R v Criminal Injuries Compensation Board, ex parte A

JurisdictionUK Non-devolved
JudgeLORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD NOLAN,LORD CLYDE,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date25 March 1999
Judgment citation (vLex)[1999] UKHL J0325-4
Date25 March 1999
CourtHouse of Lords
Regina
and
Criminal Injuries Compensation Board
(Respondents)
Ex Parte A (A.P.)
(Appellant)

[1999] UKHL J0325-4

Lord Slynn of Hadley

Lord Mackay of Clashfern

Lord Nolan

Lord Clyde

Lord Hobhouse of Woodborough

HOUSE OF LORDS

LORD SLYNN OF HADLEY

My Lords,

1

A applied to the Criminal Injuries Compensation Board on 20 November 1991 for compensation claiming that, in the course of a burglary at her house by two men on 25 May 1991, she had been assaulted, raped and buggered. That application was refused orally on 31 August 1993 and the refusal was confirmed by letter dated 9 December 1993. On 14 February 1995 Carnwath J. gave her leave to move for judicial review of the decision, but on 15 December 1995, Popplewell J. refused relief and A's appeal was dismissed by the Court of Appeal on 16 May 1997. Simon Brown L.J. in the Court of Appeal said: "The issues raised on the appeal are many, various and difficult." With the leave of the House, she now appeals to your Lordships.

2

Three broad questions arise, a negative answer to any one of which may make an answer to the subsequent questions unnecessary, viz.: (a) should her application for judicial review have been allowed to proceed since she was so long out of time in applying; (b) if it should, were there grounds for setting aside the decision of the Board; (c) if there were, is it right now to set aside the decision and to send it back for further consideration?

3

The Grant of Leave

4

An application to move for judicial review cannot be granted unless leave is obtained. Two provisions are relevant to the incidence of delay. In the first place, R.S.C., Ord. 53, r. 4 provides:

"(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made."

5

Such an application may be made, as it was here, ex parte.

6

The second provision is section 31 of the Supreme Court Act 1981 ( [1998] Q.B. 659, at 670):

"(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant–(a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."

7

The co-existence of these two provisions is perhaps curious and has led to differences of interpretation and practice. In Reg. v. Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell [1990] 2 A.C. 738, 746- 747, per Lord Goff of Chieveley, the House considered, however, that the two can be read together. Thus, even if an application is not made promptly (and in any event within three months from the relevant date) the court may extend the period if it finds good reason for extending the time to make the application (Order 53, r. 4(1) and section 31(7)). There is undue delay for the purposes of section 31(6) if the application for leave is not made promptly or within three months of the relevant date. But even if it considers that there is good reason for extending the period, the court may refuse leave or may refuse the relief sought if in its opinion to grant relief would be likely to cause hardship or prejudice or would be detrimental to good administration.

8

In this case, Carnwath J. on an ex parte application granted leave and said: "I think I couldn't shut this out on delay because that is a point that can be taken in the proceedings if leave is granted" and "It seems to me that you should have leave, but I think that the question of delay–Board may want to raise that." The actual order he made was "Leave Granted." He clearly thus contemplated that there would be an opportunity for the Board to raise the question of delay and he did not in terms rule that there was "good reason for extending the period within which the application shall be made" nor did he extend the period.

9

It seems to me, however, that his intention in giving leave must have been to extend the period, otherwise he would have had to rule that the application was out of time and to have refused leave, and that the Board would have the opportunity to raise the issue of hardship, prejudice or detriment to good administration on the inter-partes hearing. He may, however, also have had in mind that the issue of "good reason for extending the period" could be re-opened at the substantive hearing.

10

Popplewell J. on the substantive hearing rejected a contention that there was here any hardship, prejudice or detriment to good administration. Leave or relief could not therefore be refused under section 31(6) of the Act of 1981. He ruled, however, that he was entitled to reconsider the question of delay on the basis that no good reason had been shown for extending it within the meaning of Order 53, r. 4(1), especially it seems "if the matter has, indeed, been reserved for full argument." He treated it in effect as a "conditional leave," subject to fuller argument and he refused to extend the time.

11

This approach has, your Lordships were told, been followed in practice in other cases, though the only reported decision directly in point to which we were referred was Ex parte Worth [1985] S.T.C. 564. In that case, Webster J. ruled that the giving of leave did not amount to an extension of time. The judge's task on the ex parte application was to do no more than to decide that there was an arguable case for judicial review and not to "determine any issue finally in favour of the applicant." He said:

"In short I conclude, while recognising that the conclusion does not follow inevitably from the express wording of the rules in the Act (sic) that the granting of leave to move does not preclude the respondent from objecting that the application has been made out of time."

12

This view is reflected obiter in Patterson v. Greenwich London Borough Council (1993) 26 H.L.R. 159, per Evans L.J.

13

It seems to me that the two provisions produce the following result:

14

(a) On an ex parte application, leave to apply for judicial review can be refused, deferred to the substantive hearing or given.

15

(b) Leave may be given if the court considers that good reason for extending the period has been shown. The good reason on an ex parte application is generally to be seen from the standpoint, as here, of the applicant. Thus the reason for the delay here was "the practical difficulties [the applicant's solicitors] have encountered in trying to bring this matter before the court" (counsel for the applicant before Carnwath J.) It is possible (though it would be unusual on an ex parte application) that if the court considers that hardship, prejudice or detriment to good administration have been shown, leave may still be refused even if good reason for an extension has been shown.

16

(c) If leave is given, then an application to set it aside may be made, though as the Court of Appeal stressed, this is not to be encouraged.

17

(d) If leave is given, then unless set aside, it does not fall to be re-opened at the substantive hearing on the basis that there is no ground for extending time under Order 53, r. 4(1). At the substantive hearing there is no "application for leave to apply for judicial review," leave having already been given.

18

(e) Nor in my provisional view, though the matter has not been argued and the question does not arise here, is there a power to refuse "to grant … leave" at the substantive hearing on the basis of hardship or prejudice or detriment to good administration. The court has already granted leave; it is too late to "refuse" unless the court sets aside the initial grant without a separate application having been made for that to be done. What the court can do under section 31(6) is to refuse to grant relief.

19

(f) If the application is adjourned to the substantive hearing, the question under both Order 53, r. 4(1) (good reason for an extension of time) and section 31(6) (hardship, prejudice, detriment, justifying a refusal of leave) may fall for determination.

20

On this first question, it is not necessary to consider whether good reason for an extension of time had been shown on the facts. That issue was concluded by the decision of Carnwath J. I have no reason to think that that is a wrong result; on the contrary, like Simon Brown L.J., prima facie, I think it was the right result.

21

I would accordingly, as did the Court of Appeal, overrule Ex parte Worth and hold that Popplewell J. did not have jurisdiction to reconsider the question of an extension of time and whether good grounds had been shown under Order 53, r. 4(1) and to hold that they had not.

22

Application to Quash the Board's Decision

23

The Board, set up under the Prerogative in 1964, entertains "applications for ex gratia payments of compensation in any case where the applicant … sustained … personal injury directly attributable–(a) to a crime of violence … "(1990 Scheme, paragraph 4). By paragraph 6 of the Scheme, the Board may withhold or reduce compensation if they consider that "(a) the applicant has not taken, without delay, all reasonable steps to inform the police, … of the circumstances of the injury … (b) the applicant has failed to give all reasonable assistance to the Board or other authority in connection with the application." By paragraph 25, it is for the applicant to make out...

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