The Supreme Court has allowed Angela Tomlinson’s appeal against the refusal of leave to pursue judicial review over a £592,000 deduction from a criminal injuries compensation award. The case has been remitted to the High Court judicial review list so the substantive challenge can proceed.
The judgment, delivered by Denham J on 19 January 2005, concerned the procedural question of whether Ms Tomlinson should first use the appeal process under the compensation scheme. It did not decide whether the Tribunal was legally entitled to make the deduction.
Ms Tomlinson’s husband died on 20 April 1997 following an assault in a Dublin hotel. She applied to the Criminal Injuries Compensation Tribunal in August 1997. In September 2002, a single Tribunal member found that the application fell within the scheme and awarded compensation, including €30,571.02 and £431,000 sterling after deducting £592,000 from the assessed loss of wages and company car.
The Tribunal’s letter said an appeal would be heard afresh by three members, who could confirm or vary the award or refuse compensation. Ms Tomlinson sought judicial review, arguing that the deduction was unauthorised and beyond the Tribunal’s powers. The High Court granted leave in December 2002, but in March 2004 refused the application, holding that the scheme’s appeal mechanism should first be exhausted. The High Court did not rule on the legal interpretation of the scheme.
On appeal, the Supreme Court considered the alternative remedy alongside the circumstances of the case. Denham J noted that the Tribunal had defended the deduction as authorised under the scheme, while also relying on the appeal process. The judgment said that this gave the appearance that the Tribunal had already reached a view, and that returning the issue to it could require Ms Tomlinson to bring judicial review later if the same position were maintained. The judgment expressly did not find that a three-member panel would actually be biased.
The Court also noted that an appeal would be a hearing de novo and could reopen liability, exposing Ms Tomlinson and her children to the risk of a different decision on whether the claim came within the scheme. It concluded that the legal question about the Tribunal’s authority should proceed by judicial review. The appeal was allowed and the matter remitted to the High Court for the substantive judicial review hearing. No ruling was made on whether the deduction was lawful.