H v First-tier Tribunal and CICA (Criminal Injuries Compensation : other) [2014] UKUT 338 (AAC) (31 March 2014)

 

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPLICATION FOR COSTS OF AN APPLICATION FOR JUDICIAL REVIEW

 

Decision

 

1. This application for costs does not succeed. There is to be no order for costs in respect of the application for judicial review brought by the applicant claimant for criminal injuries compensation and decided by the Upper Tribunal on 14^th August 2013 under file reference JR/1749/2012.

 

The 2008 Scheme

 

2. The original claim for an award was made under the Criminal Injuries Compensation Scheme 2008 (“the 2008 scheme” or “the scheme”), paragraph 18 of which provides that an application for compensation must be made on the appropriate form as soon as possible after the relevant incident and must be received by the Authority within two years of the date of the incident. The Criminal Injuries Compensation Authority (“the Authority” or “CICA”) (or, on appeal, the tribunal) may waive this time limit only when it considers that

 

(a)    it is practicable for the application to be considered and

(b)   in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.

 

Background and Procedure

 

3. The applicant is a woman who was subjected to a serious sexual assault in September 2006 (wrongly referred to in paragraph 11 of the substantive Upper Tribunal decision as 2008). She stated that she did not report the matter to the police immediately because her assailant knew where she lived and her boyfriend was away from home a lot and then their relationship broke down and she was frightened. She said that:

 

“Immediately after the incident I was in shock. It just didn’t feel real. I felt sick and disgusted about what had happened, and utterly violated. At some deep level I felt extremely ashamed that I had allowed someone who was a predator into my own home. I felt I couldn’t report what had happened to the police. Looking back on it I wasn’t thinking rationally at all, but was in a state of shock and confusion” (paragraph 11 of the applicant’s statement of 24^th May 2012).

 

4. In March 2008 the applicant heard that her assailant was in prison in connection with other matters:

 

“This revelation had a huge impact on me; knowing that he was off the streets was a huge relief for me and for the first time I felt safe. It was the trigger point for me reporting the attack to the police, and I felt convicted to do so. It was like a light bulb being turned on” (paragraph 21).

 

5. The applicant reported the matter to the police on 7^th March 2008 and gave a number of statements. A man was arrested on 26^th June 2008 and the applicant picked him out at an identity procedure on 18^th July 2008. When questioned, he denied the offence and ever having been to the applicant’s home but on 28^th August 2008 he was charged with the relevant sexual offence and on 4^th March 2009 his trial commenced at the Crown Court. The matter was prosecuted by the Crown Prosecution Service (CPS). He pleaded not guilty. The applicant stated that it was only when she attended at the Crown Court to give evidence that a court witness liaison officer told her about the existence of the criminal injuries compensation scheme and that she had not previously known of its existence. This was about five months after the expiry of the two year claim period.

 

6. In circumstances which I explained in the substantive decision the prosecution decided to discontinue the prosecution. The jury was discharged and the judge recorded a verdict of not guilty. It later became clear that the police had not taken evidence from some witnesses. In June 2009 the applicant instructed solicitors with a view to seeking a retrial and on 30^th June 2009 the High Court gave her permission to apply for judicial review of the decision by the CPS to discontinue the prosecution. The matter was eventually settled on 25^th June 2010. The CPS undertook to carry out various procedural reforms and to review the conduct of those who had handled the prosecution of Mr D. It also agreed to pay the applicant’s costs and £16,000 compensation.

 

7. On 14^th February 2011 the applicant made a claim for compensation under the 2008 scheme. This was well over two years after the end of the prescribed two year period for making a claim, nearly three years after she had reported the matter to the police, two years after she says that she had learned of the existence of the scheme, and 18 months after she commenced action against the CPS. She put the delay down to continuing severe trauma caused by the incident itself and then the collapse of the criminal trial. On 16^th February 2011 the Authority refused to make an award on the basis of the two year time limit. On 13^th August 2011, in a review decision, the Authority maintained its refusal to make an award of compensation.

 

8. On 9^th November 2011 the applicant appealed to the First-tier Tribunal against the decision of the Authority. The First-tier Tribunal exercised its power under its procedural rules to consider the appeal without an oral hearing and on 28^th February 2012 the First-tier Tribunal upheld the decision of the Authority.

 

9. On 25^th May 2012 the applicant applied to the Upper Tribunal for permission to apply for judicial review of the decision of the First-tier Tribunal. On 31^st October 2012 I granted permission to proceed in the following terms: “The grounds of the application are reasonably arguable and I am also concerned at the denial of an oral hearing before the First-tier Tribunal”. On 11^th January 2013 I directed that there be an oral hearing of the substantive application, and this took place on 18^th June 2013.

 

10. The oral hearing of the application for judicial review took place before me in London on 18^th June 2013. The applicant attended in person and was represented by Anthony Metzer QC, instructed by Hodge Jones and Allen LLP solicitors. The Authority, which is the interested party, was represented by Ben Collins of counsel, instructed by the Treasury Solicitor. The First-tier Tribunal is the respondent but had, quite properly, taken no part in the proceedings. The Authority opposed the application and supported the decision of the First-tier Tribunal.

 

11. Pursuant to the judicial review jurisdiction of the Upper Tribunal and in accordance with the provisions of sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007 I made a quashing order in respect of the decision of the First-tier Tribunal (Social Entitlement Chamber) to dismiss the appeal against the decision of the Authority not to make an award. I referred the matter to the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. I directed that the panel hold an oral hearing of this appeal at which the claimant be given a proper opportunity to attend and give and call evidence. I also directed that the panel consider the appeal on the basis that it was practicable for the application to be considered (as previously decided in the decision of the First-tier Tribunal that was the subject of the judicial review proceedings), but in other respects should make its own findings of fact and decision irrespective of the views of any other judge or member who had previously considered the matter.

 

12. I explained my decision as follows:

 

“31. I can only substitute my own decision for that of the quashed decision where without the relevant error(s) of law “there would have been only one decision that the … tribunal could have reached” (Tribunals, Courts and Enforcement Act 2007 section 17(1)(b) and 17(2)(c)). In the present case it is possible that even after holding an oral hearing and taking account of all of the evidence and understanding it all correctly, the First-tier Tribunal could properly conclude that, in the particular circumstances of the case, it would have been reasonable to expect the applicant to have made an application within the two-year period.

 

32. However, because of the failure to offer the claimant the opportunity of an oral hearing, and to explain why this was not being done, and because of the other matters referred to above, I make the order that I have indicated ...”

 

13. The matter was due to be heard afresh by the First-tier Tribunal on 19^th February 2014 but shortly before that date the Authority agreed that the two year time limit for making the original claim should have been waived. Apparently this has been agreed by the First-tier Tribunal.

 

14. On 22^nd August 2013 the applicant’s solicitors submitted an application for costs in her favour and against both the First-tier Tribunal and the interested party. The estimated amount was in excess of £25,000. This application led to further written submissions, the last of which was not received by the Upper Tribunal until 14^th February 2014. It is unfortunate that this has all taken so long. The applicant’s solicitors have written (letter of 13^th February 2014) that “We consider that the First-tier Tribunal and CICA’s late concession is evidence of their unreasonable behaviour in refusing our client’s initial appeal and is relevant to our client’s costs application”. The same letter then went on to assume that a decision had already been made to refuse costs and asked that it be reconsidered in light of the new position. In fact, no decision on the costs application had been made at that stage.

 

The Upper Tribunal Costs Jurisdiction

 

15. Section 29 of the Tribunal, Courts and Enforcement Act 2007 provides as follows:

 

29(1) The costs of and incidental to –

(a)    all proceedings in the First-tier Tribunal, and

(b)   all proceedings in the Upper Tribunal,

shall be in the discretion of the Tribunal in which the proceedings take place

 

(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.

 

(3) Subsections (1) and (2) shall have effect subject to Tribunal Procedure Rules.

 

The section also makes provision for wasted costs orders, subject to Tribunal Procedure Rules.

 

16. Rule 10 of The Tribunal Procedure (Upper Tribunal) Rules 2008 sets out specific circumstances in which the Upper Tribunal may make an order for costs. In particular, rule 10(1)(b) provides that the Upper Tribunal may not make an order for costs in proceedings transferred or referred by, or on appeal from, another tribunal except “to the extent and in the circumstances that the other tribunal had the power to make an order for costs”. An application for judicial review is not an appeal from another tribunal, although it should be noted that the Social Entitlement Chamber of the First-tier Tribunal may not make any order in respect of costs (The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 rule 10)

 

17. Rule 10(3) of The Tribunal Procedure (Upper Tribunal) Rules 2008 provides that:

 

10(3) In other proceedings, the Upper Tribunal may not make a order for costs or expenses except –

(a)    in judicial review proceedings; … [or]

(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings

 

18. On the face of it this provides a discretionary power in the Upper Tribunal to make an order for costs in judicial review proceedings, subject to section 29(1) of the 2007 Act which prohibits the Upper Tribunal from awarding costs of proceedings in the First-tier Tribunal.

 

19. The way in which the Upper Tribunal should exercise its costs jurisdiction in Judicial Review applications was considered by a cross-chamber three judge panel of the Upper Tribunal, presided over by Lord Justice Sullivan, the Senior President of Tribunals, in R(LR) v First-tier Tribunal and Hertfordshire County Council (Costs) [2013] UKUT 294 (AAC), JR 3126/2011.

 

20. In that case the Upper Tribunal held that although the terms of rule 10(3) do not preclude the Upper Tribunal from making an order for costs in judicial review proceedings, they do not require it. In principle an order for costs could be made “on a judicial review emanating from a tribunal where the award of costs was precluded” but “we do not consider that it follows that the intention of the rule makers was to require costs-shifting in every category of judicial review case” (paragraph 25).

 

21. The Upper Tribunal considered (following a line of authorities all pointing in the same direction) that “it is right to be wary” of reading concepts from the Civil Procedure Rules (CPR) into tribunal procedure rules (paragraph 30). I note that the general rule under rule 44 of the Civil Procedure Rules is that the unsuccessful party will be ordered to pay the costs of the successful party but the court may make a different order. The court is to have regard to all of the circumstances including the conduct of all of the parties. For example, costs will not be awarded against a tribunal that has played no part in the proceedings: R v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207).

 

22. As regards costs in judicial review “Parliament itself has given a number of clear indications that the Upper Tribunal was not to be constrained to follow the practice of the High Court (paragraph 31)”. The Upper Tribunal concluded (in paragraph 34) that in relation to categories of judicial review where it is the First-tier Tribunal whose decision is being challenged rather than an initial decision maker, and where the case is of a category where the Upper Tribunal has exclusive jurisdiction, as a general rule the Upper Tribunal should not apply its discretion to make an award of costs where the tribunal would have had no power to do so.

 

The Arguments and Conclusions

 

23. The applicant’s solicitors argued that the Upper Tribunal still has a general discretion as to costs in judicial review proceedings (which I accept), that the present case is distinguishable from Hertfordshire County Council because that case involved the Health and Social Care Chamber of the First-tier Tribunal and the present case involves the Social Entitlement Chamber, and because the circumstances of the present case are exceptional.

 

24. In a comment on the application for costs, the First-tier Tribunal referred to the decision in R v HM Deputy Coroner for Birmingham and pointed out (accurately and properly) that it had played no part in the judicial review proceedings. The Authority relied on Hertfordshire County Council and argued that there is no relevant distinction between the situation in that case and the situation in the present case.

 

25. As a matter of strict law I am not bound by the decision in Hertfordshire County Council but I agree with the analysis and approach of the panel in that decision. Further, both that case snd the present case involved an unappealable decision by the First-tier Tribunal where the appellant to that tribunal was an individual or family and the appeal was against a public body. I see no relevant basis for distinguishing between the two cases in relation to the approach that should be taken on an application for costs.

 

26. Of course the circumstances of the present case are very important to the applicant – but that is true of virtually all cases that come before the Upper Tribunal and there is no reason to treat this applicant’s circumstances differently from those of other applicants in criminal injuries cases or (as in the Hertfordshire County Council case) in disputes about the appropriate schooling of children with special needs.

 

27. That leaves the issue of whether any party “has acted unreasonably in bringing, defending or conducting the proceedings”. Clearly this cannot be invoked against the First-tier Tribunal itself, which did none of those things. All that can be said against CICA is that it took a decision from which it has subsequently resiled. Although it opposed the application for judicial review it did so in a restrained and appropriate way and at a time when the Upper Tribunal jurisprudence on waiving the time limit for making a claim was still developing (as it still is, with a three judge panel having been established to consider the matter) and when the correct approach to the circumstances in which the First-tier Tribunal should hold an oral hearing was only just being decided.

 

28. For the above reasons this application for an order for costs does not succeed.

 

 

H. Levenson

Judge of the Upper Tribunal

31^st March 2014