Case No: C3/2011/1630
Neutral Citation Number: [2011] EWCA Civ 1560
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL
(HHJ EDWARD JACOBS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 23 November 2011

Before:

LORD JUSTICE RIX

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	HUTTON & ORS 	
Appellants	
	
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CRIMINAL INJURIES COMPENSATION AUTHORITY	

Respondent
	
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The Appellant appeared in person.

The Respondent did not appear and was not represented.

Judgment

Lord Justice Rix:

1.	This is the renewed application for permission to appeal of Mr Vincent Hutton, his sister, Ms Fiona Hutton, and their mother, Mrs Yvonne Akers.  Permission to appeal is sought from the decision of the Upper Tier Tribunal in the matter of the decision of HHJ Edward Jacobs given on 25 September 2010.  The matter arises in this way, and for convenience I will speak of Mr Hutton’s case, while recognising the separate cases of his sister and his mother lie in exactly the same position.  There are in fact separate decisions in respect of each of the three applicants, and I am considering those three applications together, but by reference to the documents in Mr Hutton’s case.

2.	These proceedings arise out of the tragic death of Mr Hutton’s father, Abraham Hutton, way back in 1966.  His killer stood trial, and was convicted of manslaughter and sentenced to 18 months’ imprisonment.  At that time, Mr Hutton was a baby, I do not recall if he or his sister is the older child, but one baby was 5 months old, and the other toddler was 17 months old at the time of their father’s death; their mother was 21.  Her partner’s death (I think they were engaged at the time) caused her mental problems.  It has been accepted by HHJ Edward Jacobs that in effect because of the problems of Mr Hutton’s mother, and indeed of his sister, the responsibility of pursuing a claim under the Criminal Injuries Compensation Authority scheme, which is the background to these proceedings, lay upon Mr Hutton himself.

3.	Mr Hutton, a baby or toddler at the time of his father’s death, ultimately did not make a claim to the Criminal Injuries Compensation Authority (“the Authority”) until 2008; that is to say, 32 years after his father’s death.  I am not quite sure of the date of the conviction of the offender.

4.	The scheme that the Authority exercises contains a two-year limitation.  Paragraph 18 of the scheme says:

“An application for compensation under this scheme in respect of criminal injury ... must be made in writing on a form obtainable from the Authority.  It must be made as soon as possible after the incident giving rise to the injury and must be received by the Authority within two years of the date of the incident.  A claims officer may waive this time limit where he considers that, by reason of the particular circumstances of a case, it is reasonable and in the interests of justice to do so.”

I will also refer to paragraph 19 of the scheme, which states:

“It will be for the applicant to make out his case, including ... making out his case for a waiver of the time limit in the preceding paragraph.”

5.	When Mr Hutton made his claim to the Authority in 2008, it was rejected by the underlying decision of the Authority itself dated 13 August 2008, which referred to the two-year time limit under paragraph 18.  It referred to the possibility of waiving that time limit, but went on to state in a brief letter:

“In your case, because of the delay in sending us the application, we have been unable to get police information to confirm the facts surrounding the incident in which the deceased was involved.”

As I understand the facts, that was not the case, because Mr Hutton had obtained the police files; and indeed, it was his difficulty in getting hold of the underlying material to enable him, as he understood the matter, to make the claim which had been in large part responsible for the delay.

6.	That decision went to review under the scheme itself; we do not have the decision in the papers, but the reviewer came to the same conclusion as the first case-worker and decision-maker.  Then Mr Hutton was entitled to appeal to the First‑Tier Tribunal, which he did, but the decision of Tribunal Judge Thomas Ward of 25 September 2009 was to turn down his appeal.  Essentially, Judge Ward found that there were no “particular circumstances” within paragraph 18 to entitle him to waive the time limit, nor would it be “reasonable and in the interests of justice” for him to do so, seeing that after such considerable delay enquiries cannot be made and effected speedily, and the extra time and effort required to investigate a delayed application causes extra expense and resources to be committed.  Also he said that there was no explanation satisfactory to him for the failure to make the application sooner.

7.	Following that decision, Mr Hutton applied for judicial review; as I understand the papers, it is judicial review of that decision rather than of the original Authority’s decision; but whatever is the strict accuracy of the matter, he applied for permission to bring judicial review proceedings, as he was entitled to do, but he was refused in the Upper Tribunal, which is the place to make that application to.  He was refused first of all on paper by Upper Tribunal Judge Bano in his decision of 2 July 2010, and subsequently on renewal at an oral hearing by the decision of Upper Tribunal HHJ Edward Jacobs dated 3 March 2011, to which I referred at the beginning of this judgment.  Both of those judges were sympathetic to a considerable extent to Mr Hutton’s application; for instance, Judge Bano stated that he accepted Mr Hutton’s submission that the First‑Tier tribunal was wrong to say that there were no relevant particular circumstances in the case.  The fact that he and his sister had been minors, and it would also be relevant in the mother’s case to refer to her medical difficulties, were particular circumstances in the case.  It was accepted that until, at any rate, Mr Hutton turned 21, there could be no difficulty about extending time until that time.  I am not quite sure why the year 21 has been taken as being the relevant age, because I suspect Mr Hutton is young enough to become an adult at 18.  However,  at any rate 21 was taken as being the appropriate time at which the responsibility of making the claim on behalf of himself, his sister and his mother fell upon his shoulders; and the two years’ time limit, as it were, was considered to operate from that time.

8.	HHJ Bano also made a further criticism of the decision of the First‑Tier tribunal when he said he agreed with Mr Hutton that that tribunal ought to have taken into account that the complete police file was available, and that there has never at any time during the making of the claim been any doubt about the circumstances in which the appellants’ father met his death.  Nevertheless, Judge Bano considered that Mr Hutton had not given a satisfactory explanation for not making a claim under the scheme until 22 years after he obtained his majority, and he emphasised that the onus of making out his case for a waiver of the time limit lay upon him; he might have added that under the same paragraph 19, which I have cited, the onus of making out his essential case, let alone a case for the waiver, rested upon him, of course.

9.	HHJ Edwards after hearing Mr Hutton in person -- and he was the first decision‑maker to have heard Mr Hutton in person, all previous applications had been dealt with on paper -- said effectively that he accepted all of Mr Hutton’s evidence.  Indeed, he stated at paragraph 4:

“Having heard the oral evidence at the hearing, I would have given permission to apply for judicial review if I could properly do so.  I have not been able to find a reason that would allow me to give permission, and these are the reasons.”

The judge stated the test that he had set himself as being this:

“The question I have asked myself is: could the First-tier Tribunal properly have waived the time limit in the circumstances of this case?”

The question that the Upper Tribunal set itself was not, as it often is in judicial review, can it be shown that the decision of the underlying decision-maker was perverse; but the very reverse of that question, could the First‑Tier Tribunal properly have waived the time limit in the circumstances of this case, and he answered that question in the negative.  He said that the First‑Tier Tribunal could not properly have come to a different conclusion; he said so despite accepting, as he stated in his decision: 

“... everything that I was told orally and in writing about the impact of Abraham’s death on his family and about the steps that Vincent Hutton took to find out what exactly had happened.  I accept that Vincent was the only person whose mental state allowed him to take action in respect of himself, his mother and his sister ... I am satisfied that he did all he could reasonably do in attempting to track down the information.”

However, the answer to the question that he posed himself was in the negative, because he considered that it was not necessary for Mr Hutton to track down the information in order to make his claim; he said that his father’s unlawful killing was sufficient of itself.  He said:

“The fact of his father's unlawful killing was sufficient of itself to allow an application to be made.”

10.	The difficulty that I have at present with that reasoning is, firstly, that on the evidence of Mr Hutton, as I understand it, so far as I have seen it in writing, was that coming as he did to the problem of making a claim at the age of 21 and following, some 20 years or more after the death of his father, and so long after the criminal proceedings to which that gave rise, he found himself utterly unable, as he thought, to begin to make a case of unlawful killing; he did not even know the name of the offender, and because he did not know the name of the offender, he found it impossible to obtain any information about the criminal proceedings below, and so forth.  Now it may be, as the decisions of the tribunals in this case suggest, that essentially the details of such matters are for the Authority itself to investigate, and that may well be the case; but nevertheless, the applicant, as I think I understand the rules at the moment, and as may arguably be the case, has to make out the case for the application for compensation that he is making, at any rate to some first ground base.

11.	It seems to me that it is reasonably arguable, and that there is a reasonable prospect of success on appeal, to the effect that if, as HHJ Edward Jacobs did, all of the evidence, oral and written, of Mr Vincent is accepted, then there are particular circumstances in this case why it might be reasonable and in the interests of justice to allow the case to go forward with the waiver of the two-year time limit.  It seems to me that although there is, of course, a natural reluctance to accept that -- let us call it a 20-year time gap, or thereabouts, from Mr Hutton’s majority up to 2008 -- such a long time gap can be reasonably explained, or that it can be said to be reasonable in the interests of justice to allow such a stale claim to go forward, nevertheless the facts so far established, in the opinion of HHJ Edward Jacobs do, it seems to me, arguably raise some very “particular circumstances” why it might arguably be said to be reasonable and in the interests of justice to allow even such a stale claim to go ahead.  It cannot, after all, in the end be said that the facts are not properly before the Authority; in circumstances where HHJ Edward Jacobs says that he would have given permission to apply for judicial review if he could properly do so, and where his test was whether the First‑tier Tribunal could properly have waived the time limit, it seems to me that there is enough of an argument in this case for me properly to give permission to the Court of Appeal to apply for judicial review.

12.	It is not quite clear to me whether there should be a rolled-up hearing in the Court of Appeal dealing with permission for judicial review, and for judicial review within the Court of Appeal if permission is given, or whether the matter would have to go back to the Upper Tribunal; but if it is appropriate for there to be a rolled-up hearing in the Court of Appeal, I would give directions for that.

13.	Mr Hutton has raised many other arguments in his latest grounds to this court why permission should be given, referring for the first time in the history of these proceedings to the Human Rights Convention, and alleging duties of care, and alleging discrimination, and so forth.  I have discussed that with Mr Hutton this morning; I have said that I was not minded to give permission on those new grounds.  He has not pressed them, and I do not give permission on those grounds.  I give permission on the essential issue of whether there are, in these circumstances, particular circumstances making it reasonable and in the interests of justice for the time limit to be waived, to be an issue which is arguably one for which permission to move for judicial review should be given.

14.	I therefore give permission to appeal.  I will say half a day is my estimate; three judges, one of whom may be a High Court Judge.

Order:  Application granted.