The Court of Appeal has ordered the Criminal Injuries Tribunal to make available to Paul Doyle and Gary Kelly 25 decisions in which paragraph 14 of the Criminal Injuries Compensation Scheme was considered, with redactions to prevent parties being identified.
The order was made in a judgment dealing with final relief and costs after the court’s December 2020 decision on the substance of the appeals. The court said the decisions could be provided by publication on the Tribunal’s website or by sending them to the appellants. It did not prescribe a method or direct the Tribunal to publish all its decisions.
The court had previously held that the appellants’ inability to access information about how paragraph 14 had been applied breached their right to fair procedures and/or failed to provide effective protection of their EU law right. Paragraph 14 allows the Tribunal to consider a claimant’s “conduct, character and way of life”. The court rejected the request for access to all relevant decisions since 2005, concluding that a narrower set of decisions would be sufficient to vindicate the appellants’ rights. The 25 decisions must include cases where paragraph 14 was considered whether the outcome was no award, a reduced award or a full award.
The court dismissed the other substantive claims. It had rejected the claim that EU law required legal aid or an award of costs for a successful Tribunal application, and held that challenges concerning the exclusion of pain and suffering and the application of paragraph 14 to the appellants were premature because the Tribunal had not yet decided their claims. It also rejected the challenge to paragraph 14’s inclusion in the Scheme.
On costs, the court treated the case as sufficiently complex for costs to be apportioned by issue. Doyle and Kelly each may recover 33% of their costs in the appeal and High Court proceedings. The respondents may recover 67% of their costs from each appellant. For Kelly, specified brief, court attendance, instruction and legal-submission fees are excluded from both sides’ recoverable costs.
The court also ordered costs of the motion to convert the proceedings to plenary form in favour of the respondents, saying the motion was too late to be properly considered. Costs are to be adjudicated if the parties do not agree.