Court of Appeal Rules on Double Recovery in Compensatory Frameworks - AXO v First-Tier Tribunal Key Issue Clarified

Citation: [2024] EWCA Civ 226
Judgment on

Introduction

AXO, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber) is a noteworthy case in the Court of Appeal surrounding the contentious issue of double recovery in compensatory frameworks. The case addresses pertinent legal principles about recovery of Criminal Injuries Compensation Authority (CICA) awards when subsequent Human Rights Act (HRA) damages are received, as it pertains to the same injury. This article serves to distill the crucial topics and legal principles deliberated within the judgment, providing legal practitioners with essential insights into the court’s rationale.

Key Facts

The appellant, a minor, was indirectly victimized through the murder of her mother by an ex-partner. Initially, the appellant was awarded £25,500 by CICA for bereavement and loss of parental services. Subsequently, she pursued civil proceedings against various state agencies under the ECHR, alleging breaches of Articles 2 and 3 and received £15,000 in settlement, approved by Master McCloud. CICA then sought repayment, citing that the HRA damages fell within the ambit of ‘the same injury’ for which compensation had already been provided, leading to appeals in the First-tier Tribunal and the Upper Tribunal.

The pivotal legal principle at the core of this case is the concept of double recovery within compensatory schemes and its resonance with the CICA statutory scheme. The court meticulously dissected paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme, determining whether CICA’s right of recovery extends to any payments connected with the ‘same injury’ or is restricted to instances preventing double recovery.

The court highlighted the significance of enforcing the principles under the European Convention on the Compensation of Victims of Violent Crimes, particularly Article 9, which explicitly endeavors to avoid double compensation. A balance needed to be found between the broad discretionary nature of Convention damages, meant to uphold human rights standards, and the more precise compensatory nature of common law damages typically governed by quantifiable loss.

The court drew on an extensive body of case law, such as Rabone, DSD, and JT v First-tier Tribunal, which underscored the distinction between common law and ECHR principles regarding damages. Of note is the treatment of moral damage, which, although recognized in Convention law, does not fundamentally differentiate ECHR awards from common law damages.

Outcomes

The court’s judgment was multifaceted. It affirmed that paragraph 49(1) of the 2008 Scheme does not allow CICA to reclaim previously awarded compensation unless it would prevent double recovery. The appeal succeeded to the extent that the HRA Damages relating to Article 2 overlapped with the bereavement award previously provided by CICA. Consequently, CICA is entitled to reclaim £5,500 of the HRA Damages. However, there was no overlap with the CICA award for loss of parental services.

Conclusion

In conclusion, the Court of Appeal’s decision in AXO, R (on the application of) v First-Tier Tribunal (Social Entitlement Chamber) reverberates clear principles relating to the limitations of recovery under the CICA scheme. It distinguishes the boundaries between awards for human rights violations and common law damages, emphasizing that double recovery is only viable when the compensations overlap concerning the injury’s inherent harm. Further, it delineates that moral damage, while distinct in terminology within ECHR law, represents harm to an individual’s well-being akin to that recognized in UK law, thereby not representing a separate category of injury when assessing double recovery. This judgment thereby serves as a seminal reference for compensation frameworks involving overlapping awards from different legal origins.

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