Hutton & Ors v Criminal Injuries Compensation Authority

A claim outside a scheme’s time limit may warrant permission for judicial review where accepted evidence arguably discloses particular circumstances capable of making waiver reasonable and in the interests of justice. At the permission stage, the question is whether the tribunal could properly have waived the limit, rather than whether its refusal was perverse. Long delay is important but does not by itself prevent an arguable challenge. Minority, mental health difficulties and difficulty obtaining evidence may be relevant. The applicant remains responsible for making out the compensation claim and the case for waiver.

Three connected applications arose from the appellants’ father’s unlawful killing in 1966. Claims for compensation were made in 2008 and rejected under the scheme’s two-year time limit. The First-tier Tribunal dismissed the appeals on 25 September 2009. Judge Bano refused permission for judicial review on paper on 2 July 2010, and HHJ Edward Jacobs refused permission on renewal after an oral hearing on 3 March 2011. HHJ Jacobs accepted the appellants’ evidence but concluded that the First-tier Tribunal could not properly have waived the limit. The central issue was whether the accepted circumstances made waiver arguably reasonable and in the interests of justice.

Permission to appeal was granted on the time-limit waiver issue. Permission was refused on new grounds concerning the Human Rights Convention, alleged duties of care and discrimination.

1. Paragraph 18 of the scheme required an application within two years of the incident, but permitted a claims officer to waive that limit where particular circumstances made waiver reasonable and in the interests of justice. Paragraph 19 placed on the applicant the burden of making out both the compensation claim and the case for waiver.
2. The relevant question in the proposed judicial review was whether the First-tier Tribunal could properly have waived the limit. It was not confined to whether the tribunal’s decision was perverse. The issue was reasonably arguable and had a reasonable prospect of success on appeal.
3. HHJ Jacobs had accepted the evidence that the appellants were very young when their father died, that their mother suffered mental difficulties, that Mr Hutton was effectively responsible for pursuing the claims, and that he had done all he could reasonably do to obtain the necessary information. Although the delay after majority was very substantial, those facts arguably constituted particular circumstances relevant to waiver.
4. The court did not decide whether waiver should ultimately be granted. It decided only that the proposed challenge was sufficiently arguable to justify permission. Directions were to be considered for a rolled-up hearing in the Court of Appeal, with an estimated half-day hearing before three judges.

• Court of Appeal (Civil Division): On 23 November 2011, the renewed application for permission to appeal was granted on the issue whether the scheme’s time limit could properly be waived; permission was refused on the new grounds.
• Upper Tribunal: Judge Bano refused permission on paper on 2 July 2010. HHJ Edward Jacobs refused permission on renewal after an oral hearing on 3 March 2011.
• First-tier Tribunal: Tribunal Judge Thomas Ward dismissed the appeals on 25 September 2009, finding no sufficient particular circumstances and no basis for waiver in the interests of justice.
• Criminal Injuries Compensation Authority: The claims were rejected on 13 August 2008 under the two-year time limit.