The Gazette 1993

GAZETTE

L A W B R I E F

GAZETTE MWH DECEMBER 1993

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Dr. Eamonn G. Hall, Solicitor

that the single member was not satisfied with the application and was dismissing it. This decision was subsequently justified in an affidavit by saying that there were no witnesses' statements submitted. In fact, the instructions issued with the relevant form did not contain any provision for witnesses' statements nor did it contain any request for witnesses' statements. Lynch J in the High Court dismissed an application for certiorari and other judicial review remedies. The plaintiff appealed to the Supreme Court. Finlay C J in his judgment in Garvan stated that the fact that witnesses' statements had not been asked for constituted in the particular circumstances a "want and a serious want, of natural justice". The Chief Justice did say that there should be very few circumstances under which the court should intervene by way of judicial review except to correct a final decision from the tribunal such as occurred in the Creedon case. However, the Chief Justice stated that in the particular circumstances of this case, he was satisfied that exceptionally the court should intervene in a particular way. The Chief Justice noted that, in the relevant circumstances, merely to refuse to grant judicial review on the basis that a right of appeal exists would be to do a lot less in his view than render justice to the applicant having regard to the fundamental nature of the want of justice. He, mandamus to the applicant directed to the tribunal that it should as a tribunal of three persons without delay provide a hearing to the applicant in accordance with the scheme of his application for compensation. therefore, in the exercise of his discretion, granted an order of

i O'Flaherty J, in a separate judgment, agreed with the judgment of the Chief Justice. O'Flaherty J mentioned that if a single member of the Criminal Injuries Compensation Tribunal fell into some kind of a routine error, even if it carried major consequences, the correct approach would be that the matter should be appealed to a sitting of the tribunal en banc. A court should not for one moment entertain an application in relation to a mishap that might befall any decision-maker in the course of reaching a conclusion. However, O'Flaherty J believed that the applicant in this case was denied justice, and was denied it in a very fundamental way and that it was a case that did call for the intervention of the court by way of judicial review. The issue of lack of sympathy of a decision-maker arose in the case of R -v- Tower Hamlets London Borough Council, ex parte Khatum, Queen's Bench Division, unreported, September 30, 1993, The Independent (London), October 1, 1993. Sir Louis Blom- I Cooper QC acted as deputy High Court judge. The applicant was a homeless person applying to the local authority for accommodation. The judge held that when being interviewed, an applicant should be treated sympathetically and be given ample opportunity to have present at any interview some person who was able to assist and advise him or her. Sir Louis Blom-Cooper stated that the conduct of relevant interviews was so unsatis- factory and led to so much unfairness in the decision-making process that the decision should be quashed. The court was barely restrained from concluding that the flavour of the process did not reflect a case of an applicant claiming ! Lack of Sympathy Resulting in Judicial Review.

Sympathy and Natural Justice

The importance of a sympathetic approach when dealing with applicants claiming an entitlement to social welfare benefit together with the vital importance of natural justice during the decision-making process of a tribunal have been recently considered in two separate judgments, one by the Supreme Court and the other by the Queen's Bench Division of England and Wales. In the case of Garvan -v- Criminal Injuries Tribunal, Supreme Court, unreported, ex tempore judgments, July 20, 1993, the Supreme Court considered an application for certiorari and for other judicial review remedies in relation to a decision reached by a single member of the Criminal Injuries Compensation Tribunal. The applicant, Robert Garvan, had been assaulted whilst on a public street, suffered from concussion and received damage to his teeth which caused him some distress and, in particular, a considerable j amount of expense. The relevant claim form for the Criminal Injuries Tribunal was filled in with the assistance of the applicant's 1 solicitor and it was sent off to the tribunal. After a substantial period of time, a communication was received and a stereotyped letter stated: "Do you wish to make any further submiss- ions?" The solicitor in question stated that certain travel expenses had been left out and these were included. One year and nine months after the application had been lodged, the | solicitor acting on behalf of the applicant received a notice of a decision by a single member of the tribunal. The decision was to the effect

an entitlement to a social benefit but rather a person being interrogated about some misdeed warranting a probing inquiry.

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