The Gazette 1993

GAZETTE

" O f T i

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L A W B R I E F

GAZETTE

MWH

DECEMBER 1993

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Dr. Eamonn G. Hall, Solicitor

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

amount of expense.

The relevant claim form for the

Criminal Injuries Tribunal was filled

in with the assistance of the applicant's

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

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,

therefore, in the exercise of his

discretion, granted an order of

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.

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.

Lack of Sympathy Resulting in

Judicial Review.

The issue of lack of sympathy of a

decision-maker arose in the case of

-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

an entitlement to a social benefit but

rather a person being interrogated

about some misdeed warranting a

probing inquiry.

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