IN THE UPPER TRIBUNAL Case No. JR/2535/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant’s application for judicial review is dismissed. However, he may make a new application to the First-tier tribunal for the reinstatement of his appeal.
REASONS FOR DECISION
1. This is an application, brought by the claimant with my permission, for judicial review of a decision dated 14 December 2011, whereby the First-tier Tribunal refused to reinstate an appeal in respect of an award of criminal injuries compensation that had been struck out on 9 November 2011.
2. The claimant is a former bus driver who was assaulted on his bus in South-West London on 18 August 2008 by two would-be passengers whom he refused to allow to travel on the bus because they refused to pay their fares. He had appealed to the First-tier Tribunal against a refusal by the Criminal Injuries Compensation Authority to vary on review an award of £1,500 in respect minor disfigurement through facial scarring incurred in the assault. His case was that the award should have taken into account psychological problems that had developed since the assault. A hearing of the appeal took place in the claimant’s absence on 2 February 2011, when it became apparent to the First-tier Tribunal that he was pursuing a claim for damages in civil proceedings against his former employer in respect of the same incident. The First-tier Tribunal adjourned the hearing and directed the claimant to disclose all documents relating to the civil claim or, if no civil claim was being pursued or extant he was to confirm that in writing and he was to comply with the direction within three months. The claimant reacted to the directions with abusive telephone calls to the staff of the First-tier Tribunal. He did not comply with the directions.
3. On 27 July 2011, the First-tier Tribunal directed the claimant to comply with the previous directions within 14 days, failing which his case would be struck out. On 5 August 2011, the First-tier Tribunal received a letter from the claimant saying that he had been in touch with his solicitors about the information and that he would forward it when he got it. On 17 August 2011, the First-tier Tribunal received a letter from the claimant saying that the solicitors were no longer acting for him but, apparently on 23 August 2011, a further letter was received enclosing a letter dated 15 August 2011 from the same solicitors stating that they were instructed to pursue a claim for damages against the claimant’s former employers and against Transport for London (“TfL”) in respect of the relevant incident and four other incidents. There are records of two telephone calls to the First-tier Tribunal in early August, in which the Applicant sought advice about what to do and in one of which, on 2 August 2011, it was recorded that he “explained that he was having difficulty in dealing with all the correspondence relating to his civil claim and the claim for criminal injuries compensation due to his ongoing psychiatric difficulties” and that he was “polite throughout”. There are records of two further telephone calls in the following month. On 13 September 2011, he said he needed more time to comply with the directions but only a few days, and he asked when his case would be listed. On 15 September 2011 he said that he would not be sending any more documents and again asked that his case be listed for hearing. Instead, on 9 November 2011, the case was struck out for non-compliance with the earlier directions. This was followed by two angry and abusive telephone calls from the claimant to the First-tier Tribunal’s staff.
4. On 29 November 2011, the claimant apparently submitted a written request for the reinstatement of his appeal, although a copy of that application is not in the file of documents supplied to the Upper Tribunal by the First-tier Tribunal. The application was refused on the papers on 14 December 2011. In the decision notice, the judge referred to the most important elements of the history and said –
“6. In the circumstances, I am satisfied that, taking into account that the ‘overriding objective’ of Rule 2 is to enable the Tribunal to deal with appeals fairly and justly, I have decided that reinstatement is not appropriate in this case.
7. My reasons for this decision are –
· I do not accept the grounds relied on by the Appellant. The details of his civil claim(s) are highly relevant to this appeal and the Appellant seems determined to keep those details to himself.
· The Appellant despite firm and clear Direction Notices has still failed to comply with the wishes of the Tribunal.
· His abusive dealings with the Tribunal staff give me no confidence that he will cooperate in the future.”
5. The claimant asked for a statement of reasons. The reasons given in the original decision notice could arguably have stood as an adequate statement of reasons but the judge provided further reasons on 14 June 2012 in 24 paragraphs. Paragraphs 1 to 21 set the history out in more detail, paragraphs 22 and 23 were slightly expanded versions of paragraphs 6 and 7 of the original decision notice. Paragraph 24 said –
“24. I did consider whether it would have been appropriate to tell the appellant that his appeal would be reinstated as soon as he sent in the required documents. I took the view that he had made his position very clear (particularly on 15th September) and that it was simply not appropriate to allow this Appellant any further opportunity to waste Tribunal time and resources.”
6. The claimant then applied to the Upper Tribunal for permission to apply for judicial review. On 13 September 2012, I directed an oral hearing, so that the claimant would have an opportunity to explain himself orally. I also directed the disclosure of the relevant documents but set out in more detail what they might be. The claimant first responded by sending a copy of a letter he had sent to his former solicitors asking for the documents and a copy of a claim form and a Notice of Issue. The claim claimed damages from the claimant’s former employer of between £5,000 and £15,000, at least £1,000 being in respect of personal injuries, for an alleged failure to exercise sufficient degree of care in regard to four assaults at work in 2008, including the assault in respect of which the claim for criminal injuries compensation had been made. Subsequently, the claimant also produced an order made by District Judge Nightingale, sitting at Reigate county court on 12 July 2012, in the claim for damages. The decision recorded that no claim form or particulars of claim had ever been served on the defendant and that, previously, the court had, in error, entered judgment in default against the defendant but had then, on 18 May 2012, set that aside and struck out the claim. The district judge dismissed the claimant’s application to set aside the order of 18 May 2012, with costs, and refused permission to appeal.
7. At the hearing before me on 30 November 2012, the claimant explained that he had been referred to the solicitors by his union and that they had obtained a medical report which was unfavourable to him, apparently attributing his psychological difficulties to events in his life after the assaults he had suffered at work. He said that his solicitors told him that that report made his claim “difficult” but that they had said nothing about abandoning the claim. However, they had not done anything and had not even issued proceedings against TfL. He also told me that the medical report had disagreed with the views of consultants treating him.
8. I put to the Applicant that there were reports of him being abusive in telephone conversations and he accepted that he had been. He said that he knew “it was not right to be like that” and that he regretted it because he was himself suffering as a result of abuse from members of the public but that he had been unable to help himself while on the medication that was then being prescribed for him. He said that he was confused and had been unable to cope with either his civil claim or his claim for criminal injuries compensation. He was receiving employment and support allowance (as a member of the support group), disability living allowance and industrial injuries disablement benefit (with, I think, an assessment of 40% disablement but for an incident on 3 March 2008 in which a brick was thrown through a window of the bus and possibly not also for the incident on 18 August 2008). He had 15 sessions of cognitive behaviour therapy booked. He said that he did not like travelling on public transport and he certainly seemed to me to be in a somewhat fragile state. That was consistent with Document T106 in the First-tier Tribunal’s file, which is a letter from the claimant’s doctor dated 21 January 2011, saying that “he suffers from anxiety problem and is not able to use public transport”. There is also reference in the medical evidence to the Applicant’s volatility.
9. Following the hearing, I granted permission to apply for judicial review on 3 December 2012, indicating that I did so largely because the case raised the question whether a person might apply for reinstatement more than once, albeit that it would usually be necessary to extend time on a second or subsequent application. I also indicated that, if the claimant did have a further right to apply for reinstatement, it was difficult to see an error of law in the decision but, if there was no such right, different considerations might apply. In particular, I commented that –
“An error of fact can sometimes amount to an error of law and in the present case it seems clear that the Applicant’s civil claim was in fact not being progressed. It also seems clear that the claimant, who has been acting in person, has mental health problems that may have contributed both to his failure to comply with the directions and to his conduct over the telephone. The judge made no allusion to those problems. Nor does consideration appear to have been given to whether there should have been an oral hearing of the application for reinstatement.”
10. Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) (hereinafter “the Rules”) provides, so far as is relevant –
“8.—(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them.
(2) ….
(3) The Tribunal may strike out the whole or a part of the proceedings if—
(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;
(b) …; or
(c) ….
(4) ….
(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
(6) An application under paragraph (5) must be made in writing and received by the Tribunal within 1 month after the date on which the Tribunal sent notification of the striking out to the appellant.”
Rule 5(3)(a) permits the First-tier Tribunal to extend the time specified in rule 8(6). Rule 2, to which the First-tier Tribunal referred, provides –
“2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.”
11. The Criminal Injuries Compensation Authority is the only party to have addressed the question whether there is a right to make more than one application under rule 8(5) for reinstatement. It submits that, in the absence of any provision in the rules expressly excluding repeated applications and in the light of the wide powers the First-tier Tribunal has to regulate its own procedures under rule 5(1) and its generally wide case-management powers and the requirement in rule 2(2)(b) to seek flexibility in proceedings, a person may make more than one application for reinstatement. However, it also submits out that the power to reinstate an appeal and the power to extend time for applying for a reinstatement are both discretionary and that regard must be had to rule 2 in exercising the powers. It suggests that, in the present case, ensuring that the claimant was able to participate fully in the proceedings, given his psychological difficulties, would be a factor but so too would be the need to deal with the case in a manner proportionate to its importance, complexity and cost and the need to avoid delay in the proceedings. I agree with all those submissions. It is implicit in paragraph 24 of the extended reasons for his decision that the judge of the First-tier Tribunal also considered that a further application for reinstatement could be made if the claimant provided the documents.
12. Plainly an application for reinstatement made on precisely the same grounds as a previous one will usually be given short shrift but, in practice, even litigants in person seldom make repeated applications on exactly the same grounds. On the other hand, where an application has been rejected in ignorance of a material fact or compelling evidence or where there has been a material change of circumstances, a second application may well be justified.
13. This has a bearing on how initial applications for reinstatement are decided. The possibility of a further application being made entitles the First-tier Tribunal to take a more robust approach to initial applications than it might otherwise do and, in particular, may justify them generally being determined on the papers, as is permitted by rule 27(3). This in turn has a bearing on how the Upper Tribunal approaches an application for judicial review.
14. In the present case, the Criminal Injuries Compensation Authority submits that the First-tier Tribunal’s refusal to reinstate the claimant’s appeal was not wrong in law. It is submitted that that was a decision that the First-tier Tribunal was entitled to reach for the reasons it gave, which show that it had regard to the relevant considerations. In relation to the points I raised when granting permission, it is submitted that the decision of the First-tier Tribunal was not based on any error of fact and, although it is conceded that the First-tier Tribunal did not directly allude to the claimant’s mental health, it is not conceded that the First-tier Tribunal did not have it in mind nor that, having taken it into account, it reached a decision that it was not entitled to reach both in deciding not to reinstate the appeal and in making that decision without holding an oral hearing.
15. The claimant himself says that it must have been pretty obvious from the documents in the case that he had psychiatric problems and I proceed on the basis that the Judge was aware of that when he refused to reinstate the appeal. Given that there was a possibility of a further application for reinstatement and given the purpose for which the original direction had been made, I do not consider that the judge erred in not referring to that fact or in making the decision he did. The fact is that paragraph 48(1)(c) of the Criminal Injuries Compensation Scheme 2008 provides that an award will be reduced by the full value of any payment in respect of the same injury which the applicant has received as a result of an order by a civil court for the payment of damages and paragraph 48(3) expressly provides that a claims officer may decline to process an application for criminal injuries compensation until the details of a claim for damages have been provided. The First-tier Tribunal is obviously entitled to take the same approach and in a case like the present it would be surprising if it did not do so. The First-tier Tribunal had no reason to believe that the claimant was completely incapable of conducting the proceedings before it and it is difficult to see how it could have been expected to proceed with the appeal before it until it was given details of the pending civil claim. The claimant’s mental health was therefore of little importance.
16. Whether or not the First-tier Tribunal’s decision was based on an error of fact may depend on what one means by that phrase. It certainly seems to me to have been based on a perfectly reasonable understanding that there were live civil proceedings afoot, whereas it now appears that they were not being actively pursued. But the point does not matter. I am quite satisfied that, on the evidence before it, the First-tier Tribunal did not err in law in refusing to reinstate the appeal and, since the possibility of making another application for reinstatement means that the decision was not irrevocable, this is not a case where it is necessary to consider whether any misunderstanding renders the decision wrong in law. It would, I suggest, have been preferable had it been stated clearly by the First-tier Tribunal that an application for reinstatement would be considered if the documents were produced, in case its assessment of the claimant’s willingness to comply was mistaken, but the failure to state that in the decision notice does not preclude the claimant from making such an application and does not amount to an error of law.
17. I therefore dismiss the application for judicial review.
18. However, I stress that is now open to the claimant to make a further application for reinstatement of his appeal.
19. The Criminal Injuries Compensation Authority is right to suggest that there are reasons why the First-tier Tribunal might decide not to reinstate the claimant’s appeal. However, in Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC), I said –
“13. … When considering whether an appeal should be reinstated …, a Tribunal should have regard to the broad justice of the case, in the light of all the circumstances obtaining at the time the application for reinstatement is being considered.
14. I do not mean to suggest that the Tribunal could not properly have refused to reinstate the Appellant’s appeals in this case. Parties should not gain the impression that they may ignore directions made by the Tribunal with impunity. Where there has been flagrant disobedience by a party, belated compliance or a change of circumstances making compliance irrelevant will not always require a Tribunal to reinstate the appeal. However, a party is entitled to have such late compliance or change of circumstances taken into account ….”
20. Thus the fact that it is now clear that there is no possibility of the claimant receiving compensation from the courts will be relevant. It will also be necessary for the First-tier Tribunal to consider to what extent there is mitigation for the non-compliance with the directions in the light of the claimant’s mental health and the extent of his knowledge about the proceedings and his limited understanding of them. Since it was not claimed that the defendant in the civil proceedings had actually assaulted the claimant, the case would have been complex. I would also suggest that it would be wrong to hold against the claimant any delay while these judicial review proceedings have been under way. Delay may in any event not be a very important issue in this case. It is true that rule 2(2)(e) provides that dealing with a case fairly and justly includes avoiding delay, but it is hard to see any unfairness or injustice arsing from delay itself, as opposed to associated administrative costs, where the person causing the delay is the only person who suffers any real disadvantage as a result of the delay. It is not obvious to me that, in the present case, anyone other than the claimant has been placed at any disadvantage as a result of the delay caused by his non-compliance with the First-tier Tribunal’s directions. Also of relevance will be the amount likely to be at stake in the appeal. However, all these matters will be for the First-tier Tribunal to consider
21. Finally, I wish to repeat some observations I made when I granted permission to apply for judicial review, upon which none of the parties has commented.
22. The full statement of reasons was sent to the Applicant under the cover of a letter from the “legal advisor”. The term “legal advisor” seems to be a misnomer, possibly with an historical explanation, since she was a judge rather than an advisor. I remain unsure why it was felt appropriate or necessary for a statement of reasons to be sent to the Applicant by a judge personally, rather than by an administrator. The actual decisions and direction notices in this case were sent by administrators.
23. More importantly, the judge wrote –
“The Decision in your case was made in private pursuant to Rule 30(2) of the Tribunal Rules. As a consequence this written statement of reasons is confidential to the parties and those advising them. The First-tier Tribunal is not a Court of Record; any dissemination of these reasons to a third party is a contempt of court.”
24. In fact the decision was not made at a hearing held in private under rule 30(2) of the Rules because it was made without any hearing at all – “hearing” is defined in rule 1(3) as “an oral hearing” – as was permitted by rule 27(3). But even if that still amounts to the decision being made in private, it is clear that dissemination of the reasons for the decision is nonetheless not a contempt of court in the absence of any order under rule 14(1) of the Rules prohibiting the disclosure or publication of information relating to the proceedings – which would have been hard to justify in this case. The judge’s statement to the contrary is wholly inconsistent with section 12(1) of the Administration of Justice Act 1960.
25. Section 12 provides –
“12.—(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a) where the proceedings—
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or a county court;
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.
(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”
26. Subsection (3) makes it plain that subsections (1) and (2) apply to tribunals and it does not draw any distinction between tribunals that are courts of record and those that are not. Indeed, the First-tier Tribunal is expressly mentioned in section 12(1)(b) and is therefore plainly within the general scope of section 12. Section 12(1)(e) applies where there is an order under rule 14(1). Orders under rule 14(1) should be carefully drawn and it would, I suggest, rarely be appropriate to make an order that has the effect that an appellant before the First-tier Tribunal in a criminal injuries compensation case is prohibited from talking or writing about his or her own case.