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THE SUPREME COURT
APPEAL NO. 155 of 2004
DENHAM J.
GEOGHEGAN J.
McCRACKEN J.
BETWEEN/
ANGELA TOMLINSON
APPLICANT/APPELLANT
AND
CRIMINAL INJURIES COMPENSATION TRIBUNAL
RESPONDENT
Judgment delivered on the 19th day of January, 2005 by Denham J.
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.
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.
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.
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.
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:
Actuarial fees €5,176.06
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.
I am further prepared to allow for loss of the company car a sum of stg £33,000.00.
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.
Therefore the figure I am actually allowing for loss of wages including loss of company car is stg£431,000.00.
For mental distress I am awarding a total of €25,394.96 to be divided as follows:-
Mrs. Angela Tomlinson €15,394.96
Each of the three sons,
Matthew, Andrew and Richard €2,000 each € 6,000.00
To the Mother, Patricia € 2,000.00
To each of his two brothers,
Christopher and Anthony €1,000 each € 2,000.00.
6. At issue is the deduction stg£592,000.00 made by the Tribunal.
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.
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:-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.
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.
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.
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.
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.”
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.
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 to a three member panel of the respondent.
Law
12. The common law, on the discretion to be exercised by a court when there is an application for judicial review in circumstances where an alternative remedy exists, has been developed over the last two decades. Several different approaches may be seen in The State (Abenglen Properties) v. Dublin Corporation [1984] I.R. 381. In that case, O’Higgins C.J. stated at page 393:“The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
Over a decade later, it was stated by Barron J. in a High Court judgment in McGoldrick v. An Bord Pleanála [1997] 1. I.R. 497 at page 509:“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to show that this is in effect the real consideration.”
This approach has been endorsed by the Supreme Court. In Buckley v. Kirby and another [2000] 3 IR 431, the Court, in a judgment delivered by Geoghegan J., adopted the view of Barron J. in McGoldrick, as expressed above. In Stefan v. Minister for Justice [2001] 4 IR 203, it was stated in a judgment of mine, with which the other members of the Court agreed, that the presence of an appeal is not a bar to the Court exercising its discretion but rather a factor for the Court in considering the requirements of justice. I referred to the test stated by Barron J. in Mc Goldrick, as set out above, and that it had been adopted by Geoghegan J. in Buckley, and said at page 217:“Once it is determined that an order of certiorari may be granted, the court retains a discretion in all the circumstances of the case as to whether an order of certiorari should issue. In considering all the circumstances, matters including the existence of an alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an order of certiorari is not granted and the degree of fairness of the procedures, should be weighed by the court in determining whether certiorari is the appropriate remedy to attain a just result.”
13. Application
The test to be applied by the court, on an application for judicial review where there is an alternative remedy, is thus settled law. It is a question then of applying the law to the facts of this case.
14. The fundamental facts are simple. The applicant applied to the respondent for compensation. The respondent, by way of a single member decision, decided that the scheme applied to the applicant and made an award but deducted from the assessment of loss a sum of stg£592,000.00. This deduction is the only issue raised by the applicant on the award made by the respondent.
15. The applicant obtained leave to apply for judicial review. In opposing this judicial review, the respondent filed a full defence in the grounds of opposition stating:1. It is denied that the applicant is entitled to the relief sought or to any relief.
…
3. It is denied that the deduction of the sum of sterling £592,000 was contrary to the express provisions of the scheme, whether as alleged at paragraph (e) (xi) of the Statement of Grounds or at all. The respondent was empowered to deduct the said sum by virtue of Article 5 and/or Article 15 of the scheme.4. In the premises, the respondent did not act ultra vires in deducting the sum of sterling £592,000 nor did the respondent take account of irrelevant considerations or considerations that it was not empowered to take into account, whether as alleged at paragraph (e) (x) of the Statement of Grounds or at all.
The statement of grounds of opposition then went on to rely on the alternative remedy of appeal under the scheme pursuant to Article 25. Thus, the statement of opposition, while pleading that there was an alternative remedy and that the applicant should not be entitled to judicial review, also pleaded that the respondent was entitled to make the deduction. The respondent thus addressed the substantial issue, the issue of interpretation, the issue going to jurisdiction, that is the issue of the deduction. In so addressing the matter, the respondent pleaded that it was entitled to make the deduction.
16. The respondent, having pleaded to the issue that the deduction was intra vires, there is the appearance that it has reached a decision on this issue. This appears clear for two reasons. First, a member of the respondent has already decided that the deduction should be made. Secondly, the respondent has pleaded in these judicial review proceedings that the respondent was entitled to make the deduction. While I am in no way determining that a three member Tribunal of the respondent would not approach the matter fairly, I consider that it would in the circumstances be perceived as unlikely to be capable of adopting a different view.
17. Further, if the court returned the net issue to the respondent, when it appears clear what the decision of the respondent will be, if consistent with the past views of the respondent, this would require the applicant to seek judicial review of the matter at a later stage.
18. Further, this alternative remedy of appeal does place the applicant at a degree of risk in that, while she has raised only a net issue of assessment on this judicial review, the appeal under the scheme is a hearing de novo which would include the issue of liability. Consequently, she, and the children, would be on full risk once again.
19. In all the circumstances of this case, justice requires that there be a decision on the law. It is appropriate on the facts to seek a determination now as to whether the respondent is entitled under the scheme to make the deduction which it did.
Counsel for the applicant, Mr. Paul O’Higgins, S.C., submitted that the right to appeal was an avenue but not an alternative remedy, in all the circumstances. I am satisfied that in this he is correct. An appeal under the scheme is a route open to the applicant but it is a road upon which she has taken no steps. The remedy sought is a decision on law as to the jurisdiction of the applicant to make the deduction in issue.
20. The existence of the alternative remedy does not prevent the Court from exercising its discretion as to whether or not to grant judicial review. While a court would lean towards requiring that the remedies available under the scheme be exhausted, the ultimate decision depends on the circumstances of the case. In this case, a question of law going to the jurisdiction of the respondent to make the deduction is the issue, the fact that it is a question of law is a factor in favour of a decision by a court, and that it is appropriate that it be decided by a court of law. In addition, given the views on this question of law previously expressed by the respondent, there would appear to be an apparent bias (which of course is not to say that a three member Tribunal would actually be biased) in returning the question to the respondent for a decision.
21. In this case, the core issue is the jurisdiction of the respondent to make the decision, thus the right of an alternative remedy is not so weighty a factor as to exclude the applicant from the court.
22. In all the circumstances, in the context of common sense, the more just remedy is that of judicial review. To obtain a determination on the issue, which is a question of law going to the jurisdiction of the respondent, the just result is to proceed by way of judicial review.
23. Consequently, I would allow the appeal and remit the matter to the High Court so that the substantial judicial review may proceed. I do not believe it is necessary that the case be heard by the same judge as the issues before the High Court will be the substantive issue and not the preliminary issue. Thus, I would remit this case to the judicial review list of the High Court.
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