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Notes:
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Reported as [2013]AACR 10 Tribunal jurisdiction – interpretation of section 15(1) of the Tribunals, Courts and Enforcement Act 2007 – whether right of appeal lies to the Upper Tribunal or the Court of Session – application of forum non conveniens doctrine
The claimant alleged that before October 1979 he was the victim of repeated sexual abuse by ES, an unrelated older child, after they were both placed with the same foster mother in England. The claimant later moved to Scotland and claimed criminal injuries compensation. The Criminal Injuries Compensation Authority (CICA) rejected his claim on the basis of the “same roof rule”; it took the view that he and ES had been living as members of the same family. The claimant disagreed with this view and in his appeal to the First-tier Tribunal (F-tT) he stated that ES was not registered at the foster mother’s address, as he was a serving member of the British Army (the incidents occurred either when ES was on leave or at weekends). A F-tT in Scotland issued a strike out warning and thereafter a F-tT Judge in England issued a decision striking out the appeal on the basis that ES’s army service failed to establish any new issue not previously considered and any appeal was unlikely to succeed. The CICA argued before the Upper Tribunal that section 15(1) of the Tribunals, Courts and Enforcement Act 2007 was limited to cases arising under the law of England and Wales (or Northern Ireland) and referred to the law governing the original decision (in this case the claim for compensation). The issue before the Upper Tribunal therefore was whether proceedings for judicial review of the decisions of the First-tier Tribunal could be brought in England and Wales (and in particular before the Upper Tribunal pursuant to section 18 of the 2007 Act), or in Scotland, or in both jurisdictions.
Held, allowing the application and quashing the decision of the First-tier Tribunal, that:
1. as a matter of the ordinary meaning of the statutory language such applications were within the meaning of the phrase: “cases arising under the law of England and Wales”, and there was no circularity in so construing it. It followed that the 2007 Act did not provide for mutually exclusive review jurisdictions in England and Wales on the one hand and Scotland on the other and that the forum non conveniens doctrine applied in determining whether the High Court (and the UT) or the Court of Session should determine a review of a decision when both have jurisdiction to do so (paragraph 30);
2. it was common ground that the Court of Session had supervisory jurisdiction but as the forum non conveniens doctrine applied the convenient forum was the Upper Tribunal (paragraph 4);
3. the F-tT erred in law by failing to consider, or to properly consider, whether: (a) the alleged abuse, or some of it, was inflicted after the alleged abuser had joined the army, and, if so, whether the alleged abuser was then living elsewhere as his main residence or when he was on service, and, if so, whether in either or both of those circumstances he and the claimant were, at the relevant times, living together in their foster home or former foster home, and/or (b) the alleged abuse, or some of it, was inflicted after the alleged abuser had attained the age of 18, and so had ceased to be a child and, if so, whether the claimant, as a foster child, and the alleged abuser, as an adult who had been a foster child of the same foster mother, were, at the relevant times, members of the same family (paragraph 31).
The Upper Tribunal remitted the case to the First-tier Tribunal for reconsideration.
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