immediately did not make the Secretary of State’s refusal unlawful. The Secretary of State’s acceptance of the Tribunal’s erroneous view did not automatically vitiate his decision. Reading the decision letter as a whole, he had considered the appellant’s actual position and had lawfully exercised his discretion, subject to ordinary public-law principles and judicial review.

• Court of Appeal (Civil Division): allowed the appeal concerning the Tribunal’s refusal to accept the application; dismissed the appeals concerning the Secretary of State and the Trust.
• High Court (Administrative Court): Edwards-Stuart J dismissed the judicial review claims against all three respondents on 3 March 2011.