MB JR 931 2011
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 31 July 2012 |
| Neutral Citation | 2012 UKUT 286 AAC |
| Subject Matter | Criminal Injuries Compensation |
| Respondent | First-tier Tribunal and CICA |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 931 2011 |
| Appellant | MB |
[2013] AACR 10
(R (MB) v First-tier Tribunal & Criminal Injuries Compensation Authority (CIC)
[2012] UKUT 286 (AAC))
Mr Justice Charles CP JR/931/2011
Lord Brailsford
Judge Levenson
31 July 2012
Tribunal jurisdiction – interpretation of section 15(1) of the Tribunals, Courts and Enforcement Act 2007 – whether right of appeal lies to the Upper Tribunal or the Court of Session – application of forum non conveniens doctrine
The claimant alleged that before October 1979 he was the victim of repeated sexual abuse by ES, an unrelated older child, after they were both placed with the same foster mother in England. The claimant later moved to Scotland and claimed criminal injuries compensation. The Criminal Injuries Compensation Authority (CICA) rejected his claim on the basis of the “same roof rule”; it took the view that he and ES had been living as members of the same family. The claimant disagreed with this view and in his appeal to the First-tier Tribunal (F-tT) he stated that ES was not registered at the foster mother’s address, as he was a serving member of the British Army (the incidents occurred either when ES was on leave or at weekends). A F-tT in Scotland issued a strike out warning and thereafter a F-tT Judge in England issued a decision striking out the appeal on the basis that ES’s army service failed to establish any new issue not previously considered and any appeal was unlikely to succeed. The CICA argued before the Upper Tribunal that section 15(1) of the Tribunals, Courts and Enforcement Act 2007 was limited to cases arising under the law of England and Wales (or Northern Ireland) and referred to the law governing the original decision (in this case the claim for compensation). The issue before the Upper Tribunal therefore was whether proceedings for judicial review of the decisions of the First-tier Tribunal could be brought in England and Wales (and in particular before the Upper Tribunal pursuant to section 18 of the 2007 Act), or in Scotland, or in both jurisdictions.
Held, allowing the application and quashing the decision of the First-tier Tribunal, that:
- as a matter of the ordinary meaning of the statutory language such applications were within the meaning of the phrase: “cases arising under the law of England and Wales”, and there was no circularity in so construing it. It followed that the 2007 Act did not provide for mutually exclusive review jurisdictions in England and Wales on the one hand and Scotland on the other and that the forum non conveniens doctrine applied in determining whether the High Court (and the UT) or the Court of Session should determine a review of a decision when both have jurisdiction to do so (paragraph 30)
- it was common ground that the Court of Session had supervisory jurisdiction but as the forum non conveniens doctrine applied the convenient forum was the Upper Tribunal (paragraph 4)
- the F-tT erred in law by failing to consider, or to properly consider, whether: (a) the alleged abuse, or some of it, was inflicted after the alleged abuser had joined the army, and, if so, whether the alleged abuser was then living elsewhere as his main residence or when he was on service, and, if so, whether in either or both of those circumstances he and the claimant were, at the relevant times, living together in their foster home or former foster home, and/or (b) the alleged abuse, or some of it, was inflicted after the alleged abuser had attained the age of 18, and so had ceased to be a child and, if so, whether the claimant, as a foster child, and the alleged abuser, as an adult who had been a foster child of the same foster mother, were, at the relevant times, members of the same family (paragraph 31)
The Upper Tribunal remitted the case to the First-tier Tribunal for reconsideration.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
DECISION
1. The decision of the First-tier Tribunal dated 22nd February 2011 striking out the applicant’s appeal on the basis that there was no reasonable prospect of it succeeding is set aside.
2. The applicant’s appeal against the rejection of his claim by the Criminal Injuries Compensation Authority is remitted to the First-tier Tribunal.
REASONS FOR DECISION
Introduction
1. This is an application to the Upper Tribunal (UT) for judicial review of a decision of the Social Entitlement Chamber of the First-tier Tribunal (F-tT) on an appeal to it from a decision concerning the exercise of a right conferred by the Criminal Injuries Compensation Scheme (CICS) in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995. It was heard by a three-judge panel together with another application for judicial review of a decision of the F-tT (R (NF) v F-tT & CICA [2012] UKUT 287 (AAC); [2013] AACR 11) relating to the CICS, because the two cases give rise to jurisdictional issues.
2. The jurisdictional issues were identified by Judge Wikeley when giving permission and directions, as follows:
“Whether proceedings for judicial review of the decisions of the F-tT may be brought in England and Wales (and in particular before the UT pursuant to section 18 of the 2007 Act), or in Scotland or in both jurisdictions?”
We heard no argument relating specifically to Northern Ireland.
3. In both cases, the Free Representation Unit (FRU) and counsel acted for the applicants pro bono. They should be grateful for the assistance so provided to them, and we repeat our gratitude for the written and oral submissions made on their behalf. At the request of the UT, the Criminal Injuries Compensation Authority (CICA) also provided written and oral submissions on the jurisdictional issues that were helpful. The respondent tribunal played no part in the case before the Upper Tribunal.
4. The jurisdictional issues turn on the application and thus the construction of sections 15 to 21 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), which must be applied in their context. Dependent on those answers, questions arise concerning which court or tribunal should exercise jurisdiction. As to that second question, but by different routes, the parties reached common ground, namely:
(a) in this case, that the UT had, and should exercise, its jurisdiction under sections 15 and 18 of the 2007 Act. This flowed from the common result, based on different reasons, that both the UT and the Court of Session had jurisdiction and the UT should continue to deal with the judicial review on forum non conveniens grounds, and
(b) in the other case, the common ground was that the review jurisdiction should be exercised by the Court of Session, but in that case CICA argued that the UT did not have jurisdiction and the applicant argued that the route to that result was again based on forum non conveniens grounds.
.
We agree with that common ground and as a result announced our decisions at the end of the hearing.
5. However, the jurisdictional issues, and in particular the issue as to the extent of the jurisdiction of the UT under sections 15 to 18 of the 2007 Act, remained live issues that were argued because they affected the route to the common ground and thus the basis for the orders made by the UT in the two cases before us.
The jurisdictional issues
Judicial review and the supervisory jurisdiction of the Court of Session
6. Broadly stated, these jurisdictions of the High Court and the Court of Session to review the decisions of inferior courts and tribunals, and other governmental and public bodies exercising powers based on the laws of the relevant country, are founded in the common law. These jurisdictions are directed to seeing that such courts, tribunals and bodies do not exceed or abuse their powers. In the ordinary course, they will be exercised by the superior court over decisions made by such courts, tribunals and bodies in its jurisdiction (in the sense of its territorial reach). But, that broad principle must be handled circumspectly where the issue concerns the jurisdiction (in the sense of the legal powers) of courts of the constituent parts of the United Kingdom (see Tehrani v Home Secretary [2006] UKHL 47; [2007] 1 AC 521 at [21] and [22]).
Background facts of this case
7. These are helpfully set out by Judge Wikeley when giving permission to apply for judicial review and directions in the following terms:
“4. ...
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