C. B. v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, C.B., is a British national who was born in 1994 and lives in Frome. She is represented before the Court by FDC Solicitors, practising in Frome. The applicant was born on 9 December 1994. On 31 November 1995, the applicant was assaulted by her mother’s boyfriend. She suffered severe injury – left hemiplegia, blindness and severe mental impairment. She required full time care provided by her grandparents who were appointed her legal guardians. On 16 October 1997, the applicant’s grandparents made an application on her behalf to the Criminal Injuries Compensation Authority ("CICA"). They instructed solicitors to present her claims to the Authority. The solicitors obtained inter alia medical reports and reports as to her future needs (care, accommodation, transport, holiday etc). The fees exceeded GBP 35,000. Pursuant to the Criminal Injuries Compensation Scheme 1995, costs of representation in pursuing a claim were not recoverable (paragraph 18). By letter dated 20 November 2002, CICA informed the applicant that they were minded to make an interim award of GBP 320,000. The applicant’s solicitors responded by insisting that they issue a final award. By letter dated 28 February 2003, CICA informed the applicant that they had made a final award of GBP 406,246. They rejected the large claim for future costs once she became an adult on the basis that these would be largely met by the local authority. In June 2003, CICA informed the applicant that they had reviewed the award and would increase it to the statutory maximum of GBP 500,000. The applicant’s solicitors and CICA have been in subsequent negotiation concerning the type of trust that should be set up to administer the fund. Apparently the money has yet to be transferred. Meanwhile, in August 2002 an action was taken on her behalf challenging the compatibility of paragraph 18 of the Scheme with Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1. On 22 May 2003, the High Court rejected the applicant’s claims. Mr Justice Mitting noted: "It has never been in doubt that her claim is well-founded and cannot be subject to any reduction on the grounds of her conduct or character. The only issue for the Authority to decide has been the amount of compensation which should be awarded to her. On any view it was always going to be substantial." He found that the obligation for an applicant to make out his case did not require him to obtain at his own expense all the professional reports necessary to prove the nature and extent of his injuries and their impact upon his life and the cost of alleviating it. Once he had demonstrated significant injury and that cost would be incurred in alleviating it, the burden of investigating both elements fell on the Authority. Under paragraph 18, the Authority were, however, under no obligation to reimburse costs of representation, including drafting and submitting the application, advising on the application, negotiating with the Authority and responding to the Authority’s queries. Although a well-founded claim to compensation under the Scheme was acknowledged by all parties to be a "civil right" under Article 6, he did not consider that the requirement under the scheme for applicants, who chose to obtain legal representation to assist in their claims, to bear those costs either restricted their ability to apply to the Authority or deprived them of a fair determination of their claim. He rejected the claim of the discriminatory effect on the applicant’s pecuniary rights due to her position as a severely handicapped child, considering that the applicant was in the same situation as anyone with a complex claim who would be likely to want to seek some professional legal advice. Further the applicant’s grandparents could make any decisions which an adult could make. On 11 February 2004, after a hearing, the Court of Appeal rejected the applicant’s appeal. It noted that meanwhile the Authority had accepted that they should pay for various medical and expert reports and commented strongly on the delay in making a final award, where the severity of her injuries plainly fell in the highest tariff category. It seemed to have been principally because of the Authority’s dilatoriness that the applicant’s solicitors became engaged in establishing each element of her claim and bespoke specialists’ reports and counsel’s advice in order to do so. Lord Justice Sedley noted that the parties agreed that Article 6 applied to the scheme but considered that as the scheme had operated in this case no violation of the applicant’s rights arose: "... ought the Scheme, in order to comply with C.’s Article 6 § 1 right to a fair hearing provide for the reimbursement of her solicitor’s full bill of costs? This now exceeds GBP 28,500; it covers a wide range of inquiries and the fees of leading and junior counsel. C. has never faced the prospect of being unable to pay these costs, and because of the willingness of her solicitors to defer payment her lack of funds and that of her grandparents has not impeded her access to the CICA. I am less impressed by Mr Crow’s argument (though it found favour with Mitting J) that, so long as she has competent adults to act for her, C. is at no disadvantage at all. Given the unnecessarily complex course taken by the CICA, the grandparents were as much in need of advice and representation as C. was. But C.’s situation, even so, is not analogous with Mrs Airey’s, nor with that of an impecunious claimant needing to establish a primary entitlement. Her situation is that of a person whose right of access to the CICA is recognised and effective (though impeded by prevarication) but whose carers, very reasonably, want to ensure that the award she obtains is as full as it should be. To that end they have committed a part of the eventual fund to obtaining representation. It is the intent of the Scheme that where this happens it is not to be at the CICA’s expense. That the Scheme could have provided otherwise is clear; but it does not follow that it was bound to provide otherwise in order to give effect to C.’s Convention right ... In my judgment it has not been shown that the Scheme invades C.’s human rights in this regard. It diminishes her award by the cost of her representation; but while many people would regard this as unfair, it does not deprive her of the possibility of a fair hearing within the meaning of Article 6 § 1..." On 26 July 2004, written confirmation was received that the House of Lords refused leave to appeal finding no arguable point of law of general public importance. Compensation for persons who suffered criminal injuries was provided for originally by an exercise of the Royal Prerogative. The modern statutory scheme was set up under the Criminal Injuries Compensation Act 1995. Under section 1(1), it is provided that: “The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.” At the relevant time, the Criminal Injuries Compensation Scheme 1995 laid out the applicable rules. Paragraph 18: "It will be for the applicant to make out his case ... Where an applicant is represented, the costs of representation will not be met by the Authority." Paragraph 20: “Where a claims officer considers that an examination of the injury is required before a decision can be reached, the Authority will make arrangements for such an examination by a duly qualified medical practitioner. Reasonable expenses incurred by the applicant in that connection will be met by the Authority.” Section 6(1) provides: “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” Section 8 provides: “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order, within its powers, as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.”