Case Summary


Citation 2004  EWCA  Civ  234
Decision Date 03/03/2004
Scheme 1996 Scheme
Paragraph Number 18, 19, 20, 52, 74
Keywords Criminal Injuries Compensation Scheme 1996 – Paragraph 18, 19, 20, 52, 74 – Procedure - Costs of legal representation not recoverable – Human Rights Act 1988 - No breach of European Convention on Human Rights
Headnote Summary of decision An application was made to the Criminal Injuries Compensation Authority on behalf of a severely disabled child for compensation and for her legal costs and the costs of obtaining medical and other evidence. The child was granted an award but was refused costs on the basis she was not entitled to them under paragraphs 18 to 20 of the Criminal Injuries Compensation Scheme 1996. The Court of Appeal held that those provisions of the Scheme did not constitute an interference with the child’s rights under the European Convention on Human Rights. The Court did however outline the extent of the Authority’s duties to obtain evidence under paragraph 20 of the 1996 Scheme. Facts The Appellant (‘C’) was viciously assaulted aged 11 months by her mother’s boyfriend leaving her severely disabled and totally dependent on her carers. An application was made to the Criminal Injuries Compensation Authority (‘the Authority’) on behalf of C, and after many years, on review, a final award was made in the statutory maximum sum of £500,000. C’s solicitors had incurred costs in representing her interests, which the Authority declined to pay. C sought judicial review of the Authority’s decision: Mitting J determined that the Authority was not liable to fund C’s legal costs. C appealed Mitting J’s decision on the grounds that the limited provision for the costs of examination and legal representation under paragraphs 18 to 20 of the Criminal Injuries Compensation Scheme 1996 (‘the 1996 Scheme’) was incompatible with C’s rights under Articles 6,8 and 14 of the European Convention on Human Rights and Article 1 of the First Protocol. The incompatibility challenge was on the basis that since compensation under the Criminal Injuries Compensation Act 1985 and the Scheme was a right, the state was obliged to fund access to it for those who were otherwise incapable of establishing their claim. Held, dismissing the application (1) C did not belong to a class discriminated against in terms of article 14 (Prohibition of discrimination) The applicant’s disabilities were compensated for by being represented by two competent adults. (2) Article 8 (Right to respect for private and family life) had no bearing on the issue before the Court: Willis v United Kingdom (2002) 28 EHRR CD 166 considered. The need to incur legal costs and pay them out of the award did no more than required the plans for C to be modified. Article 1 of the First Protocol was also not engaged. To be compelled to charge the award received with the costs of securing it did not amount to a deprivation by the state of part of the award, and in any event, any such deprivation was in the public interest in order to limit public expenditure. (3) A claim made to the Authority under the 1995 Act and the 1996 Scheme involved a determination of C’s civil rights and therefore attracted the protection of Article 6(1). However, the argument that compelling C to expend a significant part of her already limited compensation in order to obtain it was denying her a fair hearing was not the same as the argument that C was denied access to justice before the Authority for want of funds. (4) Where a claimant whose right of access to the Authority was recognised and effective committed part of the eventual fund to obtaining legal representation to ensure that the award obtained was as full as it should be, it was not the intention of the Scheme that such representation should be at the Authority’s expense. The Scheme could have provided otherwise but it did not follow that it was bound to so in order to give effect to C’s Convention rights under Article 6(1). (5) The Scheme diminished C’s award by the cost of her representation; while many people would regard this as unfair, it did not deprive her of the possibility of a fair hearing within the meaning of Article 6(1). The court specifically refrained from accepting that the same principle would apply in cases in which eligibility and/or grounds for withholding or reducing an award were in issue. (6) There was a duty on the Authority under paragraph 20 of the Scheme to call for a medical examination whenever one was needed: it covered those cases where there was a factual question about the occurrence of an injury, those where there was an aetiological question about the attributability of an injury to a particular crime and those cases where the only question was the extent of attributable injury. The Authority was right to accept a broad view of what such an examination might include, such as occupational therapist, nursing and specialist surveyor’s reports. In this way an applicant could be relieved of some of the work and cost of obtaining evidence in support of his or her claim. Claimant's solicitors could not however make their own medical inquiries and assume that they could pass on the cost to the Authority. It was not lawful for the Authority to displace the function or the cost of arranging such examinations on to the claimant as part of the obligation to make out her case, though it might lawfully delegate it to her or her representatives as part of its own functions, in which case such costs would be recoverable. Parts of scheme and other legislation referred to in judgment Criminal Injuries Compensation Scheme 1996, paragraphs 18, 19, 20, 52, 74 Criminal Injuries Compensation Scheme 2001, paragraphs 19 & 21 Criminal Injuries Compensation Act 1985, ss.2, 11(2) Human Rights Act 1988,ss. 3, 4,6, 21 European Convention on Human Rights, Arts.6,8,14 and Art 1 of the First Protocol Cases referred to in judgment Willis v United Kingdom (2002) 28 EHRR CD 166 Airey v Ireland (1979) 2 EHRR 305 S & M v United Kingdom (1993) 18 EHRR CD 172 A v United Kingdom (2003) 13 BHRC 623 Representation Mr Timothy Lamb QC and Mr Guy Opperman instructed by FDC Law for the Appellant Mr Jonathan Crow and Miss Ruth Downing instructed by the Treasury Solicitor for the Respondent Editors’ note: The appellant subsequently applied to the European Court of Human Rights (ECHR) but on 25 August 2005 the ECHR declared the application inadmissible.
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