Regina v Criminal Injuries Compensation Board, Ex parte A (A.P.)

The House of Lords considered (i) the effect of delay and the procedure for granting leave to apply for judicial review under R.S.C., Ord. 53, r. 4 and section 31 of the Supreme Court Act 1981; and (ii) whether the Board's decision should be quashed for unfairness arising from material factual error. The Lords held that an ex parte grant of leave should not ordinarily be re-opened at the substantive hearing unless the initial grant is set aside, and that the court has power to refuse relief under section 31(6) if undue delay causes prejudice or would be detrimental to good administration. On the facts, the Board had decided the claim on materially incorrect evidence because a police witness gave an inaccurate account of a Police Doctor's findings and the Board did not have the doctor’s written report; that failure produced unfairness in breach of the rules of natural justice. The Board's decision was therefore quashed and the matter remitted for reconsideration in the light of the medical report.

Background and facts:

• The applicant (A) applied to the Criminal Injuries Compensation Board on 20 November 1991 claiming assault, rape and buggery during a burglary on 25 May 1991. The Board refused the application orally on 31 August 1993 and by letter on 9 December 1993.
• A obtained ex parte leave to apply for judicial review from Carnwath J on 14 February 1995; on 15 December 1995 Popplewell J refused relief on the substantive hearing, and the Court of Appeal dismissed A's appeal on 16 May 1997.

Nature of the claim and relief sought:

• A sought judicial review of the Board's refusal of compensation under the Board's 1990 Scheme.

Issues framed by the court:

1. Whether the grant of leave should have been treated as an extension of time under R.S.C., Ord. 53, r. 4 and whether the substantive court could re-open that question;
2. Whether there were grounds to quash the Board's decision, including whether material error of fact or unfairness (breach of natural justice) had occurred;
3. Whether, if those grounds existed, the appropriate remedy was quashing and remitting the decision to the Board.

Court’s reasoning and conclusions:

• On delay and leave: the Lords explained how Ord. 53 r. 4 and section 31 of the Supreme Court Act 1981 operate together. An ex parte grant of leave may be given where the judge is satisfied there is good reason to extend time, but unless the ex parte grant is set aside it should not be reopened at the substantive hearing as if leave had not been granted. The court may, however, refuse relief under section 31(6) where undue delay would cause substantial hardship, prejudice or be detrimental to good administration.
• On the merits: although the Board is ordinarily entitled to evaluate evidence and prefer police evidence to the applicant's evidence, here the Board proceeded on a mistaken factual basis because a police witness gave an inaccurate account of a Police Doctor's findings and the Board did not have the doctor’s written report which supported the applicant's account. The Lords treated the resulting situation as unfairness in breach of natural justice even though there was no suggestion of deliberate misstatement by the witness.
• Remedy: recognising the practical difficulties of re-opening an old hearing, the Lords held that because the only new material was documentary (the Doctor's report) and because justice required reconsideration, the Board's decision should be quashed and the matter remitted to the Board to consider that report.

Appeal allowed. The House of Lords held that an ex parte grant of leave should not be re-opened at the substantive hearing unless set aside; that the Board's decision was vitiated by unfairness because it proceeded on materially incorrect evidence (the police witness’s account) and did not obtain or consider the Police Doctor's written report; and that the proper remedy was to quash the decision and remit the matter to the Board for reconsideration in the light of that report.

The Board refused the application (oral refusal 31 August 1993; confirmation by letter 9 December 1993). Carnwath J granted ex parte leave on 14 February 1995. On substantive hearing Popplewell J refused relief on 15 December 1995. The Court of Appeal dismissed A's appeal on 16 May 1997 (reported at [1998] Q.B. 659). With leave of the House, A appealed to the House of Lords, which allowed the appeal on 25 March 1999 ([1999] UKHL 21).