BEWARE statutory time limits to appeal: if you are late, you are out
30 November 2011
Modaresi v. Secretary of State for Health & others [2011] EWCA Civ 1359, Court of Appeal
Any lawyer dealing with civil or criminal cases tends to think that, if there is a time limit for doing something in the case, then if that thing does not get done on time, the court may be lenient if there is good reason for extending time. The problem comes where the court is only given power to hear an appeal by a specific set of rules, and the rules say, for instance: you must appeal within 14 days of the decision. In the statutory context, that may mean precisely what it says. And the court, however sympathetically inclined, cannot do otherwise and allow a late appeal.
We see this from this mental health case. Ms Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act. Section 66 of the Act provides that where a patient is admitted to hospital in this way, “an application may be made to [the tribunal] within the relevant period” by the patient, and “the relevant period” means “14 days beginning with the day on which the patient is admitted”.
Any appeal goes to the relevant bit of the First-tier Tribunal, and its rules provides that an application must be sent or delivered to the Tribunal so that it is received within the time specified in the Mental Health Act 1983. Leaving aside these domestic rules, many will know that provision for such an appeal is guaranteed by Article 5(4) of the Convention.
On the afternoon of 31 December 2010 (so day 11 and within her 14 days), Ms Modaresi gave a completed application form for the Mental Health Review Tribunal to a member of staff on her ward. At 16.41 that day, the member of staff faxed the form to the Mental Health Administration Office of the West London Mental Health NHS Trust. Unsurprisingly, given that it was New Year’s Eve, the Administrator who would normally forward such a form to the Tribunal was not in the office 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. The Tribunal (also a party) said that the application was outside the 14 day time limit and therefore invalid. They wrote to Ms Modaresi to that effect. The actual decision in this case was that, due to another rule that if time expires on a day when the Tribunal is shut, time is extended to the end of the next working day, and hence, Ms Modaresi’s judicial review of the Tribunal’s decision was successful. The form had got there to the Tribunal by the end of that next working day, and the Tribunal were wrong to decide otherwise. Hence she could appeal.
But the message of the case is a good deal wider. Say the Administrator had not been in the next day or had not got round to sending the form in. Ms Modaresi would have had no chance of appealing. In this case, she might have had other remedies (as are discussed by the Court of Appeal), but these may not have been so advantageous. But the problem is far from confined to mental health law. There are equally firm time limits applicable to appeals by doctors and nurses/midwives in respect of decisions by their disciplinary bodies (GMC and NMC), as Ms Mitchell and Ms Holmes found to their cost, as there are in extradition cases such as Mucelli. The immediate reasons why the court’s hand are tied are not far to seek. Where a time limit is set within the general court context, the courts have either an express or implied ability to extend time. But where the time limit is set firmly by a law which itself is the only reason that the court gets to hear the case, then the court cannot do anything other than follow the time limit set out by the law, however unjust that may seem. Perhaps there ought to be such a discretion, but the civil servants who draft many of these regulations may not understand that in at least some cases a firm time limit can cause real injustice. Reflect on those Mental Health Act patients who have to appeal within 14 days – they may need all the help they can get to assist them appeal. And, after all, the drafter is never the person turning away an otherwise meritorious appeal on the basis that it was made on day 15. Perhaps if they were, they wouldn’t draft the law in that way.
I was involved in the starkest possible instance of this sort of rule. Some years ago, I helped out a Caribbean prisoner on his appeal against conviction for murder. He was on death row. Any murder was then a capital offence in that jurisdiction. A few days after conviction, he “spoke nicely to” his prison officers, and, one night, found that his way out of prison had been “facilitated”. He was apprehended some time later. What to do, given that he had some sort of case as to how the trial had been unjustly handled and hence his conviction wrongly obtained? Answer: Nothing, though I ended up helping to draft a plea of mercy to be considered by the Governor-General – which is not really where you want to be. This was because the legislation provided for appeals against conviction to be brought within 14 days – period. Researches showed that this draconian rule derived from a UK equivalent in force when we hanged people here. No discretion if your appeal form got there on day 15. The justification was as hard as it gets; if you were going to hang someone, at least do it quickly. (Sequel to the story – very fortunately, some time after apprehension, the rules changed, so that murders were categorised as capital or non-capital murders. And his offence fell into the latter category. So escaping, which could have been – literally – fatal, turned out to save his life.)
But back to the here and now. Anyone who is thinking of appealing, please do it in time – don’t assume that you can get round a time limit. And if you are thinking of going to a lawyer, give them time to fill in the form for you. Don’t leave it until the morning of day 15. They may not be able to help you.
Owain Thomas, who was for the Trust in this case, was not the author of this post.
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