Delay alone is not reason to refuse relief

LAW REPORT v 11 June 1997: Regina v Criminal Injuries Compensation Board, ex parte A; Court of Appeal (Lord Justice Simon Brown, Lord Justice Peter Gibson and Sir Iain Glidewell) 16 May 1997
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On the hearing of a substantive application for judicial review where leave had been granted, the court could not refuse relief on the basis of undue delay in bringing the proceedings, in the absence of hardship, prejudice or detriment to the respondent or a third party.

The applicant had applied for compensation to the Criminal Injuries Compensation Board, claiming that she had been raped and buggered in the course of a burglary. Her application was refused following an oral hearing. Evidence of a doctor, who had examined the applicant after her complaint was made, was not made available to the Board. Instead the Board relied on the evidence of the police officer who had taken the applicant to the doctor, which was unintentionally misleading.

Leave to move for judicial review was applied for and granted 10 months after the Board had given written reasons for its decision, the doctor's notes having eventually been obtained. Popplewell J heard the substantive application for judicial review and found that the Board should have adjourned the hearing for the report to be obtained. He went on, however, to find that there had been undue delay in bringing the proceedings, that there was no good reason for extending time, and that accordingly no relief would be granted.

Nicholas Blake QC and Elizabeth Woodcraft (Miller Paris, Worthing) for the applicant; Michael Kent QC (Treasury Solicitor) for the Board.

Lord Justice Simon Brown said that it was sought to impugn the Board's decision on two grounds: that the Board had acted unfairly, first in not of its own initiative obtaining the doctor's report or adjourning so that it could be obtained; and secondly in relying on the police officer's evidence about the medical examination.

The first and main issue arising on the appeal was whether, absent hardship, prejudice or detriment, it was open to the court on the hearing of the substantive judicial review motion, for which leave had been granted, to dismiss the challenge on the ground of undue delay.

That was clearly an issue of considerable general importance, which had only previously been the subject of a decision at first instance, in R v Tavistock General Commission, ex p Worth [1985] STC 564, later approved obiter by Evans LJ in Patterson v London Borough of Greenwich (1993) 26 HLR 159.

It was necessary to keep in mind the two legislative provisions governing delay: RSC Order 52 rule 4, and section 31 of the Supreme Court Act 1981. Quite different questions arose with regard to delay depending on whether the point was raised at the leave stage or at the substantive hearing.

At the leave stage the question was whether there was good reason for extending time and allowing the substantive application to be made. At the substantive hearing, however, the question was whether, in a case where there was initially undue delay, the merits of the challenge should be overriden by the hardship, prejudice or detriment that would result from the grant of relief. It followed that Worth had been wrongly decided and that Popplewell J had erred in dismissing the present challenge on grounds of delay.

Turning to the substantive grounds of the challenge, the applicant's submission that the Board themselves were under a duty to obtain the doctor's report must be rejected, otherwise such a duty would arise in every sexual case. Equally it was impossible to conclude in the present case that the Board should have adjourned the hearing.

The applicant's second submission was that the present case came within the principle, established in a long line of cases culminating in R v Bolton Justices, ex p Scally [1991] 1 QB 537, that there might be grounds for judicial review even though there had been no error or misconduct on the part of the tribunal itself, when unfairness in the proceedings resulted from some failure on the prosecutor's part, in the absence of fraud or dishonesty.

It was argued that the police ought to be regarded as acting in relation to the Board's procedures in a role akin to that of a prosecutor before a coventional tribunal. The critical distinction, however, between the present case and the Scally cases was in the respective nature of the processes being undertaken.

The applicant had therefore failed to make good either ground of her substantive challenge with the result that her appeal must fail, albeit for very different reasons to those given by Popplewell J.

Kate O'Hanlon, Barrister