Seen to be done?

The Property & Compensation Consultation, part 6

(As this series has turned out to be longer than I expected when I started it, I’m going to up the posting rate to one very day from now on until the series has been completed; what a treat you have in store!.)

“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Lord Chief Justice Hewart from Rex v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.

It is not often that a remark made in a judgement on appeal finds its way into the Oxford Dictionary of Quotations, but Lord Hewart earned that distinction with the phrase reproduced above.

Whilst the circumstances of the case to which the Lord Chief Justice was referring are far removed from the modus operandi of the Exceptional Hardship Scheme (EHS) Panel, it expresses the very essence of what members of a modern, just society might consider as fair treatment from such a body. It leads me to pose the question, “As far as the reasonable expectations of applicants are concerned, has the operation of the EHS Panel resulted in justice being done and also in justice being seen to have been done?”

I’m afraid that my direct dealings in a couple of cases and reports that I have heard from others lead me to conclude that neither has justice always been done, nor have the rules under which the EHS operates resulted, in most cases, in justice being seen to have been done.

A glaring example of the disregard for the principles of natural justice is that the EHS has no appeal mechanism. You can, it is true, reapply if you have been unsuccessful, but only if “there is a material change in your circumstances or you are able to provide new evidence that may be relevant to the reason(s) your application was turned down”.

Also, unlike a court of law, applicants are not invited to attend the meeting of the Panel at which their application is discussed. Effectively then EHS Panel meetings are held in camera. This is a shocking betrayal of the principles of natural justice and leads me to refer you to another quote from the Bench:

“Justice is not a cloistered virtue.”

Lord Atkin from Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335.

This taken with the rather limited information usually given on the reasons for a failed application that I referred to in my blog Not exceptionally helpful (posted 8 Jan 2013), the applicant may be left wondering why the Panel has rejected an application, or doubting that the Panel has been fair in rejecting an application.

I am also very dubious about the practices used by the EHS Secretariat in gathering evidence. In relation to this, I quoted a comment in the HS2 Exceptional Hardship Scheme for Phase One: Updated Guidance and Application Form booklet in my blog Not exceptionally helpful. In this comment HS2 Ltd advises that “…in almost all cases the estate agent(s) currently marketing the property will be contacted”. What is not stated in the HS2 Ltd booklet is that you will not be told who has been contacted for additional evidence, and this evidence will not be disclosed to you. So you will have no opportunity to dispute the additional evidence or to source counter evidence of your own.

It is also apparent, from my own experience of an application to the EHS Panel, that the EHS Secretariat is prepared to accept uncorroborated evidence, even where it should be possible to seek an opinion from a second source. In the case that I was involved in three estate agents had been commissioned to handle the sale, but a damming report from one was placed before the Panel without any evidence being secured from the other two. It emerged after the EHS Panel hearing had rejected the application that one of the other two agents held a totally contrary view. Had this additional evidence been presented, it may have led to a different outcome.

This secretive treatment of additional evidence would not be tolerated in a court of law, where there is a requirement to disclose evidence prior to trial, and is another feature of the EHS that confronts natural justice.

For the reasons that I have given, I am strongly of the opinion that the applicant is severely, and unnecessarily, disadvantaged in his dealings with the EHS Panel. Faced with what is effectively a “wall of silence”, how is the applicant to judge whether he has been fairly dealt with and what can he do about it if he thinks that this is not the case?

Well I do have a few tips of this score, but they will have to wait until the next blog.

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