The High Court has allowed a mother to add a new European Union law ground to her challenge over the refusal of compensation following her daughter’s murder.
Mr Justice Allen made the order on 21 January 2019. It gives the applicant liberty to amend her statement of grounds in the terms of a draft exhibited to an affidavit. The court did not decide whether the new ground, or the underlying challenge to the compensation scheme, will succeed.
The case concerns the Criminal Injuries Compensation Tribunal’s decision to refuse the applicant’s claim. The Tribunal’s appeal decision, made on 9 January 2017, relied on article 10 of the scheme, which excludes cases where the offender and victim were living together as members of the same household.
The applicant obtained leave in May 2017 to seek judicial review of that decision, arguing it was unsupported by evidence and based on a mistaken interpretation of article 10. Her permitted grounds also included claims about fair procedures, access to compensation in the Czech Republic, and the scheme’s compatibility with European and human rights obligations.
In June 2018, after senior counsel identified a further proposed ground, the applicant sought to argue that the scheme breached Article 47 of the EU Charter and the effectiveness of EU law by failing to guarantee fair and appropriate compensation as required by Article 12 of Directive 2004/80/EC. The respondents opposed the amendment, pointing to the delay and arguing that it introduced a new ground outside the time limit.
Justice Allen said an application to amend judicial review grounds outside the time limit must be justified, including by an explanation for not raising the ground earlier. But it should not simply be treated as a late application for leave. He accepted oversight by the applicant’s lawyers as the explanation in this case.
The judge also considered that the proposed point was a legal argument and that the respondents had abandoned a suggestion that further affidavits would be needed. He took account of delay by the respondents in filing opposition papers: more than nine months of the period between the grant of leave and the proposed amendment could not fairly be attributed to the applicant.
The order allows the amendment only. The original judicial review challenge remains to be determined.