News

15/03/2024

Court of Appeal delivers judgment in significant case concerning recoupment of Human Rights Act damages from awards under the Criminal Injuries Compensation Scheme 2008

News

On 11^th March 2024, the Court of Appeal delivered judgment in R (on the application of AXO, a child, by her litigation friend, JXO) v First-Tier Tribunal (Social Entitlement Chamber) v The Criminal Injuries Compensation Authority [2024] EWCA Civ 226, a significant case concerning the correct interpretation of paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme, which imposes a requirement on a person who has benefited from a payment under that scheme to repay it if they receive a payment from another person “in respect of the same injury”.

Factual background

The appellant was a bereaved family member whose mother had been killed by the mother’s ex-partner. She applied to the Criminal Injuries Compensation Authority (‘CICA’) for compensation and was awarded £25,500. This comprised £5,500 for the Claimant’s bereavement and £20,000 for the loss of parental services she had suffered as a consequence.

Following her award from the CICA, the appellant brought a civil claim against the police, social services, and the probation services in which she alleged breaches of Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’) and sought damages under the Human Rights Act 1998 (‘HRA’). The claim was settled for a total sum of £15,000, with £10,000 of that sum relating to the Article 2 claim and the remaining £5,000 to the Article 3 claim. The Claimant accepted this offer and the settlement was approved at court.

The Criminal Injuries Compensation Scheme 2008 (‘the 2008 Scheme’) permits deduction from CICA compensation, or repayment of compensation already paid, where an applicant has received other payments in respect of the same injury. Specifically, paragraph 48 of the Scheme allows any award payable under the Scheme to be reduced by the full value of any payment “in respect of the same injury” which the applicant has received or to which the applicant has any present or future entitlement, including “a settlement of a claim for damages, compensation or both on terms providing for the payment of money”. Paragraph 49 of the Scheme further provides that: “Where a person in whose favour an award under this Scheme is made subsequently receives any other payment in respect of the same injury in any of the circumstances mentioned in paragraph 48, but the award made under this Scheme was not reduced accordingly, the person will be required to repay the Authority in full up to the amount of the other payment”.

Pursuant to paragraphs 48 and 49 of the 2008 Scheme, the CICA sought repayment of the full sum of the appellant’s damages on the basis that the HRA damages had been paid “in respect of the same injury” as the CICA compensation earlier received.

The appellant appealed to the First-Tier Tribunal (Social Entitlement Chamber). The appeal was dismissed on the basis that the total figure of £15,000 paid in the civil settlement was a “global sum” covering the appellant’s mother’s loss of life. The appellant subsequently judicially reviewed the decision of the Tribunal in the Upper Tribunal, Administrative Appeals Chamber. Permission was granted and the Upper Tribunal held that the First-Tier Tribunal had erred in treating the HRA damages as a global sum. It was found that the £5,000 received in respect of the appellant’s Article 3 claim had not been in respect of the death of the appellant’s mother and therefore could not be recouped. However, the £10,000 received for the Article 2 claim was “in respect of” the death and could therefore be recouped. The appellant appealed to the Court of Appeal.

Court of Appeal judgment

The Court of Appeal found that:

1. The Upper Tribunal erred in law when it concluded that paragraph 49(1) of the 2008 Scheme is not limited to double recovery. The true construction of the words in paragraph 49(1) “in respect of the same injury” is that to be capable of recoupment, damages must duplicate compensation already paid (i.e. the right of repayment is underpinned by the principle of double recovery).
2. A CICA bereavement award is similar to a bereavement award under the Fatal Accidents Act 1976 in that both compensate for non-pecuniary loss. By contrast, an award for loss of parental services under the 2008 Scheme reflects a form of pecuniary loss.
3. ‘Moral damage’ can be inferred in cases where damages for non-pecuniary loss are awarded. However, it does not simply mark a breach of Convention rights; it connotes actual harm or damage. The existence of ‘moral damage’ is insufficient to distinguish a Convention award from domestic law damages. Whether there is “double recovery” in a case depends on the facts and the “overall context” in which the Convention award was made.
4. As regards whether there was “double recovery’ in the present case, the award for loss of parental services, which was in essence an award for pecuniary losses, had no overlap at all with the HRA damages, which were for non-pecuniary loss, and therefore could not be recouped. However, the CICA could seek repayment of the £5,500 bereavement award from the Claimant’s Article 2 damages. Both sums had been paid for the same thing – namely, the appellant’s grief and mental suffering in consequence of her mother’s death.
5. When determining whether there is “double recovery” between CICA awards and Convention damages, the general approach should be as follows. The first question is whether either or both awards contained an element for pecuniary loss. If so, then the comparison between them should be relatively straightforward. Whether there has been “double recovery” of non-pecuniary losses will depend on the “overall context” of the case. A broad-brush approach should be taken. In the context of Article 2, there is a difference between Convention awards for violations of human rights which bear a “close factual nexus” with the death, and those where the violation(s) led to discrete harm and loss. If it is not possible to reach a conclusion about whether there has been overlap, the default should be that the CICA cannot seek repayment from the Convention award.

Click here to read the full judgment.

Victoria Webb and Turan Hursit were instructed on behalf of the CICA (the Interested Party) in the Court of Appeal. Victoria Webb also acted as counsel for the CICA in the Upper Tribunal (Administrative Appeals Chamber).