High Court of Ireland Decisions

 


THE HIGH COURT

Judicial Review

Record No 830 JR/2002

BETWEEN

ANGELA TOMLINSON

Applicant

and

CRIMINAL INJURIES COMPENSATION TRIBUNAL

Respondent

JUDGMENT of Mr Justice Kelly delivered on the 3^rd day of March, 2004

Introduction

Francis Tomlinson (the deceased) died on the 20^th April, 1997. His death arose out of an assault in a Dublin hotel. He was survived by the applicant who is his widow and their three sons.

The deceased was a visitor to Dublin at the time of his death. He and his family were residents of Bishops Stortford, Hertfordshire, England.

In August, 1997 the applicant applied to the respondent seeking to be compensated in respect of the death of the deceased. As is usual, her application was dealt with on paper and without any oral hearing by a single member of the respondent. That member was satisfied that there was sufficient evidence to find that the application fell within the scheme under which the respondent operates. The member then went on to make an award of special damages under three headings. The first was in respect of actuarial fees which he fixed at €5,176.06. The second was in respect of loss of earnings for which he awarded £431,000 sterling. The third was in respect of mental distress assessed at €25,394.96.

The applicant is dissatisfied with the award made in respect of loss of earnings. Her complaint arises from the fact that although the single member of the respondent assessed her loss of earnings at £990,000 sterling and also allowed her £33,000 sterling in respect of the loss of a company car, he deducted from those sums £592,000 sterling because of a death in service benefit which was paid to the applicant. In making that deduction the applicant contends that the respondent was wrong and acted ultra vires.

On the 24^th September, 2002 the applicant was notified of the respondent's decision and she secured leave from O'Higgins J. to commence these proceedings on the 16^th December, 2002.

The respondent contests the applicant's entitlement to the order which she seeks on the merits but in addition argues that regardless of merits this court ought to refuse to entertain the application because the applicant has failed to exhaust alternative remedies.

The Scheme

The respondent operates pursuant to a scheme of compensation for personal injuries criminally inflicted (the scheme). It is an extra statutory scheme. In its present form it was laid by the Minister for Justice before both houses of the national parliament in March, 1986.

Paragraph 17 of the scheme provides that it is to be administered by the respondent. The procedures of the respondent are dealt with from paragraph 20 onwards. Paragraph 25 provides that a decision by the tribunal on a claim may be taken by one of its duly authorised officers where the amount does not exceed £250. If the claim is for a greater sum or where a claimant is not satisfied with a decision by that officer the decision is normally taken by one member of the respondent. The respondent has a discretion to hear any claim at a hearing before three members of it. A person who is dissatisfied with a decision given by one member may have his claim heard by a panel of three members. In such case the member who gave the initial decision is not to be one of the three members of the respondent present at the hearing. Paragraph 25 goes on to provide that apart from an appeal by an applicant against a decision of a duly authorised officer or against a decision of one member there will be no appeal against a decision of the respondent.

Paragraph 26 makes it clear that at a hearing of the respondent an applicant is obliged to present his case and in so doing is entitled to call, examine and cross-examine witnesses. The onus of proof of a claim lies on an applicant. A member of the respondent's staff is entitled to make submissions to the respondent on the case and is also entitled to call, examine and cross-examine witnesses. An applicant is entitled to be accompanied by his legal adviser or another person at such a hearing but the respondent is not liable for the costs of such representation.

The respondent is obliged to apply the civil standard of proof in determining any claim.

Paragraph 1 of the scheme provides that the respondent may pay ex gratia compensation in accordance with the scheme in respect of personal injury where the injury is directly attributable to a crime of violence, or to circumstances arising from inter alia the action of the victim in assisting or attempting to assist the prevention of crime in a public place or the saving of human life.

Paragraph 2 of the scheme provides that the respondent is to be entirely responsible for deciding in any particular case whether compensation is payable under the scheme and if so the amount. It expressly provides that there is to be no appeal against or review of a final decision of the tribunal.

Paragraph 6 of the scheme provides that subject to the limitations and restrictions contained elsewhere in it, the compensation to be awarded is to be on the basis of damages awarded under the Civil Liability Acts except that compensation is not to be payable for inter alios pain and suffering, loss or diminution of expectation of life or exemplary, vindictive or aggravated damages.

The only other provision of the scheme to which I need make reference is that which has been identified as possibly justifying the deduction which was made in the present case. It is paragraph 5. It provides as follows:-

"If injury is inflicted in the circumstances set out in the scheme and any person would be entitled to claim compensation (whether statutory or non-statutory) otherwise than under the scheme for the injury, he will not be prohibited from also claiming compensation under the scheme but the tribunal will decide the claim on the basis that no payment under the scheme should result in compensation being duplicated and may accordingly decide either to make no award or to make a reduced award and may, moreover, decide that an award will be subject to conditions as to its repayment in whole or in part in the event of compensation being subsequently received from another source".

The Respondent's Award

The award made by the single member does not set out the legal basis upon which the deduction of £592,000 sterling was made. It is agreed however that if there was justification for such a deduction it arose under paragraph 5 of the scheme which I have already set out.

The Evidence before the Respondent

Prior to his death the deceased was employed by Nomura Asset Management UK Limited. It maintained a pension and life assurance scheme on behalf of its employees. The applicant received a lump sum payment by way of death in service benefit of £413,200 sterling. Documentary evidence of these facts in the form of a letter from that company dated the 3^rd November, 1997 was put before the respondent.

The applicant retained a firm of consulting actuaries who prepared a report dated the 25^th July, 2001 which was placed before the respondent. The respondent also engaged a firm of consulting actuaries who prepared a report dated the 20^th December, 2001. In the course of the actuarial report commissioned by the respondent it is pointed out that if the benefit paid on the death of the deceased "is deducted the plaintiff's loss would be reduced by approximately £592,000 sterling which includes interest at 8% per annum from the date of death up to the present time".

In the course of the award made by the respondent, having assessed the relevant figure for loss of earnings (£990,000 sterling) and the allowance for loss of the company car (£33,000 sterling) the single member went on to say "From these sums should be deducted a sum of the benefits paid on the death of Mr Tomlinson as per the report of Joseph G Byrne & Sons, Actuaries ...the firm commissioned by the respondent) £592,000".

There was also of course before the respondent the application form from the applicant together with relevant death, marriage and birth certificates.

Why No Appeal?

No doubt the applicant was disappointed at the deduction which the single member made from the award. It seems clear that she was also advised that such deduction was unjustified in law. She had a right of appeal pursuant to paragraph 25 of the scheme to the respondent by way of an oral hearing to be conducted before three members of it. There a full opportunity would be provided to her to adduce evidence and make submissions. She chose not to do so.

The reason for so deciding was explained by counsel at the hearing. He indicated that the decision of the single member to the effect that the applicant's case fell with the scheme conferred a benefit on her. If the right of appeal provided for under paragraph 25 were to be availed of there was a risk that the respondent might take the view that on the evidence the case did not fall within the scheme. He said therefore that he was entitled to bring the present proceedings so as to attack that part of the award which was considered wrong, whilst maintaining the benefit of the determination made in favour of the applicant. It is said that the alternative remedy provided under the scheme is not adequate because by availing herself of it the applicant might jeopardise her entitlement to receive compensation. It is argued that there was a manifest error on the part of the respondent and that it should be remedied by judicial review rather than by appeal.

It is not suggested that in its behaviour to date the respondent has been in any way unfair in its procedures or lacking in its adherence to the principles of natural or constitutional justice. Neither is it suggested that there is any risk of such occurring in the event of the right of appeal being exercised.

The respondent in addition to pointing out that this is not a case where an allegation of unfair procedures or lack of natural justice has any application, points out that as yet there is no final decision of the respondent in being. It points to the wording of the scheme as being indicative of an intention on the part of its drafters that the scheme be self contained. It postulates only a limited use of the courts. It also points to case law on the topic which it suggests demonstrates a marked reluctance of the courts to intervene, particularly before a final determination of the respondent has been given.

In answer to a question which I put to counsel for the respondent and which he was able to answer following consultation with the registrar of the respondent, there does not appear to be a single instance where this court granted judicial review in the form sought save where a final determination of the tribunal had been made.

Judicial Review

The scheme sets out the procedure for dealing with an application. In a case such as the present it provides a two tier mechanism. A party dissatisfied with a determination of a single member may appeal to three members. That right of appeal could have been exercised here and would have given rise to a final determination of the respondent.

In my opinion the scheme provides a self contained administrative quasi-judicial procedure. Paragraph 2 of the scheme makes it clear that there is to be no appeal against or review of a final decision of the tribunal.

Even wording of such clarity does not of course exclude the judicial review jurisdiction of this court in an appropriate case. That has been successfully invoked in a series of cases going back to the State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51 and the cases which followed it such as Hill v Criminal Injuries Compensation Tribunal [1990] ILRM 36 and Gavin v Criminal Injuries Compensation Tribunal [1997] 1 IR 132. It is interesting to note that in all of those cases however, recourse was had to this court only in respect of a final decision of the respondent as contemplated in paragraph 25 of the scheme.

In the case of Garvan v Criminal Injuries Compensation Tribunal (Supreme Court unreported 20^th July 1993) judicial review was sought in respect of a decision reached by a single member of the tribunal. Unlike the present case the allegation made was that the single member of the tribunal had arrived at a determination in a manner offensive to natural justice because he did not seek statements from witnesses.

Having set out the facts and the complaints made Finlay C.J. with whom the other four members of the court agreed went on to say

"I would accept as a general contention that having regard to the informal nature of this administrative process and the administrative tribunal that is there and the specific method by which it is dealt with, that there should be very few circumstances under which the court should intervene by way of judicial review except to correct a final decision from the tribunal such as occurred in the Creedon case in this court. That was a decision by the tribunal which was reviewed by the court on certain grounds."

That provides authority for the proposition that this court should be very slow indeed to intervene by way of judicial review except to correct a final decision made by the respondent. No final decision has been given in this case.

It is I think instructive to see the course which was adopted by the Supreme Court in Garvan's case. The court took the view that, exceptionally, it should intervene but in a particular way. Because of delays which had been encountered in making the decision by the single member and the fact that an appeal to three members of the tribunal would take a further two years, the court granted a mandamus directing the respondent to provide a hearing by a three person tribunal without delay. In other words the Supreme Court intervened only to ensure that the process envisaged under the scheme should be completed by the respondent in a timeous fashion.

I also note that the primary relief which was sought in Garvan's case was an order of certiorari to quash the determination made by the respondent tribunal. That relief was refused in the High Court and was not granted by the Supreme Court on appeal.

Having regard to the observations made by the full Supreme Court in Garvan's case and the course which was adopted I am of the view that the entitlement of this court to intervene by way of judicial review before the process contemplated by the scheme has been exhausted is very limited indeed. There may well be cases where such would be justified if there was a failure to conform to principles of fairness and natural justice. (An example of such an intervention is to be found in my own decision in Stefan v Refugee Commissioner upheld on appeal by the Supreme Court and reported at 2001 4 [I.R.] 203). That is not the case here. Such an allegation was made in Garvan's case but even there the Supreme Court was not prepared to grant certiorari but merely made the order which I have already alluded to.

The approach of the Supreme Court in Garvan's case appears to be consistent with the observations made by Henchy J. in State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 where he said

"Where parliament has provided a self-contained administrative and quasi judicial scheme, postulating only a limited use of the courts, certiorari should not issue when, as in the instant case, use of the statutory procedure for the correction of error was adequate (and, indeed, more suitable) to meet the complaints for which the application for certiorari is grounded".

In my view that is the position here and this court should not intervene before the process envisaged under the scheme has been exhausted.

There is no time limit provided for in the scheme for the bringing of an appeal against a determination of a single member so the applicant is not prejudiced in that regard. Furthermore it was intimated by counsel that a speedy hearing of such an appeal would be provided.

I am not persuaded by the argument which is made on behalf of the applicant that the exercise by her of her right of appeal is in some way unfair or unjust. Either her case falls within the scheme or it does not. The single member has concluded that it does. If on appeal a different view is taken and that view is wrong in law she is not without remedy before this court. I am not prepared to assume that the respondent will misdirect itself and wrongly hold that the applicant falls outside the terms of the scheme if in fact she does not.

A further factor militates against this court intervening at this stage. There are no reasons given as to why the single member made the deduction in question. The parties have assumed that it was by reference to the provisions of paragraph 5 of the scheme. For the proper exercise of its judicial review jurisdiction this court ought to know the reasons by which the tribunal came to its determination. As was said by Finlay C.J. in Creedon's case at p.55

"Once the courts have a jurisdiction and if that jurisdiction is invoked, an obligation to inquire into and, if necessary, correct the decisions and activities of a tribunal of this description, it would appear necessary for the proper carrying out of that jurisdiction that the court should be able to ascertain the reasons by which the tribunal came to its determination".

If the applicant exercises her right of appeal and is unsuccessful the respondent will have to furnish her with sufficient reasons to enable her to know whether or not she should challenge the determination made by way of judicial review or not.

In these circumstances I have come to the conclusion that this is not an appropriate case in which the court should interpose itself by way of judicial review before the mechanism contemplated in the scheme has been exhausted.

My normal practice in delivering a reserved judgment is to deal with all of the issues argued even though some of them may fall to be dealt with on an obiter basis. In the present case however, I think it would be quite wrong to express any view on the substantive arguments and the construction to be given to paragraph 5 of the scheme in the light of the circumstances prevailing. To express such a view would effectively decide an issue which is the responsibility of the respondent. That is the task envisaged for it under paragraph 25 of the scheme. It is not the function of this court to deprive it of so doing.

Conclusion

In the circumstances judicial review will be refused and the application dismissed.