Vonkova v Criminal Injuries Compensation Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 21 January 2019
• Neutral Citation: [2019] IEHC 13
• Docket Number: [2017 No. 300 J.R.]
• Court: High Court
• Date: 21 January 2019

BETWEEN

MAGDALENA VONKOVA

APPLICANT

AND

CRIMINAL INJURIES COMPENSATION TRIBUNAL, MINISTER FOR JUSTICE, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 13

[2017 No. 300 J.R.]

THE HIGH COURT

Compensation – Judicial review – Statement of grounds – Applicant seeking leave to amend statement of grounds – Whether the Criminal Injuries Compensation Scheme is incompatible with the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union

Facts: On 21st July, 2008, Ms Vonkova, a Czech national, was murdered by Mr Fidler, also a Czech national, in a house An Cartur Leathan, Inverin, Co. Galway. For about a year before her death, Ms Vonkova had been living in the house with Mr Coleman. Mr Fidler was living, or at least staying, in the house at the same time. The applicant, Ms Vonkova’s mother, made an application to the first respondent, the Criminal Injuries Compensation Tribunal, for compensation. This was refused by the single panel member and on appeal on the ground that article 10 of the scheme excluded cases where the offender and the victim were living together as members of the same household. The appeal to the Criminal Injuries Compensation Tribunal was determined on 9th January, 2017. On 8th May, 2017, the High Court (Noonan J) gave liberty to the applicant to apply by way of an application for judicial review for an order quashing the decision of 9th January, 2017, on the grounds that it was unsupported by the evidence and based on a misconstruction of article 10 of the scheme. The applicant was also given leave to apply for declarations: (a) that the first respondent did not adhere to fair procedures; (b) that the Criminal Injuries Compensation Scheme is not compatible with the requirements of Council Directive 2004/80/EC of 29th April, 2004; and (c) that the Criminal Injuries Compensation Scheme is incompatible with the European Convention on Human Rights (ECHR). The applicant was also given leave to apply for damages for breach of the applicant’s constitutional rights, ECHR rights, and for breach of Council Directive 2004/80/EC. The applicant’s notice of motion was issued on 11th May, 2017, originally returnable for 27th June, 2017. Opposition papers were filed on 9th March, 2018. In May 2018, senior counsel was instructed on behalf of the applicant. Senior counsel thought that there was another ground on which the Criminal Injuries Compensation Scheme could be challenged, namely that it is incompatible with the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and/or in breach of the principle of effectiveness of European Union law in failing to provide for a guarantee of fair and appropriate compensation to the victims of violent international crimes committed in the State, as required by Article 12 of Directive 2004/80/EC, and the principle of effectiveness of European Union law. By letter dated 7th June, 2018, the applicant’s solicitors wrote to the respondents’ solicitor enclosing a draft amended statement of grounds and seeking consent to amend. By letter dated 18th June, 2018, the respondents’ solicitor refused to consent and a motion seeking leave to amend was issued on 19th June, 2018, originally returnable for 10th July, 2018.

Held by the High Court (Allen J) that the public policy in the certainty and security of the administrative scheme had already yielded to some extent to the right of the applicant to challenge it. Moreover, in circumstances in which it was agreed that the proposed new ground was arguable, Allen J found that there was a lot to be said from a policy perspective for allowing the challenge to the scheme on all arguable grounds. Allen J held that if the challenge on the existing grounds only were to fail, the existence of an additional, admittedly arguable, untested ground might to some extent undermine the certainty of the scheme; on the other hand, if the scheme survived a challenge on all arguable grounds, this would serve to buttress it.

Allen J held that there would be an order pursuant to O. 84, r. 23(2) giving liberty to the applicant to amend the statement of grounds in the terms of the draft exhibited to the affidavit of Mr O’Kelly sworn on 3rd July, 2018 and marked “MOK9”.

Application granted.

JUDGMENT of Mr. Justice Allen delivered on the 21st day of January, 2019

1 On 21st July, 2008, Nicola Vonkova, a Czech national, was murdered by Jakub Fidler, also a Czech national, in a house An Cartur Leathan, Inverin, Co. Galway. For about a year before her death, Ms. Vonkova had been living in the house with Michael Coleman. Mr. Fidler was living, or at least staying, in the house at the same time.

2 Ms. Vonkova's mother, the applicant, made an application to the Criminal Injuries Compensation Tribunal for compensation. This was refused by the single panel member and on appeal on the ground that article 10 of the scheme excluded cases where the offender and the victim were living together as members of the same household. The appeal to the Criminal Injuries Compensation Tribunal was determined on 9th January, 2017.

3 On 8th May, 2017, the High Court (Noonan J.) gave liberty to the applicant to apply by way of an application for judicial review for an order quashing the decision of 9th January, 2017, on the grounds that it was unsupported by the evidence and based on a misconstruction of article 10 of the scheme.

4 The applicant was also given leave to apply for declarations:-

(a) that the first respondent did not adhere to fair procedures in failing to provide assistance to the applicant in circumstances in which she was a foreign national with little English and limited means, and in not advising the applicant that she could have made her application for compensation in the Czech Republic under the rules made there to implement the European Convention on the Compensation of Victims of Violent Crimes of 24th November, 1983;

(b) that the Criminal Injuries Compensation Scheme is not compatible with the requirements of Council Directive 2004/80/EC of 29th April, 2004, because it did not create a system of cooperation between the authorities of Member States to facilitate access to compensation, which system of cooperation would have directed the applicant to the availability to her of the scheme in the Czech Republic which did not have the same or similar exclusion to that in article 10 of the Irish scheme;

(c) that the Criminal Injuries Compensation Scheme is incompatible with European Convention on Human Rights

and for damages for breach of the applicant's constitutional rights, European Convention on Human Rights rights, and for breach of Council Directive 2004/80/EC.

5 The applicant's notice of motion was issued on 11th May, 2017, originally returnable for 27th June, 2017. Opposition papers were filed on 9th March, 2018.

6 In May 2018, senior counsel was instructed on behalf of the applicant. Senior counsel thought that there was another ground on which the Criminal Injuries Compensation Scheme could be challenged, namely that it is incompatible with the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and/or in breach of the principle of effectiveness of European Union law in failing to provide for a guarantee of fair and appropriate compensation to the victims of violent international crimes committed in the State, as required by Article 12 of Directive 2004/80/EC, and the principle of effectiveness of European Union law.

7 By letter dated 7th June, 2018, the applicant's solicitors wrote to the respondents” solicitor enclosing a draft amended statement of grounds and seeking consent to amend. By letter dated 18th June, 2018, the respondents” solicitor refused to consent and this motion seeking leave to amend was issued on 19th June, 2018, originally returnable for 10th July, 2018.

8 The affidavit of the applicant's solicitor grounding this motion deposes that senior counsel advised that the statement of grounds be broadened in the terms I have already set out. He says that the proposed amendments are just and necessary for the purpose of determining the real questions in controversy and that the respondent will not be prejudiced.

9 In an affidavit sworn on 4th October, 2018, the secretary of the first respondent, Mr. Charles G. O'Connell, points out that the request for amendment came upwards of a year after the proceedings issued and eighteen months after the decision under review was delivered. He suggests that the applicant wishes to add a completely new ground, well outside the time limits prescribed by the Rules of the Superior Courts.

10 In the affidavit grounding this application the applicant's solicitor sought to invoke the power of amendment in O. 28 of the Rules of the Superior Courts and many of the cases included in the book of authorities were concerned with the exercise of this power, but senior counsel for the applicant in argument acknowledged (as counsel for the respondents had argued in their written submissions) that this reliance was misplaced. On the authority of O'Leary v. Minister for Transport, Energy and Communications [2000] 1 I.L.R.M. 39, the test on an application for leave to amend grounds for seeking judicial review is much more stringent than that applicable to pleadings generally.

11 Counsel for the applicant argues that on an application to add grounds the court is concerned with three issues: (1) arguability, (2) explanation, and (3) prejudice. It is conceded that the proposed new ground is arguable. The explanation, it is said, is simply that the new ground did not occur to junior counsel who moved the leave application. And, it is said, since the proposed new ground is a legal argument only, the respondents cannot be prejudiced.

12 In support of his argument,...