Tomlinson v Criminal Injuries Compensation Tribunal

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 19 January 2005
• Neutral Citation: [2005] IESC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 155 of 2004]
• Date: 19 January 2005

[2005] IESC 1

THE SUPREME COURT

DENHAM J.

GEOGHEGAN J.

McCRACKEN J.

APPEAL NO. 155/2004

TOMLINSON v CRIMINAL INJURIES COMPENSATION TRIBUNAL

BETWEEN/

ANGELA TOMLINSON

APPLICANT/APPELLANT

AND

CRIMINAL INJURIES COMPENSATION TRIBUNAL

RESPONDENT

GARVAN v CRIMINAL INJURIES TRIBUNAL UNREP SUPREME 20.7.1993 1999/12/3142

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

BUCKLEY v JUDGE KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395 2000/3/887

STEFAN v MIN FOR JUSTICE & ORS 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

JUDICIAL REVIEW:

Remedies

Alternative remedies of appeal and judicial review - Discretionary remedy - Whether judicial review appropriate remedy - Factors court should consider in exercising discretion - The State (Abenglen Properties) v Dublin Corporation [1984] IR 381; McGoldrick v An Bord Pleanála [1997] 1 IR 497; Buckley v Kirby [2000] 3 IR 431 and Stefan v Minister for Justice [2001] 4 IR 203 followed - Appeal allowed; remitted for rehearing (155/2004 - SC - 19/1/2005) [2005] IESC 1, [2005] 1 ILRM 394

Tomlinson v Criminal Injuries Compensation Tribunal

The respondent, by way of a single member decision awarded compensation to the applicant for the death of her husband. However, the respondent deducted a sum from the award representing the benefits paid on the death of the applicant's husband. The applicant contended that that deduction was unauthorised under the scheme of compensation and was made in excess of jurisdiction. Mr Justice Kelly refused the application for judicial review in the High Court on the basis that the applicant failed to exhaust the procedure provided for in the scheme by not appealing the decision of the respondent. The applicant appealed against that decision.

Held by the Supreme Court (Denham, Geoghegan, McCracken JJ) in allowing the appeal and remitting the case to the Judicial Review list in the High Court:

1. That the presence of an appeal was not a bar to the court exercising its discretion to grant judicial review but was a factor for the court in considering the requirements of justice.

2. That in the circumstances of this case, where a question of law going to the jurisdiction of the respondent to make the deduction was at issue, the more just remedy was that of judicial review. Furthermore, there was an apparent bias in returning the question to the respondent for a decision.

Reporter: L.O'S

1 19th day of January, 2005 by Denham J.

Denham J.

2 1. At issue on this appeal is the exercise of judicial discretion in the granting or refusing of leave to apply for judicial review when there is an alternative remedy available to the applicant.

3 2. Angela Tomlinson, the applicant/appellant, is referred to hereafter as the applicant. The applicant's husband died on the 20th day of April, 1997, following an assault in a Dublin Hotel.

4 3. On the 14th day of August, 1997, the applicant applied to the Criminal Injuries Compensation Tribunal, the respondent, for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted.

5 4. By letter dated 24th day of September, 2002, the applicant was informed that her claim for compensation had been considered by a member of the Tribunal who was of the opinion that it came within the scope of the scheme and who made an award of €30,571.02 plus stg£431,000.00. The letter informed the applicant of her right of appeal and that such an appeal is heard at a sitting of three members of the Tribunal and is a hearing de novo at which the Tribunal may confirm the amount awarded, vary the amount awarded, or refuse the application and make no award of compensation.

6 5. Attached to the letter of the 24th day of September, 2002, was a copy of the decision. This stated that there was sufficient evidence to say that the application came within the scheme. The award was set out as follows:

7 Actuarial fees €5,176.06

8 For loss of earnings. I have carefully read the report of Piers Segrave Daly & Lynch. Mr. Francis Tomlinson was head of marketing for Nomura Capital Management U.K Limited. I think the assumptions made in the actuaries report are optimistic. In particular the assumption that the late Mr. Tomlinson's earnings would increase by 67% between the 5th April, 1997 and the year 2000/2001. I am prepared to allow a loss of earnings figure of stg £990,000.00.

9 I am further prepared to allow for loss of the company car a sum of stg £33,000.00.

10 From these sums should be deducted a sum of the benefits paid on the death of Mr. Tomlinson as per the report of Joseph G. Byrne & Sons Actuaries stg£592,000.00.

11 Therefore the figure I am actually allowing for loss of wages including loss of company car is stg£431,000.00.

12 For mental distress I am awarding a total of €25,394.96 to be divided as follows:-

13 Mrs. Angela Tomlinson €15,394.96

14 Each of the three sons,

15 Matthew, Andrew and Richard €2,000 each € 6,000.00

16 To the Mother, Patricia € 2,000.00

17 To each of his two brothers,

18 Christopher and Anthony €1,000 each € 2,000.00.

19 6. At issue is the deduction stg£592,000.00 made by the Tribunal.

20 7. The applicant has been advised by counsel that this deduction was unauthorised under the scheme and that it was made in excess of jurisdiction.

21 8. The applicant applied for leave to apply for judicial review. On 16th day of December, 2002, the High Court (O'Higgins J.) granted leave to apply by way of application for judicial review in respect of the following reliefs:-

22 1. A declaration by way of judicial review that the deduction of stg£592,000 made from compensation payable to the applicant and her three sons, Matthew, Andrew and Richard was ultra vires the respondent, void and of no effect.

23 2. An Order of Mandamus by way of judicial review directing the respondent to determine the compensation payable to the applicant and her three sons in accordance with the declaration sought herein.

24 3. In the alternative an Order of Certiorari by way of judicial review quashing that part of the award of the respondent by which it deducted the sum of stg£592,000 from the compensation payable to the applicant and her three sons.

25 9. The High Court (Kelly J.) on 3rd day of March, 2004, refused the application. This is an appeal by the applicant from that judgment and subsequent order of the 9th day of March, 2004.

26 10. The High Court referred to the decision Garvan v Criminal Injuries Compensation Tribunal (Unreported, Supreme Court, 20th July, 1993) as authority for the proposition that the courts should be very slow to intervene by way of judicial review except to correct a final decision of the respondent. The High Court determined that the court should not intervene before the process envisaged under the scheme has been exhausted. Reference was made to the fact that there was no time limit provided for in the scheme for the bringing of an appeal against a determination of a single member so that the applicant is not prejudiced in that regard. The High Court held:

"I am not persuaded by the argument which is made on behalf of the applicant that the exercise by her of her right of appeal is in some way unfair or unjust. Either her case falls within the scheme or it does not. The single member has concluded that it does. If on appeal a different view is taken and that view is wrong in law she is not without remedy before this court. I am not prepared to assume that the respondent will misdirect itself and wrongly hold that the applicant falls outside the terms of the scheme if in fact she does not."

27 The High Court determined that it was not an appropriate case in which the court should interpose itself by way of judicial review before the mechanism contemplated in the scheme had been exhausted. The High Court decided not to express any view on the substantive arguments and the construction of paragraph 5 of the scheme.

28 11. Thus, the issue on this appeal is whether the learned High Court judge was correct in exercising his discretion against granting judicial review on the grounds that the applicant had the opportunity to appeal...