Factual and Procedural Background
The Appellant claimed that during a burglary on 25 May 1991 she was assaulted, raped, and subjected to buggery. She applied on 20 November 1991 to Entity A (a statutory compensation scheme) for an ex-gratia award. Entity A refused the application on 31 August 1993, confirming its refusal by letter on 9 December 1993.
The Appellant sought judicial review but was well outside the three-month period prescribed by Rules of the Supreme Court Order 53 rule 4(1). On 14 February 1995 Judge Carnwath granted leave ex parte. At the inter partes hearing Judge Popplewell refused relief, holding that the application was out of time. The Court of Appeal dismissed the Appellant’s appeal on 16 May 1997. With permission, the Appellant appealed to the House of Lords; the judgment summarised here was delivered on 25 March 1999.
Legal Issues Presented
- Whether the application for judicial review should have proceeded despite being brought long after the expiry of the three-month time limit.
- If so, whether there were grounds to quash Entity A’s decision because it was reached on an unfair or erroneous factual basis.
- If grounds existed, whether the appropriate remedy was to quash the decision and remit the claim to Entity A for fresh consideration.
Arguments of the Parties
Appellant's Arguments
- Judge Popplewell lacked jurisdiction to revisit the extension-of-time point because Judge Carnwath’s ex-parte grant of leave had implicitly extended time.
- Entity A’s decision was vitiated by material error of fact and/or procedural unfairness, because the Board heard an inaccurate summary of a police doctor’s findings that undermined her credibility.
- The absence of the doctor’s actual report, and the Board’s failure to adjourn to obtain it, breached natural justice.
- The case fell within the line of authority allowing judicial review where a tribunal acts on perjured, misleading or incomplete factual material.
Respondent's Arguments
- Leave should never have been granted: no “good reason” existed for extending time under Order 53 rule 4(1), and the Court could reconsider that matter at the substantive hearing.
- Entity A owed no duty to obtain or produce evidence for an applicant; the onus of proof lay wholly on the claimant under the compensation scheme.
- Any factual inaccuracy resulted from an innocent mistake by a police witness, not misconduct by Entity A, and therefore could not justify quashing the decision.
- The line of “fraud, collusion or perjury” authorities did not apply because no one before the Board had acted fraudulently.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Dairy Produce Quota Tribunal, Ex parte Caswell [1990] 2 AC 738 |
Interaction between Order 53 r 4(1) and Supreme Court Act 1981 s 31(6); possibility of extending time. |
Confirmed that both provisions can be read together; used to interpret the judge’s powers on leave and delay. |
| Ex parte Worth [1985] STC 564 |
Whether a grant of leave prevents the respondent raising limitation at the substantive hearing. |
Overruled; the House held Judge Popplewell had no jurisdiction to reopen the time point. |
| Patterson v. Greenwich LBC (1993) 26 HLR 159 |
Obiter support for Ex parte Worth. |
Not followed; cited to show previous but now rejected practice. |
| R v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864 |
Board’s susceptibility to judicial review. |
Relied upon as authority that Entity A’s decisions are reviewable. |
| R v. Chief Constable of Cheshire, Ex parte Berry (unreported, 30 Jul 1985) |
No duty on Board to seek further evidence. |
Cited in Court of Appeal; distinguished by the House on fairness grounds. |
| R v. Criminal Injuries Compensation Board, Ex parte Parsons (unreported, 17 Jan 1990) |
Duty of Board limited to fairly deploying evidence obtained. |
General principle accepted but held insufficient on the specific facts. |
| R v. Criminal Injuries Compensation Board, Ex parte Milton [1997] PIQR P74 |
Limits of Board’s obligations to adjourn or obtain evidence. |
Considered; House found additional fairness duties arose here. |
| R v. Leyland Justices, Ex parte Hawthorn [1979] QB 537 |
Judicial review where decision based on fraud or perjury. |
Cited to support an “analogy to fraud” ground for review. |
| R v. Scally [1991] 1 QB 537 |
Extension of Hawthorn principle to innocent but material misrepresentation. |
Formed part of intellectual backdrop; House adopted the unfairness rationale. |
Court's Reasoning and Analysis
1. Jurisdiction to Consider Delay
Judge Carnwath’s order “Leave granted” necessarily implied an extension of time under Order 53 r 4(1). Therefore Judge Popplewell lacked jurisdiction at the substantive hearing to revisit whether “good reason” existed. Section 31(6) empowers a court to refuse relief for detrimental delay, but only if raised as a separate question; it cannot be used to undermine an earlier, unconditional grant of leave.
2. Procedural Fairness
Entity A put the onus of proof on the Appellant, which was correct under the compensation scheme. However, the Board’s conclusion that the Appellant was not a victim of a crime of violence rested heavily on oral evidence from a police witness who (innocently) mis-reported the findings of the examining doctor. Neither the Board, the police witness, nor counsel enquired whether the doctor’s report existed, despite knowing the examination had occurred. The undisclosed report stated that the anal findings were consistent with buggery—directly contradicting the oral evidence.
Given the centrality of credibility and medical corroboration, the House held that failure to secure or call for that report, or at least adjourn to obtain it, created objective unfairness amounting to a breach of natural justice. No allegation of fraud was required; it was enough that an innocent but material factual mistake had misled the tribunal.
3. Remedy
Although events occurred long ago, the decisive material (the doctor’s report) is documentary. Injustice should not stand uncorrected. Accordingly, quashing the decision and remitting the matter to Entity A is the appropriate course.
Holding and Implications
APPEAL ALLOWED; DECISION OF ENTITY A QUASHED AND REMITTED FOR RECONSIDERATION.
Direct Effect: The Appellant’s compensation claim will be reheard by Entity A, this time with the police doctor’s report available.
Broader Implications: The House clarified (a) the proper interaction between Order 53 r 4(1) and Supreme Court Act 1981 s 31(6); (b) that once leave is unconditionally granted, time-limit objections cannot be reopened at the substantive hearing; and (c) that a tribunal’s reliance on materially mistaken but innocently given evidence can constitute procedural unfairness requiring judicial intervention. No new cause of action was created, but the judgment emphasises rigorous observance of natural justice where public bodies depend on police evidence.