[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Green, R (on the application of) v Criminal Injuries Compensation Appeals Panel [2008] EWHC 3501 (Admin) (13 October 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3501.html Cite as: [2008] EWHC 3501 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13th October 2008

1. MR JUSTICE STADLEN: This is an application for judicial review on the part of the applicant, Mr Brian Green, against a decision of the Criminal Injuries Compensation Appeals Panel in which it dismissed his appeal against the refusal of an application which he had made to the Criminal Injuries Compensation Authority for compensation for injuries sustained in an assault on him on 7th July 2001. The respondent, the Criminal Injuries Compensation Appeals Panel, provided no grounds of defence in its acknowledgment of service and indicated that it did not wish to be represented at this hearing or to make any submissions, save only in the event that the application is dismissed in relation to costs, as to which written representations were supplied to the court. The application was advanced before me by Mr Laprell, counsel.
2. The chronology can briefly be summarised as follows. On 7th July 2001, the applicant, Mr Brian Green, became involved in an altercation outside a bar called the Central Bar in Horwich. The altercation, which took place outside the bar, was between the applicant and two men called Darren Lane and Ian Fitzgerald. The applicant had been seeking to find out where his former wife, Mrs Green, had gone, she having been in the bar earlier that evening. I will come to the details of the incident in greater detail, but for present purposes it is sufficient to indicate that following provocative words by one of those two men, Mr Green, the applicant, struck a blow at one of them which led to a fight.
3. Thereafter, Mr Green ran away from the bar and was chased by Mr Lane and Mr Fitzgerald. There was then a further incident in which Mr Green sustained blows from Mr Lane and Mr Fitzgerald, as a result of which he sustained physical injuries, including some kind of brain damage of a lasting nature. It was in respect of those injuries that Mr Green sought compensation from the Authority.
4. There was a written application on 16th January 2003 to the Authority which was refused in a written review decision dated 3rd September 2004. Mr Green then appealed to the Appeal Panel. There was an oral hearing on 26th October 2006 in front of a two person panel comprised of Mr G and Dr K. At the conclusion of that hearing, the Panel indicated that the appeal was dismissed and Mr Gee, on behalf of the Panel, gave oral reasons for the dismissal. There was dated 26th October 2006 a final decision notice called "Final Decision Notice -- Dismissal of Appeal", indicating that the appeal had been dismissed, that the Appeal Panel had decided that Mr Green was not entitled to an award of compensation under the Criminal Injuries Compensation Scheme, and indicating that "the decision and the summary of the reasons for the decision were given orally at the hearing today".
5. On or about 26th January 2007 the applicant issued a claim form seeking judicial review of that decision. I say "on or about" because the form itself does not give the date on which it was issued, and although it refers to 31st January 2007 as having been the date of a pre-action protocol letter, counsel indicated to me that that must have been a typographical error since the period for issuing the claim form would have expired by the end of 31st January 2007 and it was in fact not out of time. Nothing turns on the date on which the claim form was issued.
6. While the application for permission to judicially review was awaited, counsel prepared a note which was sent to the court in respect of dealing with written reasons for the decision which were issued on 29th March 2007 and signed by Mr Gee, the Chairman of the Panel. On 20th June 2007 permission was refused by Mr Rabinder Singh QC, but on 13th November 2007 at a renewed oral hearing application permission was granted by Ouseley J, who said the following, among other things:

"The findings of the Panel are not very detailed but they must have had in mind the guidance at paragraph 16 of the 2001 Scheme, bullet points 1 and 2 [I shall refer to those later]. It had been accepted that there was a proper case for a reduction in the award because of what had been done by the claimant but not that there should be no award.

Whether the incident is seen as one or whether it is seen as two, there, is in my view, an arguable case that this falls outside the scope of the guidance which would preclude an award where someone starts a fight but it takes an uglier turn than he had allowed for when initiating the violence. Because, as I say, whether the scene has one or two incidents, he left the scene, he was chased, the chase took some time and he was then subjected to an assault in which it could not be said that he was the aggressor. This makes it arguable that it falls outside the contemplation of bullet points 1 or 2. At all events, it is a situation that arguably calls for more bespoke reasoning than has been provided. Accordingly, I take the view that there is an arguable error of law by the Criminal Injuries Compensation Authority and I grant permission."

7. In summary, the submissions made to the Appeal Panel by Mr Laprell, who appeared both before the Panel and before me, can be summarised as follows. First, he accepted that the fact that Mr Green had struck a blow which had been the first event in the series of events leading to his injury meant that he was not eligible for a whole 100 per cent award, to which he might otherwise have been entitled because of his injuries.
8. However, secondly, there were two factors which meant that the applicant should have been entitled to a reduced award. Those two factors were, first, that the first blow, which it is accepted he struck, was one that was struck as a result of provocation; the provocation being that Mr Lane, in answer to the applicant's question to Mr Fitzgerald as to whether he had seen his wife, had answered something to the effect of "She's gone shagging Paul Lancaster".
9. The second factor on which Mr Laprell relied as entitling the applicant to a reduced award was that the fight, which he accepted he had not only initiated but had voluntarily participated in outside the bar, had in effect come to an end, that he had desisted from violence, and that he had run away so that by the time the final incident occurred in which he sustained his injuries, the following could be said: (1) the first incident had come to an end; (2) he had voluntarily desisted from the violence in that first episode; (3) the blows which caused him his injuries were the result of an assault by Mr Lane and Mr Fitzgerald, as to which (a) it could not properly be described as a fight, because Mr Green had not thrown any punches or taken part in any act of violence himself, and (b) it could not properly be said that he was the aggressor.
10. The only record that exists, or at any rate is before the court, as to the oral reasons that were given at the conclusion of the hearing on 26th October 2006 is in the form of paragraph 6 of the grounds in support of the application for judicial review which, I am told by Mr Laprell and I accept, is based on his and his instructing solicitor's notes of what was said by the Chairman on that occasion.
11. The grounds on which the legality of the decision is impugned, which evolved and were refined in the course of argument, can be summarised as follows. First, it is submitted that inadequate reasoning and insufficiently detailed reasoning was given by the Panel to enable the applicant to understand the basis upon which his appeal had been rejected and to consider whether it gave rise to grounds upon which it could be challenged. In particular, no sufficient reasons were given as to why the submissions to which I have already referred had been rejected, namely in relation to the issue of provocation and the issue in relation to Mr Green having desisted from the first episode.
12. Next, it was submitted that the Panel had, either expressly or by implication, failed to make findings of fact on critical matters which were relevant to the exercise of their discretion and, having failed to make such findings of fact, their discretion could not have been properly exercised. In so far as decisions of fact were made, expressly or by implication, they were unsupported by evidence in circumstances in which the Panel had explicitly said orally in giving their reasons that they accepted the evidence of all the witnesses. It was then said that the evidence of Mr Green's former wife was not properly addressed in so far as there were inconsistencies between a statement that she had initially given and a letter she had subsequently written to the Authority seeking to withdraw her statement and making inconsistent statements of fact.
13. In relation to the written reasons, which were given some five months after the hearing, Mr Laprell's initial submission in writing was that, for the reasons set out in the decision of Hooper J in the case of M v Criminal Injuries Compensation Appeals Panel, CO/3296/2000, the court should approach with the very greatest of scepticism written reasons given a long time after an oral hearing. But in any event, and as it struck me in the course of argument with greater force, Mr Laprell relied on the fact that it appears from the written reasons that some of the errors in the oral reasons were confirmed. I shall refer to those.
14. The discretion either to withhold or reduce an award on the part of either the Authority or Panel is confirmed by paragraph 13 of the Criminal Injuries Compensation Scheme 2001 which was made by the Secretary of State under the Criminal Injuries Compensation Act 1995, and which governs applications such as this received on or after 1st April 2001. Paragraphs 13(d) and (e) provide as follows:

"A claims officer may withhold or reduce an award where he considers that . . .

(d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or

(e) the applicant's character as shown by his criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made."

15. Guidance has been issued by the Criminal Injuries Compensation Authority in relation to the operation of the Scheme. The 2001 guide, which was the one applicable to the hearing with which I am concerned, provided in Part 4, paragraph 16 as follows:

"These are some examples of situations where we may refuse or reduce an award:

• If your injury was caused in a fight in which you had voluntarily agreed to take part, even if the fight turns out to be much more serious than you expected. If you invited someone to "come outside" for a fist-fight, we will not usually award compensation even if you ended up with the more serious injuries. The same is likely to apply if you chose to accept such a challenge by the offender. The fact that the offender went further and used a weapon will not normally make a difference.

• If, without good cause, you struck the first blow, regardless of how seriously you were hurt when that person fought back."

16. Paragraph 6 of the grounds in support of the application for judicial review, which sets out the oral reasons given by the Panel at the conclusion of the hearing on 26th October 2006, so far as recollected or recorded in the notes of counsel and instructing solicitors was in these terms:

"In the Chairman's reasons, taken from the notes of the solicitor then acting for the claimant which broadly accord with counsel's note, the Chairman stated that the Panel had considered all the evidence. A CCTV recording had been seen by Detective Sergeant Fellowes which showed the events without sound. The claimant had struck the first blow. A fight then started. It was said that the doorman's witness statement was accepted as were those of other witnesses. Reference was made to paragraph 13(d) of the Scheme which provided that the conduct of the appellant, before, during and after the incident, had to be taken into account. Paragraph 22d of the guidance notes was referred to as setting out the criteria to consider. It was said that the first blow had set in motion subsequent events which were a continuation of the initial fight. Reference was made to the claimant being jealous of his ex-wife. The Panel said that he should not have thrown the first punch. They stated that they had a discretion in deciding whether to refuse or reduce an award of compensation. They then stated that it would be inappropriate for any award to be made. Another case referred to on the claimant's behalf in which a 50% reduction had been made where that applicant had struck the first blow and to which reference had been made in support of the contention that the Appeals Panel should endeavour to achieve consistency, was said to be no authority."

17. It is necessary to refer now to some of the material evidence as to the events on 7th July, and in particular evidence, so far as is relevant, to the two central issues that were advanced before the Appeals Panel; namely the issue of provocation and the issue of the relationship between the first fight outside the bar and the incident in which Mr Green sustained his injuries.
18. The only oral witness to give evidence at the hearing was a policeman, Detective Sergeant Fellowes. I say by way of introduction that it is abundantly clear, not only from his witness statement but from other documents in the case to which I shall refer, and also from the account given by counsel as to his evidence at the hearing, that broadly speaking -- and indeed it is fair to say without reservation -- Detective Sergeant Fellowes was entirely sympathetic both to Mr Green and in support of his application for compensation. He had been a police officer for 33 years. He was the investigating officer and was the only person in front of the Panel who had seen the CCTV footage of the fight outside the bar, which he said in the witness statement filed on behalf of the applicant in support of his application for compensation, which he said he had viewed on several occasions.
19. I should interpose here that the day after the assault, or the day of the assault, Mr Fitzgerald committed suicide in circumstances the details of which have not been drawn to my attention and Mr Lane was subsequently prosecuted for the assault on Mr Green which resulted in Mr Lane being convicted of affray.
20. Detective Sergeant Fellowes indicated that the CCTV evidence was only pictures and no sound. He explains that it was thought that Mr Green had believed that his wife was having a relationship with Mr Paul Lancaster who was in Horwich town centre on the evening in question, that Mr Lane and Mr Fitzgerald were friends of Mr Lancaster, and that Mr Green was seen on CCTV leaving the Central Bar, it was believed by the Detective Sergeant Fellowes, with a view to looking for his wife who had left earlier. He was seen on the CCTV coming back shortly afterwards to the entrance of the bar where he was confronted by Mr Lane and Mr Fitzgerald. Detective Sergeant Fellowes said that it can be seen from the CCTV that Mr Green turned away from Mr Lane and Mr Fitzgerald as if going back into the pub and, seconds later, both Fitzgerald and Lane were laughing heartily, one of them bent over holding his stomach in what he would describe as a "real belly laugh". Mr Green at this point is seen to turn around and strike Fitzgerald in the face. It was not a particularly hard punch. Mr Lane is then seen to strike Mr Green on the back of the head which physically shook Mr Green, who is then seen to stumble.
21. There is then somewhat of a fracas with each of the three men hitting out at each other. Officer Fellowes described this as a "scuffle" in which many blows were thrown but many missed their target. He said that from the CCTV it was clear that Mr Green was physically shaken and appeared to be defending himself against both Mr Lane and Mr Fitzgerald. The altercation lasted no more than a minute when a bouncer from the pub, Russell Plevin, intervened and restrained Mr Fitzgerald. At that point Mr Green and Mr Lane continued the scuffle and were seen chasing each other round a parked car before Mr Green ran away and left the scene. At this point the bouncer releases Mr Fitzgerald and both Mr Lane and Mr Fitzgerald are seen chasing after Mr Green away from the Central Bar and along Wright Street for approximately a hundred yards. He said that the whole of the above was captured on CCTV and lasted no more than 60 seconds.
22. He said that the CCTV evidence does not suggest that any of the three were physically drunk, although Mr Lane and Mr Fitzgerald had been drinking since 6 pm and the incident took place around 1 am. He said that after Mr Green fled the pub he was chased by Mr Lane and Mr Fitzgerald. What happened next had not been captured on CCTV.
23. He then refers to evidence from Mr Spillman, an eyewitness to the events giving rise to the injuries to which I shall refer directly. Mr Fellowes says:

"What happened next has not been captured on CCTV but part of what happened was witnessed by Daniel Lee Spillman. Lane and Fitzgerald caught up with Brian Green approximately 500 yards from the pub doorway. Daniel Spillman then saw Lane and Fitzgerald subject Brian Green to a severe assault. He was in his house at the time of the incident and he heard noises outside. He went out to investigate and saw two men assaulting a third man who was lying on the floor. Initially both men were vigorously attacking the third man but then one of the two men did appear to become restrained and then seemed to be trying to pull one assailant from the man on the floor.

When I interviewed Darren Lane I put it to him that if he had not chased Brian Green after the initial skirmish then the fight would have been over. He agreed. Lane told me, 'I wanted to repay Brian for assaulting me, that's why I chased him so far'. Lane agreed with me that when Brian had fled the pub entrance the initial skirmish was over."

His conclusion is in these terms:

"It is my belief that the incident outside the Central Bar, captured on CCTV, was a scuffle and that when Brian Green left the scene the matter should have ended there and then. Darren Lane and Ian Fitzgerald however, chased Brian Green for a considerable distance before administering a vicious assault on him. I do not believe that the subsequent assault was part of the earlier fight. I do not believe that whatever Brian Green had done he was deserving of the vicious assault that followed."

24. Officer Fellowes confirmed that he had filled out the answer to a questionnaire sent by the Authority to the Chief Constable of Greater Manchester Police, and in particular, in answer to the question "Is there any evidence to suggest that the applicant was in any way to blame for the incident?", he answered "No". Under "Additional Information" he had added this:

"Although the A/P [short for 'aggrieved person'] was seen striking out at the offender(s), he was in a distraught state and they were goading him. The A/P certainly did not deserve the extreme response he got, nor the injuries he sustained."

25. The only eyewitness to the events which caused the actual injuries to Mr Green was Mr Daniel Spillman, referred to by Detective Sergeant Fellowes. Mr Spillman, in a witness statement given to the police, said that he was awoken by noises in the street outside his house at about 1.30 am on the morning of Saturday 7th July 2001. Mr Spillman says that his address adjoins Wright Street. Wright Street, as appears from a plan which was made available to the appeal hearing and a copy of which was shown to me, is the street that runs from the Central Bar along to the place where the injury was sustained. He said that he got out of bed and looked around the curtains, which were closed. The window was open due to it being a warm night:

"As I looked out of the window I saw three men. One of the men appeared to hit one of the others and this man fell to the floor. The man who hit him started kicking him. I couldn't see whereabouts on his body he was kicking him as my view was obscured by some small trees and the corner of the houses. The third man was shouting 'Stop, come on let's go, just leave him'."

He ran outside and the man on the floor was bleeding heavily from the back of his head. He called an ambulance. He said:

"I am unable to describe the other two men who were with Brian apart from the fact that the one who I saw assault him had white jeans on."

26. The trial of Mr Lane was attended by a solicitor on behalf of Mr Green who discovered that there had been unused material by the prosecution in the form of a witness statement by a Mr Andrew Leigh. The solicitors then took a statement from Mr Leigh (an unsigned statement) which, so far as material, was in these terms:

"5. I was a friend of Ian Fitzgerald. Within a few days of this incident Ian Fitzgerald committed suicide.

6. On the evening Ian Fitzgerald committed suicide he had been round to my house and I had spoken with him about this incident. Ian told me that he had missed the last bus home and that is why he went to the Central Bar. Ian informed me that he saw Brian Green in the Central Bar and Brian asked him if he had seen his wife, Carol Green. Ian told me that at that time Ian was with another man called Darren Lane. Ian also told me that Darren replied to Brian and said something to the effect of 'She's gone shagging Paul Lancaster'.

7. Ian then informed me that Brian hit Ian and a fight then followed. Ian said that an initial fight started, Brian then ran away, Darren and Ian chased after Brian and they caught up with him some distance away from the pub. Ian told me that Darren threw a punch at Brian and it knocked him to the ground and Brian was out cold. Ian then kicked or stamped on Brian."

27. There was a witness statement by Mr Russell Plevin, the doorman of the Central Bar, who said that he saw a man he now knows to be called Brian, that is the applicant, walk into the pub at about 1.15 am in July 2001. He appeared to be looking for somebody but walked back outside again after about a minute. Mr Plevin said:

"I thought it was strange so I followed him to the door. As he turned left out of the pub I lost sight of him but as I got to the doorway I could see him fighting with a male I now know to be called 'Darren'. He had a short sleeved blue polo top and jeans. Both males were throwing punches at each other. Another male who I now know to be called 'Fitzy' who had a skinhead and jeans and a blue short sleeved shirt on, then began to join in punching at Brian. I then approached them in order to split them up because they were fighting next to the landlord's Mitsubishi car. I threw my arms around Fitzy in a bear hug and pulled him back towards the pub, leaving Darren and Brian to trade punches then let go of Fitzy to grab hold of Darren but Fitzy then began to punch Brian again.

I grabbed hold of Brian and Brian ran off towards, then across Wintey Hey Lane. I let go of Darren then both he and Fitzy began to chase after Brian. They seemed to catch up with him about 75-100 yards away from the pub. All three males then started throwing punches at each other again. I then went back into the pub and left them to it."

28. I was told by counsel, and of course I accept, that at the hearing of the appeal when DS Fellowes gave evidence, he gave evidence as to Mr Leigh's statement which had been given to the police in terms which were similar to those that appear in the unsigned witness statement given by Mr Leigh to the applicant's solicitor which I have cited. He also, referring to his evidence about the "belly laugh", told the Panel that the belly laugh must have been as a result of something said about Mr Green's wife going off with Mr Lancaster. There was evidence before the Panel, which I need not go into in detail, which supported the evidence that Mrs Green had indeed gone out from the bar with Mr Lancaster and had been concerned that Mr Green should not see it, but had then been concerned that he might in fact see Mr Lancaster leave shortly after her.
29. I am told that Sergeant Fellowes in oral evidence to the Panel stated that there were two separate incidents, but he confirmed that in relation to the first incident Mr Green had been goaded and he expressed the view that when Mr Green ran off after the initial fight, that ended it and that there was then a chase and what he described as a second incident.
30. I interpose here that one of the witnesses who gave a statement in support of the application was a Ms Naylor who said that she saw the two men, who we now know to be Fitzgerald and Lane, standing outside the pub near the corner. She said:

"Brian Green walked towards them. I did not hear anything said, although I got the impression that there had been an exchange of words. I then saw Brian Green hit out at one of the men. The other of the two men then hit Brian Green and a scuffle ensued. I shouted at Brian Green to stop.

The men continued to scuffle for a very short time. Whatever was going on between them was over very quickly, and then Brian Green walked off up Wright Street.

I then heard the two men talking to each other. Their language was offensive. In effect, however, they agreed between themselves to go after Brian Green. One said that they 'would have him'. They called him names, and said that they were going to 'sort him out' and he was not going to get away with that."

31. I was told also by counsel, and accept, that after the hearing he came into possession of an interview between Mr Lane and DS Fellowes, in the course of which DS Fellowes in summary put it to Mr Lane "If you had not gone after him, it would have ended there", to which Mr Lane agreed. Mr Laprell relied on that, not of course on the basis of evidence before the Appeal Panel but rather as corroborating the overall thrust of the evidence which the officer did give to the Appeal Panel, and to which I have referred; namely to the effect that the second episode was a wholly distinct episode from the initial scuffle.
32. In my judgment, although of course the Panel, under paragraph 13(d) of the Scheme, have a discretion to withhold or reduce an award where it is considered that the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate for a full award or any award at all to be made, there are at least two things incumbent on a Panel in circumstances such as this: (1) to make findings of fact in respect of those matters which are relevant to the exercise of the discretion, and (2) to give sufficiently full and clear reasons to indicate not only how and why the discretion has been exercised, but in particular, if submissions as to why it should be exercised in favour of the applicant are rejected, the reasons for rejecting those submissions. In my judgment, it is clear that in this case that has not happened.
33. It is also clear that there is an inconsistency between the explicit statement made orally by the Chairman of the Panel when giving its reasons that the Panel accepted the statements of the other witnesses, including, by necessary implication, Detective Sergeant Fellowes, Ms Naylor, Mr Spillman and, indirectly, Mr Leigh on the one hand and the finding which they appear to have made, explicitly or by implication, that the incident in which Mr Green sustained his injuries was a continuation of the fight outside the bar and the other. I say "expressly or by implication" because in the note of the oral reasons contained in paragraph 6 of the grounds in support of the application for judicial review, what was recorded was:

"It was said that the first blow had set in motion subsequent events which were a continuation of the initial fight [emphasis added]."

The implication, in my judgment, being that the Panel was finding that the subsequent incident was not only a continuation of the first but was itself a fight. That is the implied part.

34. The express part is to be found in the subsequent written reasons in which the following appear, in paragraph 10:

"As a consequence of what was said the applicant struck Darren and a fight followed in which the applicant was a willing participant. The fight was stopped by the doorman Plevin, who subsequently made a police statement. At that time all three men were exchanging punches. The applicant then ran away and was chased by the other two men who caught him and the fight continued. Unfortunately in this fight the applicant sustained serious injuries caused, it would seem, when his head hit the road. He was punched and kicked [emphasis added]."

In paragraph(c) under "Our decision", the following is said:

"We considered all the evidence. We also considered the statement of the police officer and his evidence which accorded therewith. We accepted the evidence of Plevin as an account of what occurred as he was a witness to the fights".

Then under (d) in the third paragraph:

"We were also satisfied that after the parties were separated the applicant ran away. He was chased and caught by Lane and Fitzgerald and according to the witness Plevin the fight continued in which the applicant sustained his serious injuries . . . .

We were satisfied that for the purpose of the Scheme there was only one incident, the second fight being a continuance of the first altercation."

35. It is apparent from the references in the written reasons that the Panel concluded that the blows which caused the injuries to Mr Green occurred in what they found to be not only a "continued fight" but explicitly a "fight". In my judgment, first of all it is abundantly plain that that finding of fact is wholly unsupported by any evidence before it, and indeed is irreconcilably inconsistent with the evidence of the only eyewitness, Mr Spillman, who not only gives no evidence of any participation by Mr Green in anything that could be described as a fight, and gives no evidence of any blows, kicks or punches thrown by Mr Green in the incident which he saw from his window, but also describes what he saw as an "assault" and gives a description which is confined to Mr Lane and Mr Fitzgerald hitting and kicking Mr Green.
36. The Panel's finding that the injuries were sustained in a fight is also inconsistent with the evidence given by DS Fellowes of Mr Leigh's indication in his statement that he had been told by Mr Fitzgerald that Lane threw a punch at Mr Green which knocked him to the ground and Mr Green was out cold. Mr Fitzgerald then kicked or stamped on him. Again, that is an account not of a fight but of a unilateral assault on Mr Green by Mr Lane and Mr Fitzgerald.
37. It follows from this, first of all, that in my judgment the Appeal Panel proceeded on the basis of a finding of fact -- namely that the injuries were sustained in a fight which was a continuation of the fight outside the bar -- which was unsupported by evidence and inconsistent with evidence which they had accepted, and in my judgment that, of itself, must impugn the legitimacy of the exercise of discretion which they went on to make. Further, in so far as they rejected that evidence, expressly or by implication, in my judgment, it was necessary for them to give, even in outline form, a statement of the reasons why they rejected it so that Mr Green could consider whether he had grounds to challenge their decision. This they failed to do, either in their oral or their written reasons.
38. Next, it is apparent from the reference by the Chairman in the oral reasons to paragraph 22 of the guidance notes, setting out the criteria to consider, that the Panel considered that it was engaged in an exercise in which it was or ought to be applying those criteria. When one reads those criteria, it is apparent, and it was accepted by counsel in argument, that in fact the general discretion conferred by paragraph 13(d) of the scheme is wider than the first two bullet points in paragraph 16 of the guidance. That is to say that even if the Panel had found that the facts of this case did not fall within either of those bullet points, they could still lawfully have exercised, in the right case and given the right reasons, their discretion in favour of refusing an award.
39. However, what appears to have happened is that the Panel considered that these two bullet points did apply and they went on to make the implicit findings that the facts of this case fell within those two bullet points. In my judgment in so far as they did that -- and one of the difficulties is that their oral reasons were so sparse that one can only infer what they did -- they were wrong to do so. Bullet point one states: "If your injury was caused in a fight in which you had voluntarily agreed to take part, even if the fight turns out to be much more serious than you expected we may refuse or reduce an award". This was not a case, for the reasons I have given, in which the injury was caused in a fight in which Mr Green had agreed to take part. It was caused in an assault which was a separate incident.
40. The second bullet point, "If without good cause you struck the first blow, regardless of how seriously you were hurt when that person fought back", in my judgment, is referring to a situation in which the blow causing the injury was sustained in an incident in which the first blow was struck by the victim. Again, on the evidence before the Panel, which it accepted, that is not what happened on this occasion. That is not to say that the Panel did not have a discretion to consider whether it should refuse an award having regard to the fact that in the earlier incident, which was a fight, that had been started by Mr Green. What it is to say is that the Panel appear to have regarded themselves as bound to apply criteria which, had they applied them, should have led to the conclusion that the facts of this case did not fall within those two specified circumstances. For that reason, they appear to have assumed that, having found, wrongly as I have held, that the facts fell within one or other of those two bullet points, that they were therefore for that reason alone, entitled to refuse an award.
41. I turn now to the question of provocation. I have referred to the evidence as to the remark to the effect of "She's gone shagging Paul Lancaster". One of the two main submissions to the Panel was that the provocation comprised in those words was such that the Panel should have exercised its discretion in reducing rather than refusing an award.
42. In the oral reasons, summarised in paragraph 6 of the grounds, there is simply no reference to any finding of fact in relation to that submission as to provocation. The closest that the Panel come to it is the statement: "Reference was made to the claimant being jealous of his ex-wife". In my judgment, that is a wholly inadequate basis upon which to deal with counsel's submissions to the effect that (a) the remark was made, (b) it constituted provocation that led to Mr Green swinging the first punch, and (c) for that reason it was a case in which the Panel should be influenced in favour of reduction rather than refusal of an award. There simply is nothing. There is neither a finding of fact nor is there any reason given as to why, if that fact was found, it was not a fact that should weigh in favour of a reduction rather than a refusal.
43. I would add that I am told by counsel, and accept, that there was no evidence, as was recorded by the Panel in its reasons, that Mr Green sustained his injuries when his head hit the road. The evidence was that his head did hit the road but also that he was kicked and there was, I am told, no evidence as to which of those two things caused the brain injury for which he sought compensation.
44. There was, in my view, an inadequate dealing by the Panel with the evidence of Mrs Green, the former wife, in that there was an inconsistency in her witness statement and her subsequent letter, the details of which I do not need to go into. For present purposes it is sufficient to say that no findings of fact were made by the Panel in relation to those inconsistencies, nor were sufficient reasons given, if this is indeed the case, for the Panel to have accepted the letter rather than the witness statement and no indication was given by the Panel as to what weight, if any, it attached to those matters in the exercise of its discretion.
45. In the case of M, to which I have already referred, Hooper J referred at paragraph 35 to the decision of Hobhouse LJ in R v Criminal Injuries Compensation Board ex parte Cook at 158 to 159:

"The whole purpose . . . was to enable persons whose property or interests were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were . . . proper adequate reasons must be given; the reasons that are set out . . . must be reasons which not only will be intelligible but also can reasonably be said to deal with the substantial points that have been raised . . . .

In every case the adequacy of the reasons must depend upon the nature of the proceedings, the character of the decision-making body and the issues which have been raised before it, particularly if they include issues of fact."

Hooper J went on to add at paragraph 45:

"Proper reasons enable this court to be satisfied that the claimant and, in this case, the local authority have had a fair hearing. Proper reasons enable the loser to decide, having examined the reasons, whether or not to seek judicial review and to enable this court effectively to exercise its public law functions. In R v Secretary of State for the Home Department ex parte Doody [1994] Lord Mustill said (at page 565) --

'I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene . . . '"

46. In my judgment, the Panel failed in this case to give sufficient reasons to explain, still less to justify, the way in which they exercised their discretion. For all of those reasons, in my judgment, the exercise of discretion was unlawful and the decision cannot stand. In those circumstances, I quash the decision and I direct that the appeal should be reheard by a separate Panel.
47. MR LAPRELL: My Lord, I am grateful. My Lord, I have considered the defendant's submissions on costs and also considered two of the authorities cited, in particular the LT and DT case and the Christine Davies (No 2) case. Suffice it to say that whilst I could express many of the same reservations that were expressed in the Christine Davies (No 2) case by Brooke LJ that a party who brings an application because something has gone wrong, whether it be a Coroner's Court, a Magistrates' Court or, as here, in a Tribunal and they are not publicly funded, simply because the Tribunal does not respond in an adversarial fashion therefore costs cannot be recovered. I express the same reservation as he did that that leaves people effectively short of a complete remedy when an organ of ultimately the judiciary has gone wrong. That is nonetheless the balance which has been clearly struck on those authorities.
48. Brooke LJ in the Davies case answers the questions at paragraph 47, which I think is quoted in the defendant's submissions at page 3 where it is made clear.
49. MR JUSTICE STADLEN: I have not read the authority but in the passage that is cited it looks as though you do not come within (iii) and it is only in (iii) that Brooke LJ seems to make an exception. So you have to show, have you, that they acted in --
50. MR LAPRELL: Well, there has to almost be a deliberate abuse of power and it falls well short of that.
51. MR JUSTICE STADLEN: It is very unsatisfactory, but that seems to be what the Court of Appeal says.
52. MR LAPRELL: It is. Brooke LJ said in Davies that it was unsatisfactory. He says this as paragraph 48:

"I do not regard this outcome as at all satisfactory but it stems from Parliament's unwillingness to allow a successful applicant to be reimbursed from central funds."

In other words, if the orders that are available in criminal courts when defendants are acquitted but the prosecution was properly brought applied in this situation, there would be a central funds order. But that simply is not possible. That would be the solution.

53. However, all that said, the claimant is legally aided for the purpose of pursuing judicial review proceedings. It is not necessarily a carte blanche because he cannot be legally aided for the rehearing before CICA. Legal Aid is not available for that. That means his certificate is isolated to the judicial review proceedings. Hopefully that will mean that we can discharge the certificate and ask for it to be assessed and the Legal Aid charge which would apply to any money he might recover if he is successful before CICA hopefully will not bite.
54. MR JUSTICE STADLEN: Is there anything you want me to do?
55. MR LAPRELL: No, my Lord. If you simply say no order for costs then the order made by Ouseley J will be caught by that because he ordered costs in the application. If you say no order for costs then the costs of the hearing before him will be caught by that.
56. MR JUSTICE STADLEN: So if I say no order for costs --
57. MR LAPRELL: If you simply say no order for costs, which I think is the consequence of Davies and is what the Treasury Solicitor seeks, there is no order for costs against them.
58. MR JUSTICE STADLEN: I make no order for costs.
59. MR LAPRELL: I am obliged. Would you say detailed assessment of the claimant's publicly funded costs.
60. MR JUSTICE STADLEN: I direct detailed assessment of the claimant's publicly funded costs. Thank you very much for your submissions which were very helpful.