EWCA Civ 234, but the situation is still far from ideal.
In a civil case a claimant’s solicitor would be in a position, subject to the restrictions of the CPR, to commission whatever expert evidence might be necessary in the knowledge that if the case was successful and it was reasonable for a report to be obtained, then the cost would be recoverable. In a criminal injuries case they do not have that freedom. Consequentially they cannot push the case along as they might otherwise like, without at least bearing in mind the potential cost to the applicant who will have to pay the costs of any report not agreed by the CICA. Careful choice of an expert is crucial to avoid the CICA deciding to reject a report and commission their own evidence.
Whether dealing with the remaining cases under the old CICB Scheme or applications under the 1996/2001 scheme, a resounding lesson that I have learned is that when dealing with the CICA, persistence pays. Do not be afraid to challenge assumptions or approaches adopted by the CICA. I have found that they are often made without due regard to an applicant’s particular circumstances or the actual facts of the case. The claims officers making the decisions are quick to interpret any ambiguity against an applicant. Even if it means taking the case to appeal, the applicant often wins when the point is argued before a panel.
Do not be afraid to chase the CICA regularly and repeatedly, even to the point of being a nuisance. Whilst it might not work in other cases, often with the CICA the louder you shout the more likely you are to be heard and the more likely your case is to be dealt with quickly rather than if you wait for the CICA to contact you.
A lesson that came out of a case of mine, Re: T (see PI Focus case notes, May 2008) is that the wording of the scheme should not be taken too literally. The more CICA experience I have the more it becomes apparent that in the vast majority of cases decisions are made at the discretion of the claims officer. Generally, unless challenged they will have been trained to exercise their discretion against an applicant when looking at both eligibility and quantum.
The case in point, Re: T, was an application under the CICB scheme. My client, the applicant had been the victim of violent rape in 1980. She was threatened and raped at knifepoint in an alleyway near her home having been followed by a stranger from the tube station. She sustained lacerations to her hand (defence wounds), contracted pelvic inflammatory disease which she continues to suffer from to the present day, and a severe form of post traumatic stress disorder (PTSD) as a result of the rape. She was awarded the sum of £5,000 by the CICB in 1981.
Initially, although severely traumatised by the rape, the applicant did her best to get her life back on track and tried to return to some form of normality. She returned to her job as a primary school teacher, which she loved, and attempted to continue as normal for a number of years.
Unfortunately she was unable to resume any sort of physical relationship with her long-term partner. She began to suffer severe depression and low self-esteem following the rape, and eventually the relationship broke down.
Over the next few years the applicant’s career became the one thing that kept her going, but it took all her energy and resolve and she had no life outside work. She withdrew from family and friends and became increasingly isolated. She tried to forge new friendships and relationships but these attempts failed and therefore she was unable to have a family, which she had longed for.
She managed to continue working as a teacher until 1997, with increasing difficulty and with lengthy periods off work due to her psychological ill health and recurrent pelvic inflammatory disease. Eventually her psychological condition deteriorated to a point where she was unable to continue working as a teacher and she resigned her position. Having left teaching she undertook some retraining and aimed to find data processing work, which enabled her to work at home and avoid social contact. Her symptoms had deteriorated to the point where she was could not travel by public transport, was fearful of strangers and indeed of any social situation. Eventually, she was unable to manage even this work and was made redundant. Her doctors then deemed her medically unfit to return to work due to her psychological symptoms.
The applicant was eventually diagnosed as suffering from severe PTSD, which had become chronic despite intensive treatment and intervention over the years. It was considered that as the PTSD was chronic to such a degree that it could be classified as an “enduring personality change after a catastrophic experience”. Symptoms over a 27 year period included anxiety, flashbacks, panic attacks, depression, avoidance type symptoms, loss of confidence and a general state of fearfulness.
As a consequence of the deterioration in her condition in 2004 the applicant applied to the CICB to reopen her case on medical grounds on the basis of a “serious deterioration” in her condition allowed for under paragraph 26 of the 1979 scheme. The provision for a medical re-opening under paragraph 26 stipulates that the CICB will consider reopening a case but only in the event that a further award can be made relatively quickly and without the need to commission a great deal of additional evidence.
This case was re-opened 23 years after the initial award was made, which may have made some practitioners wary of reopening a case after such a lapse of time. It became apparent on taking initial instructions that a significant amount of additional evidence was going to be needed to finalise this application. Again on a literal interpretation of the scheme the wording of paragraph 26 might have discouraged some practitioners from taking the case on at all.
The evidence in this case took considerable time to gather partly due to the length of time since the original incident and partly due to difficulties I faced at times obtaining instructions from the applicant. As a consequence of her condition she often found it very difficult to engage and deal with the issues facing her, and would ‘go to ground’ for weeks and months at a time. More than once I found myself on the verge of abandoning the case for want of instructions.
In fairness to the CICB, they were patient and sympathetic in a case which took much longer to finalise than they or I anticipated at the outset. After a great deal of persistence on my part and a great deal of effort and strength of character on the part of the applicant the case was listed for final hearing in February 2008.
As the case fell under the CICB Scheme the panel were able to hear submissions from counsel that the injury should be valued by reference to common law principles. This meant that both counsel and the panel were able to have regard to the applicant’s particular circumstances and the particularly devastating affect that the rape had had on her life. In addition they were able to make an award for loss of congenial employment.
The applicant was awarded £65,000 in respect of general damage, which included the award for loss of congenial employment. By way of comparison under the current scheme, on a very best case scenario the most that the applicant could have hoped to recover would be £33,000, the highest tariff award for sexual assault of an adult.The award might even have been in a lower bracket and she would not have been awarded anything in respect of loss of congenial employment.
In addition, the applicant was awarded special damage totalling £506,037. This comprised of £220,951 in respect of past loss of earnings and £93,786 for future loss of earnings on the basis that the applicant had what amounted to an extremely limited earning capacity in the future. She was awarded £146,300 for pension loss on the same basis. In addition the panel adopted a broad brush approach in terms of past and future medical and other expenses, awarding £20,000 and £15,000 respectively on the basis that there was, due to lapse of time, a lack of documentary evidence particularly with regard to past loss.
Had the matter been dealt with under the tariff scheme the maximum award payable to the applicant would have been £ 500,000. The basis upon which future loss of earnings would have been valued is slightly different, not being on the common law basis. As such the applicant might well have lost out in terms of her future loss claim too.
What is apparent is that had the application been made under the current scheme then the applicant would not have been fully compensated for her loss. It is generally accepted, particularly in maximum severity cases, that there is a gulf often running into millions of pounds between what the applicant will be awarded under the current scheme and what they might have received under the old CICB scheme where awards were made more or less on a common law basis.
It is perhaps not so readily appreciated that cases such as Re.T might also fall into that category. In this case the applicant received a global award of £571,037. Under the current scheme at best her claim would have been limited to £500,000 as an absolute maximum. She would quite possibly have received significantly less along with many other applicants who every year, by virtue of the current scheme, are not being properly compensated for their loss.
My original point about persistence has been proved to be right in many respects in relation to the case of Re: T and others past and present. Persist with your client but more importantly persist with the CICA. Don’t be afraid to pursue an application where at first glance you might turn the client away for lack of prospects. When you know how, dealing with criminal injuries work from shaken babies and other maximum severity cases right down to cases of a much lower value can be rewarding both in terms of the difference you can make for your client and financially for your firm.
GLP SOLICITORS, BURY
(Originally published in “APIL PI Focus” Vol 18 Issue 10)