LHS v First-Tier Tribunal (Criminal Injuries Compensation) & Anor

Where a compensation scheme provides that awards are assessed on the basis of common law damages, the phrase may require broad equivalence with the outcome of a comparable civil claim. It does not necessarily incorporate common law principles in a strict and exclusive form.

Accordingly, the Criminal Injuries Compensation Authority was entitled to apply the discount rate routinely applied by the civil courts under the Damages Act 1996. The absence of power to award periodical payments under the scheme meant that a hypothetical periodical payments order was not the appropriate comparator. Generic challenges to the Lord Chancellor’s rate could not justify a case-specific departure.

The claimant suffered severe brain injuries as a result of criminal conduct and was eligible for compensation under the Criminal Injuries Compensation Scheme 1990. The First-tier Tribunal accepted the parties’ agreed figures but applied a 2.5 per cent discount rate to future losses.

The claimant sought judicial review, arguing that paragraph 12 of the Scheme required the tribunal to apply unmodified common law principles and rely on current expert evidence. He also argued that the rate should reflect the capitalised value of periodical payments that would probably have been ordered in ordinary civil proceedings, or that a different rate should be adopted under section 1(2) of the Damages Act 1996.

1. Application dismissed. The First-tier Tribunal had rejected the claimant’s arguments for substantially the right reasons.
2. Paragraph 12 of the Criminal Injuries Compensation Scheme 1990 was not a prescriptive incorporation of the common law as a body of judge-made law insulated from statutory developments. The Scheme was a practical instrument intended to produce a broadly equivalent financial outcome to a comparable civil claim, subject to its express modifications.
3. That objective required the methodology systematically applied by the civil courts. The Lord Chancellor’s 2.5 per cent rate under section 1(1) of the Damages Act 1996 was therefore properly applied in assessing the lump-sum award.
4. The absence of power under the Scheme to order periodical payments was decisive against using the capitalised value of a hypothetical periodical payments order as the comparator. Lump sums and periodical payments were calculated in materially different ways, and periodical payments could not be brought into play indirectly.
5. Helmot v Simon [2012] UKPC 5 did not govern the issue. It concerned Guernsey, where the statutory context differed. Its reasoning could assist only if paragraph 12 required the Authority to act as a civil court applying common law principles on that footing, which it did not.
6. The claimant’s proposed departure under section 1(2) of the Damages Act 1996 was based on generic objections to the rate, rather than particular features of his case. The authorities supported rejecting such a collateral challenge, and the absence of periodical payments was not a sufficient particular feature.

Permission to apply for judicial review was granted by Collins J. The Administrative Court dismissed the challenge to the First-tier Tribunal’s determination.