CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 août 2005

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 29 September 2004, Having deliberated, decides as follows:                 THE FACTS The applicant, C.B., is a British national who was born in 1994 and lives in Frome. She is represented before the Court by FDC Solicitors, practising in Frome. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was born on 9 December 1994. On 31 November 1995, the applicant was assaulted by her mother’s boyfriend. She suffered severe injury – left hemiplegia, blindness and severe mental impairment. She required full time care provided by her grandparents who were appointed her legal guardians. On 16 October 1997, the applicant’s grandparents made an application on her behalf to the Criminal Injuries Compensation Authority ("CICA"). They instructed solicitors to present her claims to the Authority. The solicitors obtained inter alia medical reports and reports as to her future needs (care, accommodation, transport, holiday etc). The fees exceeded GBP 35,000. Pursuant to the Criminal Injuries Compensation Scheme 1995, costs of representation in pursuing a claim were not recoverable (paragraph 18). By letter dated 20 November 2002, CICA informed the applicant that they were minded to make an interim award of GBP 320,000. The applicant’s solicitors responded by insisting that they issue a final award. By letter dated 28 February 2003, CICA informed the applicant that they had made a final award of GBP 406,246. They rejected the large claim for future costs once she became an adult on the basis that these would be largely met by the local authority. In June 2003, CICA informed the applicant that they had reviewed the award and would increase it to the statutory maximum of GBP 500,000. The applicant’s solicitors and CICA have been in subsequent negotiation concerning the type of trust that should be set up to administer the fund. Apparently the money has yet to be transferred. Meanwhile, in August 2002 an action was taken on her behalf challenging the compatibility of paragraph 18 of the Scheme with Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1. On 22 May 2003, the High Court rejected the applicant’s claims. Mr   Justice Mitting noted: "It has never been in doubt that her claim is well-founded and cannot be subject to any reduction on the grounds of her conduct or character. The only issue for the Authority to decide has been the amount of compensation which should be awarded to her. On any view it was always going to be substantial." He found that the obligation for an applicant to make out his case did not require him to obtain at his own expense all the professional reports necessary to prove the nature and extent of his injuries and their impact upon his life and the cost of alleviating it. Once he had demonstrated significant injury and that cost would be incurred in alleviating it, the burden of investigating both elements fell on the Authority. Under paragraph 18, the Authority were, however, under no obligation to reimburse costs of representation, including drafting and submitting the application, advising on the application, negotiating with the Authority and responding to the Authority’s queries. Although a well-founded claim to compensation under the Scheme was acknowledged by all parties to be a "civil right" under Article 6, he did not consider that the requirement under the scheme for applicants, who chose to obtain legal representation to assist in their claims, to bear those costs either restricted their ability to apply to the Authority or deprived them of a fair determination of their claim. He rejected the claim of the discriminatory effect on the applicant’s pecuniary rights due to her position as a severely handicapped child, considering that the applicant was in the same situation as anyone with a complex claim who would be likely to want to seek some professional legal advice. Further the applicant’s grandparents could make any decisions which an adult could make. On 11 February 2004, after a hearing, the Court of Appeal rejected the applicant’s appeal. It noted that meanwhile the Authority had accepted that they should pay for various medical and expert reports and commented strongly on the delay in making a final award, where the severity of her injuries plainly fell in the highest tariff category. It seemed to have been principally because of the Authority’s dilatoriness that the applicant’s solicitors became engaged in establishing each element of her claim and bespoke specialists’ reports and counsel’s advice in order to do so. Lord Justice Sedley noted that the parties agreed that Article 6 applied to the scheme but considered that as the scheme had operated in this case no violation of the applicant’s rights arose:   "... ought the Scheme, in order to comply with C.’s Article 6 § 1 right to a fair hearing provide for the reimbursement of her solicitor’s full bill of costs? This now exceeds GBP 28,500; it covers a wide range of inquiries and the fees of leading and junior counsel. C. has never faced the prospect of being unable to pay these costs, and because of the willingness of her solicitors to defer payment her lack of funds and that of her grandparents has not impeded her access to the CICA. I am less impressed by Mr Crow’s argument (though it found favour with Mitting J) that, so long as she has competent adults to act for her, C. is at no disadvantage at all. Given the unnecessarily complex course taken by the CICA, the grandparents were as much in need of advice and representation as C. was. But C.’s situation, even so, is not analogous with Mrs Airey’s, nor with that of an impecunious claimant needing to establish a primary entitlement. Her situation is that of a person whose right of access to the CICA is recognised and effective (though impeded by prevarication) but whose carers, very reasonably, want to ensure that the award she obtains is as full as it should be. To that end they have committed a part of the eventual fund to obtaining representation. It is the intent of the Scheme that where this happens it is not to be at the CICA’s expense. That the Scheme could have provided otherwise is clear; but it does not follow that it was bound to provide otherwise in order to give effect to C.’s Convention right ... In my judgment it has not been shown that the Scheme invades C.’s human rights in this regard. It diminishes her award by the cost of her representation; but while many people would regard this as unfair, it does not deprive her of the possibility of a fair hearing within the meaning of Article 6 § 1..." On 26 July 2004, written confirmation was received that the House of Lords refused leave to appeal finding no arguable point of law of general public importance. B.     Relevant domestic law and practice 1.     Criminal injuries compensation   Compensation for persons who suffered criminal injuries was provided for originally by an exercise of the Royal Prerogative. The modern statutory scheme was set up under the Criminal Injuries Compensation Act 1995. Under section 1(1), it is provided that: “The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.”   At the relevant time, the Criminal Injuries Compensation Scheme 1995 laid out the applicable rules. Paragraph 18: "It will be for the applicant to make out his case ... Where an applicant is represented, the costs of representation will not be met by the Authority." Paragraph 20: “Where a claims officer considers that an examination of the injury is required before a decision can be reached, the Authority will make arrangements for such an examination by a duly qualified medical practitioner. Reasonable expenses incurred by the applicant in that connection will be met by the Authority.” Human Rights Act 1998 Section 6(1) provides: “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” Section 8 provides: “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order, within its powers, as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.” COMPLAINTS The applicant complains under Article 3 of the Convention that CICA withheld compensation from her for more than seven years, prevaricating and increasing the burden of her carers. The applicant complains under Article 6 of the Convention that she should have been given funding to pursue her case against CICA as she was a child, the case was complex and CICA was prevaricating. The applicant complains under Article 1 of Protocol No. 1 that her right to compensation has been unlawfully diminished by the authority’s action. The applicant further complains under Article 14 that she has suffered unequal treatment as a competent adult injured in an assault can obtain compensation without the need for representation and will therefore be able to enjoy the full value of his award. THE LAW 1.     The applicant, a severely injured child, complains that her compensation was withheld by the prevaricating action of the CICA, invoking Article 3 of the Convention which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court notes that there is no question that C.B. was prevented from obtaining any necessary treatment or care due to the delay in the compensation proceedings. Nor is it apparent that she has participated in, or been aware of, the procedures to any significant degree. The Court does not doubt that C.B.’s grandparents, her legal guardians and full-time carers, have borne the brunt of any frustration or uncertainty or stress involved. Notwithstanding therefore the criticisms levied against the CICA’s handling of the case, the Court finds no indication that C.B. may claim to be the victim of any treatment that can be classified as inhuman or degrading within the meaning of Article 3 of the Convention.   2.     The applicant complains that legal or other costs incurred in pursuing her compensation claim are not recoverable or otherwise funded, invoking Article 6 of the Convention which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”   The Court notes that the criminal injuries compensation scheme in the United Kingdom no longer provides ex gratia awards on a discretionary basis but has been put on a statutory footing. In the proceedings in this case, the parties agreed that the right involved was a “civil right” within the meaning of Article 6 § 1 of the Convention and both the High Court and Court of Appeal approached the case on the basis that Article 6 was applicable. The Court will do the same in examining whether paragraph 18, in excluding any funding of costs of making a claim, has deprived the applicant of a fair hearing of her claim to criminal injury compensation. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court. The question whether the provision of legal aid, or any other form of funding or reimbursement of legal costs, is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively ( Airey, § 26; McVicar, §§ 48 and 50; P., C. and S. v. the United Kingdom , no. 56547/00, § 91, ECHR 2002-VI; and also Munro v. the United Kingdom , no. 10594/83, Commission decision of 14 July 1987, Decisions and Reports 52, p. 158 and most recently Steel and Morris v. the United Kingdom , no. 68416/01, § 61, ECHR 2005 ‑ ...). While there is no doubt of the importance of compensation for securing the applicant’s welfare and future needs and the procedure adopted by the CICA was criticised as unnecessarily complex, the Court recalls that the applicant’s legal guardians were able to instruct solicitors to put forward her claims and protect her interests in the proceedings. It appears that the solicitors have not required payment to date and that it is accepted that their fees will be recouped from the eventual award. As it was anticipated from the earliest stages that the award would be at the maximum end of the statutory scale, there was very little doubt, if any, that the fees would be covered. It cannot therefore be said that the applicant was prevented from obtaining legal representation, or effective legal representation, by the fact that the Scheme did not itself cover legal fees incurred in making a claim. The solicitors obtained the reports necessary to substantiate the full extent of her injuries and needs (which fees are likely to be recoverable) and succeeded in duly obtaining the maximum award possible, namely GBP   500,000. Nor since the estimated legal fees are some GBP 30,000 can it be said that the applicant’s access to court was thereby deprived of any meaningful content. In the circumstances, there is no appearance that paragraph 18 of the Scheme has deprived the applicant of a fair determination of her claims. Whether or not that provision could in another case effectively prevent an applicant from obtaining representation or have the practical effect of depriving the applicant of any benefit of a claim does not fall to be decided in this application. The Court therefore concludes that there is no appearance of a violation of Article 6 § 1 in the present case. This complaint must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.   3.     The applicant complains of the delay in issuing her award of compensation, invoking Article 1 of Protocol No. 1 which provides in its first sentence; “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ...” The Court recalls that the applicant’s grandparents lodged a claim with the CICA on 16 October 1997. A final award was issued in June 2003. Her representatives state that so far only some GBP 8,000 have been paid out. The Court observes that the courts made negative comments on the prevaricating procedure adopted by the CICA and it is indeed striking that in a case where there was apparently no doubt that a large award would be made that progress has not been more expeditious. However, it appears from the materials in the file that the parties have been in correspondence about the terms of the trust which is to be set up to administer the large award. The grandparent’s solicitors have been making comments on the drafts. It is also apparent that they have not made any request for any interim payments and have, on occasion, refused the offer of such payments, not regarding such as necessary. There is no indication therefore that the applicant is in fact suffering any prejudice from the lack of payment of the final award. In any event however, it would have been open to the applicant to make complaint concerning any prejudice or excessive delay to the courts, invoking the relevant provisions of the Convention under the Human Rights Act 1998. This has not been done. The Court considers that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.   4.     Finally, the applicant invokes Article 14 of the Convention alleging unequal treatment as she has to obtain representation to claim an award whereas an adult does not. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Court notes that the domestic courts rejected the applicant’s arguments under this provision. It was pointed out that the applicant is represented by her grandparents who are able to do for her whatever an adult could do on his own account. If they needed lawyers to advise them, this was because of the complexity or importance of the applicant’s claim and an adult with such a claim would have had a similar need of representation. The Court is similarly not persuaded that the applicant has been subject to a difference in treatment which could constitute discrimination under Article 14 of the Convention. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Josep casadevall   Registrar   President