QUEEN'S BENCH DIVISION
2 Park Street
Cardiff CF10 1ET
B e f o r e :
LORD JUSTICE SINGH
| Powys County Council
|- and -
|John Bernard Hurst
The Respondent in person
Hearing date: 19 June 2018
Crown Copyright ©
Lord Justice Singh :
The case stated for the opinion of this Court
"(i) Are the local authority precluded from applying to the County Court for an attachment of earnings order under the Attachment of Earnings Act 1971?
(ii) Was I entitled to dismiss the application and quash the commitment because I concluded that the local authority had not satisfied me that they had exhausted all alternatives to custody before applying to commit Mr Hurst to prison?"
The Legal Framework
"A liability order confirms the amount of the outstanding debt, and the identity of the liable person. It is, in many ways, the equivalent of a judgment, which can be enforced in any of the ways set out in Regulation 52 of the 1992 Regulations, i.e. (i) making an attachment of earnings order (Regulation 37 of the 1992 Regulations); …"
"If, and only if, the Court is of the opinion that the subject's failure to pay is due to his wilful refusal or culpable neglect, it may, if it thinks fit, issue a warrant of commitment, or make a suspended committal order (i.e. fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions as the Court thinks just, usually of course as to payment of the arrears)."
The Appellant's submissions
"Where a liability order has been made and the debtor against whom it is made is an individual, the authority which applied for the order may, subject to paragraph (4), make an order under this Regulation to secure payment of the appropriate amount."
"The amount in respect of which a liability order is made is enforceable in accordance with this Part; and accordingly for the purposes of any of the provisions of Part III of the Magistrates' Courts Act 1980 (satisfaction and enforcement) is not to be treated as a sum adjudged to be paid by order of the court."
"… It does not lead me to conclude that a liability order is not a judgment debt within the meaning of the Attachment of Earnings Act."
"… I was aware that any Local Authority could apply to the County Court to enforce by way of charging order but of course in this case this Local Authority had not tried to obtain an Attachment of Earnings Order and so there was no definitive judgment upon which they could rely to demonstrate that they were not permitted by law to apply.
The skeleton argument failed to persuade me that they could not do this and I found nothing in their submissions to satisfy me they were precluded from applying to enforce in the County Court.
I came to the view that the Local Authority ought to have applied to the County Court for an Attachment of Earnings Order and that the absence of that enquiry was fatal to their application."
"(i) a judgment or order enforceable by a Court in England and Wales (not being a Magistrates' Court);
(ii) an order of a Magistrates' Court for the payment of money recoverable summarily as a civil debt; or
(iii) an order of any Court which is enforceable as if it were the payment of money so recoverable,
but does not include any such sum payable under a maintenance order or an administration order; …"
"Subject to the provisions of subsection (2) below, payment of a sum adjudged to be paid by a conviction of a Magistrates' Court may be enforced by the High Court or the County Court (otherwise than by issue of a writ of control or other process against goods or by imprisonment or attachment of earnings) as if the sum were due to the designated officer for the Magistrates' Court in pursuance of a judgment or order of the High Court or County Court, as the case may be."
"This Act, so far as it relates to Magistrates' Courts, and Part III of the Magistrates' Courts Act 1980 shall be construed as if this Act were contained in that Part."
"The amount in respect of which a liability order is made is enforceable in accordance with this Part; and accordingly for the purposes of any of the provisions of Part III of the Magistrates' Courts Act 1980 (satisfaction and enforcement) it is not to be treated as a sum adjudged to be paid by order of the Court."
"(1) For the purposes of this Act, but subject to the following subsection, 'earnings' are any sums payable to a person –
(a) by way of wages or salary ….
(b) by way of pension …
(c) by way of statutory sick pay."
"'Earnings' means sums payable to a person –
(a) by way of wages or salary … or
(b) by way of statutory sick pay …"
The Respondent's submissions
(1) The Appellant local authority was precluded from applying to the County Court for an attachment of earnings order under the Attachment of Earnings Act 1971.
(2) The Magistrates' Court was not entitled to dismiss the Appellant's application or to quash the earlier commitment on the ground that it had not exhausted all alternatives to custody for applying to commit the Respondent to prison.
Lord Justice Hickinbottom :