ON APPEAL FROM THE HIGH COURT QUEENS BENCH DIVISION
MR JUSTICE EDWARDS-STUART
London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LADY JUSTICE BLACK
| THE QUEEN ON THE APPLICATION OF MODARESI
|- and -
|SECRETARY OF STATE FOR HEALTH & ORS
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
Hearing dates : 15th November 2011
Crown Copyright ©
"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".
"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."
Case against the Tribunal
"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  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."
Case in relation to Secretary of State and Trust
"Please find attached a completed (but unsigned and undated) referral form for a First Tier Tribunal.
Our above-named client was detained under s.2 MHA 1983 on 20.12.10. We understand that our client completed an application form for a First Tier Tribunal in relation to her s.2 detention within the 14 day time limit. Unfortunately, due to this form being completed over a bank holiday weekend, the form was not faxed over to the Tribunals Service until 4.1.11 when the Mental Health Act Administrator returned to work which was then outside the 14 day time limit.
We have received notification from the Tribunals Service that the application is, therefore, considered invalid and that they have closed the file and will be taking no further action.
We are writing to ask that the Secretary of State refer to our client's case for a Tribunal in accordance with s.67 MHA 1983.
We make this application on the basis that, through absolutely no fault of our client, the application was not sent to the Tribunals Service in time. Although our client completed the form in time, due to no procedures being in place at the hospital for applications to be submitted when no Mental Health Act administrator is on duty, she was not facilitated in ensuring that the application was sent immediately to the Tribunals Service.
While our client is now detained under s.3 and therefore is eligible to submit a new application for a First Tier Tribunal, to do this would deprive our client of her hearing to which she was entitled as a s.2 patient. Should the Secretary of State agree to make the requested referral, this will ensure that our client will retain her right of application under s.3 in due course.
We would be obliged this request could be considered as a matter of urgency."
" The Secretary of State does not take the view that a reference must invariably be made where a patient has failed to exercise the right provided in the Act to apply for a hearing within 14 days of being admitted under section 2 of the Act. The 14 day limit exists for a purpose. The Act makes no special provision for Public or Bank Holidays or other non-working days.
The Secretary of State has noted that Ms Mo dares i was originally detained under section 2 of the Act on Monday, 20 December 2010. Accordingly, Ms Modaresi had until Sunday, 2 January 2011 in which to apply to the First Tier Tribunal for a hearing against her detention under the Act. You have advised that although Ms Modaresi duly completed an application form during that weekend, there were no arrangements in place for applications to be dealt with in the absence of the mental health act administrator. For this reason, the application form was not faxed to the Tribunals Office until 4 January 2011 when the mental health act administrator returned to work. Ms Modaresi was subsequently detained under section 3 of the Act on Thursday, 6 January 2011.
The Secretary of State has considered all the information before him and has decided on this occasion not to exercise his discretionary powers under section 67 of the Act to refer the case of Ms Elham Modaresi aka. Elham Chogani to the First Tier Tribunal. In reaching his decision, he took into account that as Ms Modaresi is now detained under section 3 of the Act, she can make her own application to the First Tier Tribunal. In the event that Ms Modaresi did not make an application, the hospital managers would have to make a reference under section 68 of the Act as of 20 June 2011, when Ms Modaresi would have been detained under the MHA for more than 6 months.
However, should Ms Modaresi make an application to the First Tier Tribunal and the tribunal panel were to uphold her detention under the Act, the Secretary of State would consider any further request for a section 67 reference submitted during her current period of detention."
"Our system of law is rightly scrupulous to ensure that in matters affecting individual liberty the law is strictly applied. It is a hallmark of a constitutional democracy."