Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case No.  JR/1040/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before Upper Tribunal Judge Wikeley

 

 

Attendances:

 

The Applicant: was represented by Mr Robert Moretto of Counsel, instructed by the Treasury Solicitor

The Respondent neither appeared nor was represented.

 

The Interested Party was represented by Ms Rachel Galloway of Counsel, instructed by Ralli, Solicitors

 

 

DECISION

 

(1) I give permission on the application by the Criminal Injuries Compensation Authority for permission to apply for judicial review of the First-tier Tribunal’s decision.

 

(2) I dismiss the application by the Criminal Injuries Compensation Authority for judicial review of the First-tier Tribunal’s decision that the Interested Party is eligible for a full award under the Scheme as having suffered a crime of violence.

 

(3) However, I grant the application for judicial review of the First-tier Tribunal’s decision insofar as the Tribunal made certain consequential directions which were in error of law. Those consequential directions under Parts B and C of its decision notice are quashed with the exception of the order for an interim award under Direction B1. The matter is remitted to the Criminal Injuries Compensation Authority for an assessment of compensation.

 

This decision is made under sections 15-18 of the Tribunals, Courts and Enforcement Act 2007 and Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

 

REASONS FOR DECISION

 

The background to this application for permission to apply for judicial review

1. Mr Doyle was attacked by a dog belonging to Mr O’Leary, a neighbour. The Criminal Injuries Compensation Authority (CICA) refused to make Mr Doyle an award under the Criminal Injuries Compensation Scheme 2008. In its review decision, the CICA concluded that the incident was not a “crime of violence” within the 2008 Scheme, pointing out that the police had not treated the matter as criminal. The First-tier Tribunal (“the Tribunal”), after a hearing on 13 November 2013, allowed Mr Doyle’s appeal against the review decision by the CICA.

Summary of my decision on this application for permission to apply for judicial review

2. This is now an application by the CICA for permission to apply for judicial review in respect of that Tribunal’s decision. My conclusions are three-fold. First, there is enough in the application to justify giving permission to apply for judicial review. Second, I dismiss the application for judicial review itself, at least as regards the Tribunal’s substantive decision on eligibility that Mr Doyle was the victim of a “crime of violence”. It follows that the Tribunal’s decision stands, so far as that is concerned. Third, however, the Tribunal erred in law in respect of its consequential directions and to that extent only I grant the application for judicial review and quash those directions (with the single exception of the order for an interim award). The matter is accordingly now remitted to the CICA for a decision on compensation.

 

The Upper Tribunal oral hearing

3. I held an oral hearing in Manchester on 5 November 2014 of this application for permission to apply for judicial review. The CICA was represented by Mr Robert Moretto of Counsel. The Respondent, the Tribunal, took no part in these proceedings, as is both customary and proper. Mr Doyle, technically the Interested Party, was represented by Ms Rachel Galloway of Counsel. I am grateful to both counsel for the clear and careful way that they made their oral and written submissions. This case was heard alongside the applications for judicial review in CICA v FTT and FC and CC (JR/1202/2014 and JR/1209/2014), which raised similar issues.

 

4. I had indicated in earlier case management directions that I proposed to deal with the present application on a “rolled up” basis, i.e. to hold a single hearing to consider both whether to give permission and, if appropriate, whether to grant the substantive application for judicial review. The parties agreed to that procedure being adopted. The fact that the hearing of this matter took the best part of a morning is evidence enough that there was sufficient merit in the CICA’s application at least to give permission to apply for judicial review. I rule accordingly and go on to consider the substantive issue of whether to grant the application for judicial review itself.

 

The incident itself in outline

5. On 11 May 2008 Mr Doyle suffered serious leg injuries as a result of an incident involving a large bull mastiff dog owned by his then next door neighbour, Mr O’Leary. The incident took place in an area to the rear of their respective properties. There was no doubt but that the dog attacked Mr Doyle. However, there was conflicting evidence as to where precisely the incident took place and whether or not the dog was tethered at the time. The Tribunal heard evidence from a police officer, from Mr Doyle himself and from several other neighbours. It did not hear direct evidence from Mr O’Leary.

 

The First-tier Tribunal’s decision

6. The Tribunal’s decision was that Mr Doyle was the victim of a “crime of violence” and was entitled to a full award of compensation. It issued short form reasons on the day in the following terms:

 

“We heard evidence from the Appellant, Mr Doyle; and from his former neighbours Mrs Woods, Mr Howard and Miss Cunningham; and from PC Owens, the officer in the case. On the basis of the evidence we decided that, although the dog was not known to the police or other authorities, it was more generally known to be vicious, not least to the owner himself, Mr O’Leary. There was a conflict of evidence about the precise location of the attack on Mr Doyle, and whether or not the dog was tethered to a tree. We accepted the evidence of Mrs Woods that she saw the dog attacking Mr Doyle outside his own back gate. This was corroborated by Miss Cunningham who said that there was a significant amount of blood (which she cleared up) at Mr Doyle’s gate but nowhere else. We decided that the dog was out of control, and recklessly so, at the time of the attack on Mr Doyle, and that this was a crime of violence which should lead to a full award following consideration of medical records and any necessary reports.”

 

7. The CICA then applied for a full statement of reasons, which the Tribunal duly issued. This was a comprehensive document, split into several sections, including a summary of the background (paragraphs [1]-[5]), reference to the relevant paragraphs of the Scheme ([6]), the issues before the Tribunal ([7]) and a lengthy discussion of the evidence ([8]-[20]). The Tribunal then reviewed the parties’ submissions ([21]-[25]) before making the following findings of fact:

 

“26. Having considered all the evidence, the Panel made the following findings of fact:-

·         The Appellant, Mr Doyle, was attacked by a dog, owned by Mr O’Leary on the afternoon of 11 May 2008 in an alleyway to the rear of their properties;

·         The alleyway was open to the public;

·         Mr O’Leary warned Mr Doyle not to approach too closely;

·         The attack took place immediately outside Mr Doyle’s back gate, some 30 feet from Mr O’Leary’s back gate;

·         At the time of the attack the dog was out of the effective control of its owner, Mr O’Leary – either because it was untethered, or because the lead or tether was inadequate;

·         That lack of control by Mr O’Leary amounted to recklessness, not least because he was aware of the dog’s propensity for viciousness.”

 

8. Accordingly, the Tribunal’s decision was that Mr Doyle was the victim of a crime of violence for the purposes of the 2008 Scheme ([27]). The full statement of reasons concluded with the following passage, headed ‘Reasons’:

 

“28. We set out in paragraphs 17 to 20 above our assessment of the evidence that was in conflict. In summary we preferred the evidence of the Appellant and his neighbours to that of the police officer over the precise location of the attack. We concluded that the attack took place at Mr Doyle’s back gate. We also decided that the issues of whether or not the dog was tethered, and whether or not a warning was given, were of secondary importance. The dog should not have been allowed to attack Mr Doyle at his own back gate, and in allowing that to happen its owner Mr O’Leary was reckless. Mr O’Leary should have foreseen that some physical harm to Mr Doyle might result.

 

29. We decided that this recklessness amounted to a crime under Section 20 of the Offences against the Person Act 1861. The Supreme Court in Jones (cited above) stipulates that the crime that Section 20 defines will always amount to a crime of violence. We went on to decide that the attack also constituted an offence under section 3 of the Dangerous Dogs Act 1991 in that the dog was dangerously out of control in a public place. Furthermore we decided that the attack fell within the Authority’s own guidance in that it was as result of the owner’s failure to control an animal known to be vicious and the lack of control amounted to recklessness.”

 

9. I interpose here that, although the Tribunal very properly referred in its reasons to the Supreme Court’s decision in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 (“Jones”, reported in April 2013), it did not have the benefit of the Court of Appeal’s subsequent decision in CICA v First-tier Tribunal (Social Entitlement Chamber) and TS [2014] EWCA Civ 65 (“CICA v FTT and TS”), which was not decided until February 2014.

 

 

 

The grounds for the application for judicial review to the Upper Tribunal

10.  In summary, the application by the CICA for permission to apply for judicial review is based on the arguments that the Tribunal (i) applied the wrong test of recklessness in concluding that an offence had been committed under section 20 of the Offences against the Person Act (OAPA) 1861; and (ii) failed to give adequate reasons for its decision.

 

11.  As regards ground (i), Mr Moretto, for the CICA, emphasised that the Supreme Court in Jones had made it clear that the test for section 20 of the OAPA 1861 was based on subjective and not objective recklessness (see Lord Hope DPSC at [9]-[11] and Lord Carnwath at [38]). It followed that for the purposes of section 20 it was not enough that the alleged offender should have foreseen that some physical harm might result; rather it was essential to show that he did actually foresee that some physical harm to another person would be the consequence of his act. In the present case, Mr Moretto argued, the Tribunal had plainly applied the wrong test, as shown by the final sentence in paragraph [28] of its statement of reasons, namely the statement that “Mr O’Leary should have foreseen that some physical harm to Mr Doyle might result.”

 

12.  Mr Moretto also referred to the Court of Appeal’s more recent judgment in CICA v FTT and TS, which concerned the offence under section 3(1) of the Dangerous Dogs Act 1991. That case is authority for the proposition that an offence under section 3(1) of the 1991 Act is not by its nature (as opposed to its consequences) necessarily a crime of violence. The offence under section 3 may be committed without any violent conduct and without any intention (or even apprehension) on the part of the dog owner that harm might result. It follows that section 3 is an offence of strict liability (see CICA v FTT and TS per Moore-Bick LJ at paragraph 17 and see R v Bezzina [1994] 1 W.L.R. 1057). In CICA v FTT and TS Moore-Bick LJ had expressed the view that it was “difficult to accept that negligently to allow a dog to escape, even a dog known to be aggressive, constitutes a crime of violence, giving that expression its ordinary meaning” (at paragraph 23), although his Lordship went on to observe that “Whether a crime of violence has been committed will depend on the particular circumstances of the case” (at paragraph 24). Mr Moretto submitted that the Tribunal’s failure to establish subjective recklessness on the part of Mr O’Leary likewise meant that its reliance on the offence under section 3 of the 1991 Act was similarly flawed.

 

13.  As regards ground (ii), Mr Moretto submitted that the Tribunal’s reasoning was inadequate, as it did not explain how the Tribunal had reached the conclusion that there was subjective recklessness on the part of Mr O’Leary. Nor had the Tribunal explained the basis on which it had found there to be a “crime of violence” within the meaning of the Scheme. Furthermore Mr Moretto argued that it was unclear from the Tribunal’s decision what had actually happened in the incident. In particular, the Tribunal had failed to make any findings as to the adequacy of the tether or as to Mr O’Leary’s state of knowledge on that issue.

 

14.  Ms Galloway, for Mr Doyle, argued in summary that I should not give permission to apply for judicial review and, even if I did, I should dismiss the application. She reminded me of the need for an appropriate degree of judicial restraint in examining the Tribunal’s reasoning. Ms Galloway also emphasised that the Tribunal’s decision had to be read as a whole, rather than focussing on one particular sentence in the statement of reasons taken out its wider context. In her submission the Tribunal had applied the correct test and on the facts it had found was entitled to reach the conclusion that offences had been committed under both section 20 of the OAPA 1861 and section 3 of the Dangerous Dogs Act 1991 and that those offences each constituted a “crime of violence” for the purposes of the Scheme. The present case, she argued, was distinguishable on its facts from CICA v FTT and TS. In short, she argued that the Tribunal had applied the right legal test, had reached a decision it was entitled to on the evidence before it and the facts it had found, and had adequately explained its reasoning. Ms Galloway also made an application for costs against the CICA.

 

The Upper Tribunal’s analysis

The starting point

15.  In my view the appropriate starting point is Ms Galloway’s submission that an appellate tribunal should exercise an appropriate degree of restraint when reviewing the reasoning of the First-tier Tribunal. She referred me to the well-known observations of Lord Hope in Jones:

 

“It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (at paragraph 25).

 

16.  Likewise, in CICA v FTT and TS Moore-Bick LJ agreed that First-tier Tribunal decisions should be “read benevolently” and that “both the Upper Tribunal and the Court of Appeal should be cautious about interfering with its decisions, even when they are less fully expressed than might be desirable” (at paragraph 20).

 

The Tribunal’s approach to the central issue of recklessness under s.20 OAPA 1861

17.  The central issue in this case was whether or not the Tribunal had applied the correct legal test for recklessness in deciding whether an offence under section 20 of the OAPA 1861 had been committed. The primary submission by the CICA was that the Tribunal had erred in law by applying an objective rather than a subjective test of recklessness. Mr Moretto understandably placed considerable emphasis on the final sentence of paragraph 28 of the Tribunal’s statement of reasons, namely the assertion that “Mr O’Leary should have foreseen that some physical harm to Mr Doyle might result”, as evidence that the Tribunal had indeed asked itself the wrong question. Taken in isolation, that sentence would indeed seem to be game, set and match to Mr Moretto. However, the Tribunal’s reasons must not only be read “benevolently” or with “judicial restraint” but as a whole and in their proper context. There are several factors which have led me to the conclusion that the Tribunal did in fact apply the correct legal test.

 

18.  First, and indeed reading the decision as a whole, there are the clear indicators elsewhere in this relatively lengthy statement of reasons that the Tribunal did ask itself the right question and so applied the correct legal test. In its summary decision on the day, the Tribunal found that the dog “was more generally known to be vicious, not least to the owner himself” (statement of reasons at [1]). In that context the Tribunal had recorded and accepted the neighbours’ evidence both that Mr O’Leary had said the dog was hired out at night as a security dog and that Mr O’Leary’s daughter had said “it was a good job the dog had not gone for Mr Doyle’s throat or it would have killed him” ([12] and [13]). In addition, the Tribunal made the express finding of fact that the “lack of control by Mr O’Leary amounted to recklessness, not least because he was aware of the dog’s propensity for viciousness” ([26], final bullet point).

 

19.  Second, and again reading the decision in context, the Tribunal had received detailed submissions on the relevant law from the parties’ representatives. Counsel for Mr Doyle (not Ms Galloway on that occasion) had provided the Tribunal with a carefully reasoned 7-page skeleton argument. This document correctly referred the Tribunal to the subjective test for recklessness, citing the relevant passage from Lord Hope’s speech in Jones. Those submissions were referred to in outline by the Tribunal (at [23]). In contrast, the CICA’s representative at the hearing had relied on the (then) official guidance as rehearsed in C. Padley and L. Begley, Criminal Injuries Compensation Claims (2005, p.31). This guidance phrased the test in terms of whether the dog had been deliberately set on the victim or whether the attack was the result of the owner’s failure to control a dog which was known to be vicious to humans. There is no suggestion that the CICA’s representative referred the Tribunal to the correct legal test as laid down in Jones. It is therefore arguable that the CICA was advocating a more demanding test in terms of “known viciousness”. Be that as it may, reading the decision as a whole, the Tribunal plainly found as a fact that Mr O’Leary knew the dog to be vicious and foresaw the risk of some harm if it was not properly kept under control.

 

20.  Therefore, reading the Tribunal’s statement of reasons as a whole, and in the context of all the documentary material, oral evidence and submissions before it, I am satisfied that the Tribunal knew what the correct test was, considered the application of that test in the light of the factual findings it had made on the evidence, and found that the test of subjective recklessness on the part of Mr O’Leary was made out. In that context I also bear in mind Ms Galloway’s argument that one aspect of appellate judicial restraint is a proper recognition that the First-tier Tribunal is the judge of the facts. Thus it is not the role of an Upper Tribunal Judge “to reanalyse evidence (which he had not heard) from a perspective that he preferred” (per Leveson LJ in Secretary of State for Work & Pensions v Roach [2006] EWCA Civ 1746 at paragraph 37).

 

21.  So where then does this leave the Tribunal’s final sentence in paragraph 28, i.e. that “Mr O’Leary should have foreseen that some physical harm to Mr Doyle might result”? I do not actually regard this as a statement of the test applied by the Tribunal for the following reasons. First, as explained above, there is sufficient material elsewhere in the statement of reasons to satisfy me that the Tribunal in fact applied the proper legal test of subjective recklessness. Second, this is a decision of a First-tier Tribunal, not a judgment of the High Court, and the occasional slip in the use of language does not fatally undermine the sound work done elsewhere in terms of the substance of the decision. Third, although paragraph 28 appears in a section headed ‘Reasons’, the two paragraphs in question are not actually the Tribunal’s reasons set out in isolation – the Tribunal’s reasons appear throughout the statement of reasons; paragraphs 28 and 29 are an attempt to condense those reasons by way of a summary, and it is precisely in that process of compression that there is a risk that concepts may be elided.

 

22.  Although I do not rely on the matter, not least as I heard no argument on the point, I note that the Tribunal’s decision was signed off by one of the Tribunal’s specialist members, who chaired the panel, and not by the legal member. I simply observe that it is entirely possible that the sentence at the end of paragraph 28 which has caused so much difficulty might not have crept in if the legal member had had the ultimate responsibility for drafting the Tribunal’s statement of reasons.

 

The Tribunal’s approach to the offence under s.3 of the Dangerous Dogs Act 1991

23.  I received extensive submissions from both Mr Moretto and Ms Galloway on the implications for the present case of the decision of the Court of Appeal in CICA v FTT and TS, which was decided a month after the Tribunal issued its statement of reasons. Whereas undergraduate law students are only expected to know the law as it stands on the day they actually sit their examinations, irrespective of what the Court of Appeal may decide on the very next day, it is a fact of judicial life that first instance courts and tribunals are always at risk of being found to have erred in law because of a subsequent clarification of the law by an appellate body.

 

24.  In summary, Mr Moretto argued that CICA v FTT and TS demonstrated that the emphasis must be on the nature of the crime, not its consequences, in order to find whether it was a “crime of violence”. Section 3 of the Dangerous Dogs Act 1991 was on offence of strict liability, i.e. one which had no specific mental element as an ingredient, let alone subjective recklessness. The present incident was at most a case of negligence on the part of Mr O’Leary, and so even if there had been an offence under section 3 of the 1991 Act it was not a crime of violence. Ms Galloway acknowledged that the offence under section 3 was “loosely defined” with no required mental element. However, the facts of the present case were very different from those in CICA v FTT and TS in a number of material respects. Given all those circumstances, and looking at the nature of what was actually done, she argued that on the facts it had found the Tribunal was entitled to conclude both that an offence had been committed under section 3 and that it amounted to a crime of violence.

 

25.  It is fair to say that in its statement of reasons the Tribunal devoted relatively little direct attention to the question of the offence under section 3. Its summary reasons on the day referred to the dog being “out of control”, which was plainly a nod in the direction of section 3 (statement of reasons at [1]). The Tribunal further noted the fact that the Appellant’s case had been put on the twin bases of the OAPA 1861 and the 1991 Act (at [5]), with the latter argument being acknowledged as the Appellant’s “secondary position” (at [25]). The arguments of the CICA senior decision maker, who acted as presenting officer at the hearing, were summarised, but these appeared to make no direct reference to the 1991 Act ([21]-[22]). In its passage headed ‘Reasons’ (perhaps better described as ‘Summary of reasons’, as explained above), the Tribunal simply noted that “we went on to decide that the attack also constituted an offence under section 3 of the Dangerous Dogs Act 1991, in that the dog was dangerously out of control in a public place” ([29]).

 

26.  The passages referred to in the previous paragraph, taken in isolation, might well suggest that the Tribunal have erred in law in the light of CICA v FTT and TS, either in terms of applying the proper legal test or at the very least in terms of the adequacy of its reasoning. However, it is wrong to read those passages in splendid isolation. They have to be read against the background of how the case was argued by the parties. The skeleton argument submitted by Mr Doyle’s then counsel, referred to above, was obviously prepared at a time when she did not have the benefit of the Court of Appeal’s decision in CICA v FTT and TS. In my view, however, in broad terms and for the most part it accurately stated the law. Counsel acknowledged that the offence under section 3 did not require any mens rea, and that it was unclear whether the offence under section 3 would necessarily amount to a crime of violence (at §13). She then properly cited Jones and argued that the fact that the dog was “dangerously” out of control and that the aggravated offence under section 3 had been committed was enough to make this a crime of violence (at §16). I accept that counsel’s suggestion in her skeleton that the fact that the commission of the crime resulted in violence was itself and without more sufficient for it to be categorised as a crime of violence cannot stand in the light of CICA v FTT and TS, with its emphasis on the inherent nature of the crime rather than its consequences. However, counsel made it clear that the primary basis of the appeal was on section 20 of the OAPA 1861, and so the niceties of the 1991 Act “may be of little practical importance” (at §14). The Tribunal, of course, acknowledged this two-tier approach (see statement of reasons at [25]).

 

27.  I do not think it is necessary to deal with all the arguments around the actual or potential factual distinctions between the circumstances of the present case and the facts of CICA v FTT and TS. I simply make these two observations. First, much of Mr Moretto’s argument was premised on the basis that Mr O’Leary had been guilty at worst of negligence in failing to keep his dog under control. However, the Tribunal made it plain that it regarded him as having knowingly run the risk of harm being caused to another such as to amount to subjective recklessness. Second, I regarded one of the distinctions drawn by Ms Galloway as particularly telling. In CICA v FTT and TS the dog approached a child on a bike and barked aggressively, causing the child to swerve into the road and suffer serious injury as a result of being struck by an oncoming car. In the present case the dog approached, attacked and bit Mr Doyle, without any intervening break in the chain of causation. This distinction is to my mind significant in that section 3 makes it an offence if a dog is “dangerously out of control in a public place” but provides for an aggravated offence “if the dog while so out of control injures any person”. The former is a summary offence while the latter is triable either way, and unsurprisingly carries increased sentencing powers (section 3(4)).

 

28.  Given all those circumstances, and the fact that I have dismissed the challenge based on the Tribunal’s approach to the test of recklessness under section 20, I am not satisfied that there was any material error of law in its approach to section 3 of the 1991 Act. If it had had the advantage of the Court of Appeal’s guidance in CICA v FTT and TS, I do not doubt that the Tribunal would have set out its reasoning rather more fully. However, it did not need to do so, given the way that the Appellant had made his case and the Tribunal’s conclusions on the question of recklessness under section 20.

 

The adequacy of the Tribunal’s reasoning

29.  Mr Moretto’s fallback position was that the Tribunal had failed to provide adequate reasons for its decision. His complaint was that it was unclear from the Tribunal’s statement of reasons what had actually happened on the day of the incident. For example, it was unclear whether the dog had been tethered to a tree and the location of the attack was less than obvious from the statement of reasons. Ms Galloway referred back to her arguments about the need for “judicial restraint” by appellate courts and tribunals when considering a fact-finding body’s conclusions on the facts and its reasons. In her submission the Tribunal’s statement made it clear enough in broad terms why the case was decided the way it was.

 

30.  I agree with Ms Galloway. It must be borne in mind that the Tribunal was reviewing the events of 11 May 2008 more than five years later. The Tribunal was singularly unimpressed by the limited “investigation” of the incident that had been carried out by PC Owens, who had very quickly decided to ‘no crime’ the matter, and remarkably had not even taken any contemporaneous statements from witnesses (statement of reasons at [19]). The cursory nature of the police action had inevitably hampered the Tribunal’s own inquiry (at [17]). However, the Tribunal had before it witness statements made in civil proceedings and also had oral evidence from various other neighbours which was found to be credible. In my view the Tribunal did the best it could in those difficult circumstances.

 

31.  Mr Moretto placed great emphasis on the Tribunal’s uncertainty as to whether the dog had been tethered and if so properly tethered. I was not persuaded. The Tribunal found as a fact that the dog had been able to attack Mr Doyle at his own back gate, some 30 yards from Mr O’Leary’s back gate. If the dog had been tethered, then obviously the tether was inadequate. To that extent I do not accept that the Tribunal can be criticised for stating that the tethering of the dog was a secondary issue. The facts of the matter, as found by the Tribunal, were that Mr O’Leary, who was present at all times, allowed his dog to have access to a public place, either tethering it inadequately or not tethering it at all, and allowed it to attack Mr Doyle in the knowledge that the dog was vicious and so presented a risk of injury to members of the public. Indeed, as Ms Galloway argued, the fact that Mr O’Leary was found to have shouted a warning actually supports the Appellant’s arguments. If the dog had been tethered, then the only reason a warning was required was because the dog was in a public place but without an adequate restraint. The issue of the warning merely supports the Appellant’s case that Mr O’Leary was well aware of the dog’s temperament and the risks it posed to passing members of the public.

 

The Upper Tribunal’s decision in R(SB) v First-tier Tribunal and CICA

32.  I held the oral hearing of the present application on 5 November 2014. Unbeknownst to me, on 4 November 2014 a three-judge panel of the Upper Tribunal had signed off its decision in R(SB and Others) v First-tier Tribunal and CICA [2014] UKUT 497 (AAC). I call this decision R(SB) v FTT for convenience. The main issue in R(SB) v FTT concerned the jurisdiction or powers of the First-tier Tribunal (FTT). The Upper Tribunal put the question before it in these terms (at para 1):

 

“1. These cases are concerned with the powers of the First-tier Tribunal (“FtT”) when allowing an appeal against a review decision made by a claims officer of the Criminal Injuries Compensation Authority (“CICA”). The principal and important question which we have to decide is whether the FtT’s powers are limited to determining the issue which was the actual subject of the appeal, or whether the tribunal can go on to decide other issues which may arise for determination before the final disposal of the compensation claim.”

 

33.  The Upper Tribunal summarised the effect of its decision as follows (at paragraphs 5 and 6):

“5. On the central issue that was argued before us we have concluded that the FtT is limited to deciding whether CICA’s review decision is correct on the issue (or issues) it has addressed and decided. Once it has decided that issue (or those issues), the FtT’s jurisdiction on the appeal ends (i.e. it is functus) and, accordingly, any remaining issues that may then arise in order to determine whether any award of compensation should be made under the criminal injuries compensation scheme (including the amount of any such compensation) falls to CICA to decide. Any such further decisions made by CICA will attract a further right of appeal to the FtT.

6. We recognise that our decision stands contrary to the FtT’s (and its predecessor’s) practice over many years, where it was the common approach for the FtT to adjourn to itself issues of compensation if it decided eligibility in favour of an applicant, but we consider that our decision is what the legislation requires.”

 

34.  In the present case the Tribunal followed its standard practice, i.e. precisely the practice which was found wanting in R(SB) v FTT. The standard form decision notice that it issued on the day of the hearing fell into three parts. First, in Part A (“Decision Made by the Tribunal Today”), it ruled that the Appellant was entitled to a full award of compensation under the Scheme. Second, in Part B (“Directions made by the Panel today”), it made a series of consequential directions, the first of which was Direction B1 to make an interim payment on account in the sum of £8,000. The other consequential directions under Part B were standard form directions e.g. as regards loss of earnings and special expenses. Third, under Part C (“What happens next”), the Tribunal directed that a single Judge would consider whether there was a need for further medical reports and the matter would then be re-listed for oral hearing.

 

35.  Obviously I did not hear argument on these various directions, as their lawfulness was not questioned in the grounds for judicial review. Equally obviously I have now considered whether I should have further written submissions from the parties on these directions in the light of R(SB) v FTT. I have decided against that course of action. The Upper Tribunal’s decision in R(SB) v FTT is perfectly clear. This particular case has been going on for a long time now and further delay should be avoided at all possible. In the light of my decision on the substantive point raised by the judicial review application, what matters now is that the amount of compensation due in Mr Doyle’s case is assessed. Before the decision in R(SB) v FTT that would have been done by the Tribunal. The position now is that the process must be carried out by the CICA (with a further right of appeal, of course).

 

36.  So what effect does R(SB) v FTT have on the decision in this case? Part A of the Tribunal’s decision, the focus of the argument before me, is unaffected. However, it seems to me that the consequential directions in Parts B and C of the Tribunal’s decision cannot stand in the light of R(SB) v FTT. There is one exception. In Direction B1 the Tribunal made an interim award of £8,000. I note that in at least two of the cases heard in R(SB) v FTT the FTT had allowed the claimant’s eligibility appeal and made an interim award (see [14] and [22] of the Upper Tribunal’s decision). Furthermore, the FTT’s power to make such an award ancillary to its decision on the eligibility appeal does not appear to have been brought into question by the Upper Tribunal’s decision.

 

Costs

37.  Finally, as noted above (at paragraph 14), Ms Galloway made an application for costs (amounting to just under £5,500). She pointed out that Mr Doyle as the Interested Party had had to take an active part in defending these judicial review proceedings, given the non-intervention of the formal Respondent (the Tribunal). She also observed that the CICA itself had advanced arguments at the original hearing before the Tribunal which have now been found wanting. Mr Moretto resisted the application.

 

38.  The Upper Tribunal’s costs jurisdiction has been considered in a number of its decisions. For present purposes I regard the most notable authority to be H v First-tier Tribunal and CICA (Costs) [2014] UKUT 338 (AAC). There Judge Levenson accepted that the Upper Tribunal has a discretionary power to award costs in judicial review proceedings (at paragraph 18; see further Tribunals, Courts and Enforcement Act 2007, section 29 and Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 10). However, as a general rule the Upper Tribunal should not apply its discretion to make an award of costs where the First-tier Tribunal would have had no power to do so (see further R (LR) v First-tier Tribunal and Hertfordshire County Council (Costs) [2013] UKUT 294 (AAC)). That Tribunal, of course, has no such power to make an order for costs in this type of case (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rule 10).

 

39.  The question really therefore is whether the CICA “has acted unreasonably in bringing, defending or conducting the proceedings” within rule 10(3)(d). It is true that the CICA’s position has changed over time, but that has been in large part in response to clarification from the Court of Appeal as to the meaning of the expression “a crime of violence” in this context. Although I have dismissed the substance of this application by the CICA, it was plainly an arguable case given that I have given permission to apply for judicial review. It follows that the Interested Party’s application for an order for costs against the CICA does not succeed.

 

Conclusion

40.  I therefore give the CICA permission to apply for judicial review. However, for all the reasons above I dismiss the substantive application for judicial review (and the application for costs). The Tribunal’s substantive decision therefore stands. That decision was to the effect that Mr Doyle sustained an injury which was directly attributable to a crime of violence. The Tribunal proceeded to say that “compensation is to be assessed following consideration of the Appellant’s medical records and any necessary medical reports” (statement of reasons at [27]). The Tribunal also went on to make further detailed case management directions. However, in the light of the Upper Tribunal’s decision in R(SB) v FTT, the Tribunal’s further directions for the onward handling of the case are no longer appropriate. I therefore quash those directions in the light of the decision in R(SB) v FTT, but with the exception of Direction B1 relating to the interim award.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 11 December 2014 Judge of the Upper Tribunal