R(Criminal Injuries Compensation Authority) v First-tier Tribunal (CIC)
| Judge | Lady Carmichael,Judge Rowland,Judge Markus QC |
| Neutral Citation | [2018] UKUT 439 (AAC),[2019] AACR 18 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Criminal injuries compensation - other,Tribunal procedure,practice - judicial review,practice - tribunal jurisdiction,Three Judge Panel |
R.(Criminal Injuries Compensation Authority) v First-tier Tribunal (CIC) [2018] UKUT 439 (AAC)
JR/906/2017
1
IN THE UPPER TRIBUNAL Case No. JR/906/2017
ADMINISTRATIVE APPEALS CHAMBER
Before: Lady Carmichael
Upper Tribunal Judge Rowland
Upper Tribunal Judge Markus QC
Mr Chris Pirie (of the Scots Bar), instructed by Ms Eileen Grant of the Authority’s
Legal and Policy Team, appeared for the Criminal Injuries Compensation
Authority.
The First-tier Tribunal did not appear and was not represented.
Ms Clare Connolly (of the Scots Bar), instructed by Ms Dominika Schmidtova of
Thompsons solicitors, appeared for the injured person.
Decision: This application for judicial review is struck out on the ground that the
Upper Tribunal does not have jurisdiction because, even if the Upper Tribunal has
jurisdiction in the strict sense, it declines to exercise it.
REASONS FOR DECISION
1. This is an application, made by the Criminal Injuries Compensation Authority
(“the Authority”) with permission granted by Upper Tribunal Judge Markus QC, for
judicial review of a decision of the First-tier Tribunal dated 15 December 2016,
whereby it allowed an appeal brought by the Interested Party (the “injured person”)
against a review decision of the Authority dated 23 February 2016.
2. The Authority had decided that the injured person was not entitled to
compensation under the Criminal Injuries Compensation Scheme 2012 (“the 2012
Scheme”) because he had not suffered an injury described in the tariff at Annex E to
the Scheme. The First-tier Tribunal decided that he had suffered such an injury.
The Authority considers that that decision was made in error of law.
3. There arises, however, the question whether the Upper Tribunal should
consider the Authority’s application. There is no doubt that the Court of Session
would have had jurisdiction to consider an application made to its supervisory
jurisdiction had the Authority made such an application to that Court. The issue is
whether the Upper Tribunal has concurrent jurisdiction and, if so, whether, applying
the principle of forum non conveniens, it should decline to exercise it because the
Court of Session is a more appropriate or suitable forum.
The facts and procedural history
4. The injured person lives in Edinburgh. On 30 May 2015, he was attacked by
an unknown assailant in Edinburgh. Through his solicitors, he made, on 25 June
R.(Criminal Injuries Compensation Authority) v First-tier Tribunal (CIC) [2018] UKUT 439 (AAC)
JR/906/2017
2
2015, a claim to the Authority under the 2012 Scheme, identifying his injuries as a
deviated nasal septum, a bloody nose, grazing, lacerations and cuts to his upper
limbs and scarring of his upper limbs and face. He said that he was waiting for
reconstruction surgery on his nose.
5. The claim was refused on 21 December 2015 on the ground that the injuries
were not “described in the tariff at Annex E”, as paragraph 32(a) of the Scheme
generally requires. The injured person applied under paragraph 117 of the Scheme
for a review on the ground that he had suffered a broken nose and was therefore
entitled to an award of £3,500 on the basis that his injury amounted to a fracture of
his skull requiring surgery. That application was rejected on 23 February 2016. He
appealed under paragraph 125 of the Scheme to the First-tier Tribunal, which
allowed the appeal on 15 December 2016 at a hearing in Glasgow. The First-tier
Tribunal pointed out that, from a medical point of view, the skull includes the nasal
bones and, having analysed Annex E to the Scheme, concluded that a fracture of the
nasal bones amounted to a fracture of the skull for the purposes of the Scheme.
Indeed, it also said that, as the medical evidence showed that the fracture required to
be elevated, the clear inference was that it was depressed. On that basis, it appears
that the appropriate award would be £4,600, since a depressed fracture of the skull
attracts a higher award than a simple one.
6. On 15 March 2017, the London office of the Administrative Appeals Chamber
of the Upper Tribunal received an application made by the Authority for judicial
review of the First-tier Tribunal’s decision. The grounds were drafted by counsel in
London. The Authority argued that the First-tier Tribunal had erred in its
interpretation of the Scheme and it relied substantially on the consultation document
that had preceded the making of the 2012 Scheme which, it submitted, showed that,
whereas a fractured nose had attracted compensation under the previous scheme, it
had been intended that such a fracture would not be compensated under the 2012
Scheme.
7. On 21 March 2017, the Senior Registrar of the Administrative Appeals
Chamber issued case management directions and raised the question whether the
“forum non conveniens doctrine” applied. He referred the parties to the decisions of
a three-judge panel of the Upper Tribunal in R.(MB) v First-tier Tribunal (CIC) [2012]
UKUT 286 (AAC); [2013] AACR 10 and R.(NF) v First-tier Tribunal (CIC) [2012]
UKUT 287 (AAC); [2013] AACR 11 (“MB” and “NF”).
8. In his acknowledgement of service, the injured person opposed the
application, referring to the principle of forum non conveniens and arguing that the
application should have been made to the Court of Session rather than the Upper
Tribunal because the case had no material connection with England. He asked that
the Upper Tribunal “defer to the jurisdiction of the Court of Session”.
9. On the other hand, the Authority argued that the Upper Tribunal had
jurisdiction under sections 15 and 18 of the Tribunals, Courts and Enforcement Act
2007 (“the 2007 Act”) and should not decline it on forum non conveniens grounds
because the claim concerned the correct interpretation of a UK-wide scheme –
actually, it is only GB-wide – that the Administrative Appeals Chamber of the Upper
Tribunal was a specialised tribunal with significant experience in dealing with
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