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Court of Appeal rejects claims with ‘reluctance’

Sympathy: Sir Christopher Clarke, the President of the Court of Appeal (File photograph)

Five victims of crime whose claims for compensation were turned down by a government board have lost an appeal to get that decision overturned.

They may still be able to get compensation for their suffering after a Court of Appeal panel recommended that the Criminal Injuries Compensation Board grant them an “ex gratia” payment on the grounds that it was morally the right thing to do.

The three Court of Appeal judges have also called for a change to legislation so that claimants will no longer be “left in the dark” by a mixture of bureaucracy and misinformation that stymies applications.

The issue came to a head this month after the five had had applications for compensation turned down by the CICB and fought to have those decisions overturned by the Court of Appeal.

Each applicant submitted a claim for compensation more than two years after the incidents that had led to their injuries. Their claims were turned down because, under existing legislation, the CICB cannot accept claims submitted after the two-year time limit.

At a hearing this month, the five — including a mother whose son had been murdered, a mother whose infant child suffered brain damage after being dropped while in the care of a nurse, and a man who suffered brain damage after being shot — claimed that they were never told of the two-year time limit.

They also argued that efforts to get compensation were further hampered by government officials who told them not to submit claims until all paperwork — including death certificates and even proof of the criminal conviction of the perpetrator — could be secured.

In a judgment handed down on Friday, the claims of all five appellants were rejected by the Court of Appeal — but only with “profound reluctance”.

In a ruling, Sir Christopher Clarke, the President of the Court of Appeal, expressed sympathy for all five victims, noting that they were people who had “endured much suffering”.

He said: “No one in whose veins blood flows could not but sympathise with their sorrows.”

The panel accepted that the CICB had to operate under laws passed by Parliament.

Sir Christopher added: “That said, there are a number of facets of the existing scheme that strike me as profoundly unsatisfactory and deeply unfair.”

He said that the limitation period of one year — with a possible 12-month extension granted at the discretion of the CICB — was not public knowledge, a fact unchallenged by legal counsel for the CICB during the appeal hearing.

Sir Christopher said: “The result of this is that applicants for compensation are simply left in the dark as to the existence of a legal guillotine which may preclude any claim.

“None of the appellants before us were aware of a limitation period until their applications were rejected by the board.

“Moreover, the board seems to have made no attempt to ensure that the one, possibly two, year period for making any valid application to it was public knowledge.

“None of them appear to have been told that there was any form of limitation period, and it is not even apparent to us that the prosecuting authorities knew that there was one. Nor was it clear to several of the appellants where an application form would be obtained.

“Matters were made worse by some of the forms in use. The forms to which I refer made it clear that the application would not be considered until all the relevant information was to hand.

“To an ordinary reader that would suggest that there was little point in submitting an incomplete application because it would not be considered until it was complete. What the forms did not say was that, even if the form was incomplete, it had to be submitted within a year of the death or injury.

“It cannot possibly be right to highlight in red the fact that failure to provide all necessary information will delay consideration of the application but conceal the fact that after the expiry of one or, at best, two years, the claim will not be capable of consideration at all. It is the latter fact that should be highlighted in red, when in fact it was hidden from view.”

Sir Christopher added that the time limit was “very short” and was compounded by the fact that applicants were told they should not submit a claim until a conviction had been secured.

Sir Christopher concluded: “I propose that this judgment should be sent to the Minister of Justice and to the board in order that the minister may consider whether an ex gratia payment of compensation should be made to the present appellants/applicants in the amount, to be determined by the board, that they would have been awarded if their applications had been filed in time.”

He added that the minister and the board should consider whether the law was fair and, if not, whether it could be amended to extend the two-year deadline.

The Royal Gazette e-mailed a series of questions to the Attorney-General after Friday’s judgment. No response was received by press time.

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