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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 28 JUL 2014

Colefax (Appellant) v First Tier Tribunal (Social Entitlement Chamber) & Anor (Respondent) & Criminal Injuries Compensation Authority (Interested Party) [2014] EWCA Civ 945

Colefax (Appellant) v First Tier Tribunal (Social Entitlement Chamber) & Anor (Respondent) & Criminal Injuries Compensation Authority (Interested Party) [2014] EWCA Civ 945
Court of Appeal, Civil Division

Arden LJ, Black LJ, Briggs LJ

8 July 2014

Summary

The Criminal Injuries Compensation Authority (CICA) had been entitled not to waive the two year time limit for an application under the CICA scheme, even though the applicant’s epilepsy was diagnosed after two years, as he had suffered other serious injuries and should have brought a claim for these initially.

Detail

The applicant had suffered head injuries in a violent assault and two years later was diagnosed with post-traumatic epilepsy. He then made an application for compensation to the CICA. The application was rejected on the basis that the applicant had suffered some other serious injuries and, although the diagnosis of epilepsy had been made after the two year time limit for making an application, he had suffered other serious injuries and a claim could have and should have been lodged earlier. The applicant appealed this decision.

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The Tribunal considered Paragraph 18 of the scheme which dealt specifically with the time limits for an application. A claims officer may waive the two year time limit only where it was practicable to do so (paragraph 18(a)), and paragraph 18(b) required the applicant to show that it would not have been reasonable to expect him to make an application for compensation for other injuries within the two year time limit.

The Tribunal read paragraph 18(a) as requiring that an applicant prove only that it would not have been “reasonable to expect” him to apply in time. This meant that the applicant must show that, even if he had suffered some immediate but apparent relatively minor injury, it was reasonable for him in his particular circumstances not to bring a claim. The burden was on the applicant to show that he did not fail to comply with a reasonable expectation that he would pursue compensation in a timely manner. Here, given the applicant’s other injuries, this was not the case.

Comment

The decision here may have been influenced by the need for finality in a claim. The Tribunal held that the scheme’s power to reopen cases where there was a late manifestation of an injury (paragraphs 53, 56 and 57) was limited even where applications were made within the two year time limit, as the scheme recognised the desirability of finality in compensation claims and a need to protect the scheme from the expense of investigations regarding a deterioration after an award had been made.
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