England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16th July 2008

1. THE DEPUTY JUDGE: This is an application for judicial review lodged on 2nd June 2006. Permission was granted on the papers by Munby J on 31st October 2006.
2. On 15th June 1998 the claimant was assaulted and injured. He applied to the Criminal Injuries Compensation Appeals Panel ("the CICAP") for compensation under the Criminal Injuries Compensation Scheme 2001 ("the Scheme"), or rather his application was to the Criminal Injuries Compensation Board in the first instance.
3. The claimant's application was refused on 12th January 2005. He appealed. The appeal was listed for hearing on 12th January 2006. The claimant did not attend on that occasion and was not represented. The appeal was dismissed.
4. Paragraph 78 of the Scheme allows an appeal to be heard in the absence of the appellant in certain circumstances, including where he has failed to attend a hearing and he has given no reasonable excuse for his non-attendance, provided that it would not be against the interests of justice to do so.
5. Paragraph 79 to 82 inclusive of the Scheme relate to the rehearing of appeals. Paragraph 79 provides that where an appeal determined in the appellant's absence, he may apply for his appeal to be reheard. This the claimant did. The effect of paragraph 81 is that if there are good reasons for a rehearing then a rehearing should be ordered.
6. The claimant gave his reasons for non-attendance as follows:

"My solicitor (my brother-in-law) had promised to represent me. I have always believed that it would be out of the question for me to represent myself. I get very confused and I still suffer from dysphasia. When I realised my solicitor would not be able to attend the hearing I contacted cicap to explain this and to ask for a postponement. I was told that my request would have been considered by the panel. I believed that it would have been pointless for me to have appeared in person because I am utterly incapable of presenting my case coherently."

7. The claimant then put forward grounds for his rehearing request, arguing that his symptoms were the result of the assault, that his injuries were unlawfully inflicted and that his own criminal conduct and alcohol misuse or abuse should not be held against him.
8. The CICAP Chairman refused the rehearing of the appeal, giving the following reasons for so doing (which I have for convenience numbered):

"[(1)] I find no good reasons for the request to be allowed;

[(2)] I do not accept that there are good reasons for the Applicant not to have been present at the hearing and/or for the Applicant or someone on his behalf not to have made contact with CICAP sooner than late on the previous evening (11 January 2006) to state that his solicitor (his brother-in-law) was out of the country;

[(3)] CICAP had no knowledge until 11 January 2006 of any indication that the Applicant was intending to be represented;

[(4)] valid notice of the hearing date time and place was issued to the Applicant on 15 December 2005, that is 4 weeks before the hearing date, and substantially more than the minimum 21 day notice period that has normally to be given pursuant to paragraph 73 of the Scheme;

[(5)] on 6 January 2006, the Applicant signed and returned to CICAP (received 9 January 2006) a form to say that he would be attending the hearing on the date time and venue stated;

[(6)] if the Applicant had intended to be represented by his brother in law, there is no reason why he or his brother-in-law could not have contacted CICAP promptly after the notice of hearing was issued to seek a postponement at that stage to explain that the brother-in-law was away and was proposing to represent — in fact the brother-in-law was back in the country on 12 January 2006;

[(7)] unavailability of a particular representative is not normally a good reason for a postponement;

[(8)] under paragraph 78(b) of the Scheme, the Panel was entitled to proceed to determine the appeal in the absence of the Applicant;

[(9)] the Panel clearly made a valid decision on the documents and evidence available;

[(10)] in my opinion, there is a real prospect that the Applicant would not attend a rehearing;

[(11)] the Applicant had reasonable opportunity to put forward all points in support of the appeal before the oral hearing took place; all the points and documents disclosed in his letter of 22 February 2006 are points that could and should have been made in advance of the hearing date;

[(12)] a re-hearing would be an unjustified additional expense on CICAP's (i.e. the taxpayers) resources — each appeal costs about £1,900;

[(13)] were there to be a re-hearing, the police officer who attended the oral hearing would have to be invited again — this would be a waste of police resources; further, if the police officer did not attend (and there is no power to compel a witness to attend an oral hearing), the Applicant would potentially gain an unfair advantage which cannot be in the interests of justice;

[(14)] having read the file papers, I consider the prospects of another Panel reaching a decision different to that reached by the Panel on 12 January 2006 are, at best, extremely slight;

[(15)] the fact that the Applicant disagrees with the Panel's decision and seeks to adduce evidence available before 12 January 2006 is not a reason for giving him an opportunity to re-argue the merits of his appeal and have a 'second bite of the cherry' denied to applicants who attend;

[(16)] a re-hearing of this case would inevitably lead to delays in other appeals;

[(17)] overall, it is not in the interests of justice for this appeal to be reheard."

9. The Chairman added:

"Had I thought on reading the papers, the Panel had made an error of law in coming to its decision, resulting in a manifest injustice, I would have considered exercising an inherent discretionary power to set aside the decision and direct that the appeal be re-heard before a differently constituted Panel. I see no evidence of an error in law or manifest injustice and I am therefore not prepared to exercise this inherent discretionary power."

10. The claimant submits that the refusal of a rehearing was perverse and irrational. That, of course, is a very high hurdle. However, the grounds also allege that there was a breach of natural justice, and that is a matter for the court, albeit on a matter such as to whether to grant an adjournment, giving weight to the evaluation of the primary decision-maker.
11. The claimant's case is that what happened on 15th June 1998 outside a public house in Sydenham was that, according to eyewitnesses, he was headbutted at least once. Following the incident he was admitted to Lewisham Hospital accident and emergency unit. There he was diagnosed with a left subdural haematoma and contusions to the frontal regional and left posterior temporal regions. He was aphasic for several weeks and remained dysphasic thereafter. In addition he suffered a substantial personality change following the incident. Between November 1999 and April 2002 he was convicted on seven occasions of criminal offences.
12. In 2001 the claimant applied for compensation for his injuries. The reason for the initial refusal was that there was insufficient evidence to support the claim, so one could not be satisfied as to the full circumstances surrounding the incident, and also that account should be taken of the criminal convictions recorded against him under paragraph 13(e) of the Scheme.
13. The claimant then instructed a solicitor, Mr Dalton, to represent him in connection with the appeal. Mr Dalton drafted and submitted the notice of appeal to the defendant. The notice of appeal provided Mr Dalton's contact details. It contained the following grounds.
14. First, the claimant's injuries, according to the medical evidence, were severe and occurred to two separate parts of the brain. This indicated that the claimant suffered more than one blow, and that the force with which the blows were delivered went beyond what may be considered reasonable force in self-defence. In view of this, the fact that the claimant had no history of violence and the fact that there was no evidence of anybody else suffering injury on that occasion, the conclusion should be that the claimant had suffered injuries as a result of violence.
15. The second ground of appeal was the convictions which occurred after the incident should be disregarded, as they could all be attributable to a personality change that was the direct consequence of the brain injuries that the claimant had sustained.
16. The matter was considered suitable for an oral hearing. According to Mr Dalton, he was, however, never informed of any hearing date. Mr Dalton left for a holiday on 11th December 2005.
17. While Mr Dalton was away, the claimant himself was sent a notice that the appeal was to be heard on 12th January 2006, obviously a substantial part of the intervening period was occupied by the Christmas and New Year period. No notice of the hearing date was apparently sent to Mr Dalton.
18. The claimant contacted the defendant late on the afternoon of 11th January 2006 to explain that his representative, who would be returning to the country on the 12th, would not be able to attend the hearing, as he would only return from holiday the following day and that the claimant would not be able to attend himself.
19. The reasons for the dismissal of his appeal were, first, that there was no evidence to assist the Panel as to how the claimant came by his injuries, and therefore the Panel could not be satisfied that the injuries were directly attributable to a crime of violence. Secondly, that the claimant had a long history of alcohol abuse prior to his injury. The Panel were of the opinion that they could not accept that the convictions all resulted from the injuries sustained by the claimant. Third, the police officer who attended the hearing gave evidence that in the opinion of the police the claimant was extremely drunk at the time of the incident and that he had a long-standing drink problem. While the claimant had no recollection of the incident and could not assist the police, they were satisfied that he had participated in a fight with an unknown person, was headbutted and was injured. The circumstances of the incident are unknown, but by participating the claimant's conduct becomes a factor for consideration.
20. The Panel were of the opinion that the appeal failed under paragraphs 8 and 13 of the Scheme. Paragraph 8 provides that, for the purposes of the Scheme, criminal injury means personal injury "directly attributable to", for present purposes, crime of violence. Paragraph 13 allows an award to be withheld or reduced in various circumstances, including the applicant's conduct and character.
21. The claimant makes the following criticisms of the reasons given for the refusal of a rehearing of his appeal. First reason (3), that the defendant did not know until the day before the appeal hearing that the claimant was going to be represented. The claimant says this is simply wrong. His representative's details are set out — as they are — in the appeal notice and the defendant had been communication — as it had been — with Mr Dalton. This does not necessarily mean that he was going to be represented at the hearing, but it indicated that he might very well be represented at the hearing by Mr Dalton.
22. I see little (if any) force in this reason for refusing a postponement or, a postponement having been refused, refusing a rehearing. If this reason stood on its own, which of course it does not, it would be wholly insufficient.
23. Second reason (4): that valid notice was given of the appeal hearing. The claimant says that the notice was given only to him and not to his representative and that his representative was away, and all indeed of that seems to be the case. I reject, however, this particular complaint. Adequate notice was given. However, it was unfortunate as part of the general picture that notice was not given to his representative.
24. Third, reason (5): the claimant indicated that he would be attending. I see little (if any) force in this reason. The claimant later indicated, albeit at a very late stage, that he would be in difficulty in doing so. Again, if this reason stood on its own, it would be wholly insufficient.
25. Fourth, reason (6): the postponement could and should have been sought at an earlier stage. The claimant takes issue with this reason, but it seems to me to be a sound one but not necessarily a decisive one.
26. Fifth, reason (7): unavailability of a particular representative is not normally a good reason for postponement. The claimant puts his case in this way. This reason ignores the fact that it was not simply unavailability of a particular representative, but unavailability of any representative that was causing difficulties. The claimant made it clear to the defendant that he would be unable to represent himself. It would also be highly unrealistic for a litigant receiving notice on 15th December 2005 for a hearing on take place on 12th January 2006 to arrange alternative representation. That is how the claimant puts it.
27. It seems to me that this claimant could not reasonably have been expected to have represented himself. There is probably little practical difference between him turning up without his representative and his not turning up at all. If he was to avail himself of an oral hearing he needed a representative. The unavailability of his representative for the purpose date seems to me to be at least some reason for a postponement.
28. Sixth, reason (9), the defendant made a valid decision on the available documents; reason (11), the claimant had a reasonable opportunity to put forward his points before the hearing and did so; reason (13), the police officer would have to attend again or might not do so; reason (14), the prospects of another Panel reaching a different decision are at best extremely slight; and reason (15), disagreement with the decision does not entitle the claimant to a second bite of the cherry, denied to applicants who attend. The claimant argues in relation to these reasons that they ignore the fact that the Appeal Panel who heard the case in the claimant's absence did not simply give a decision with which the claimant disagreed, but failed to address any of the arguments in support of the appeal advanced by Mr Dalton. Instead, the Panel simply reiterated the first instance decision.
29. In addition, the grounds as set out by Mr Dalton did not require the officer to attend the appeal hearing. If the Appeal Panel was of the view that Mr Dalton's reasons were incorrect, or did not constitute a sufficient basis for setting aside the first instance decision, the Panel at least owed the claimant a duty to say why.
30. I do not consider that this criticism is justified. On the other hand, the claimant was effectively denied an oral hearing. The evidence of the police officer did not go to the grounds of appeal and in my judgment the grounds of appeal were not hopeless.
31. Seventh, reason (10): there is a real prospect that the claimant would not attend a rehearing. The claimant submits that this is speculative and is not supported by any evidence or any justification. I agree. The point was not so much whether the claimant himself would attend a rehearing, but rather whether Mr Dalton would. There is little (if any) basis for supposing Mr Dalton would not have done so.
32. Ultimately, however, I have to consider the strength of the reasons as a whole, including of course those that are not criticised, and consider whether there is a real possibility that an injustice may have been done to the claimant by the absence of a postponement of the appeal hearing and then the refusal of a further hearing.
33. In my judgment, the claimant did have a reasonable excuse for his non-attendance and he should have been granted a postponement. I cannot say that if he had been granted a hearing there is no real chance that that would have made a difference to the outcome.
34. I therefore order a remission so that the appeal is heard by a differently constituted panel to consider the appeal on the merits. In doing so, like Munby J, I do not want to arouse false hopes. The outcome may very well be the same after a fair hearing, but I cannot be confident that it will necessarily be so.
35. As I have already indicated, I will make an order so far as the claimant's publicly funded costs are concerned.
36. MR SALIS: I am grateful.
37. THE DEPUTY JUDGE: Although no application has been made, I indicate that I would not in any event, the defendant not having appeared at that hearing and in my judgment not having behaved improperly in a flagrant way, make any order for costs against the defendant.
38. MR SALIS: I am grateful.