England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th March 2006

Mr Justice Munby :

1. The appellant seeks to appeal against a liability order under section 33 of the Child Support Act 1991 made against him in the sum of £20,850.37 by Andover Magistrates' Court on 24 August 2004. The liability order was made on a summons dated 5 May 2004 which had been issued on the complaint, also dated 5 May 2004, of the Child Support Agency ("the CSA"). Strictly speaking, of course, the complaint was made by the Secretary of State. It is, however, convenient to look to the practical reality, which is that the proceedings were brought, just as the appeal has been defended, by the CSA.
2. The case came before the justices on 29 June 2004. The appellant challenged the amount of his liability (if any) to the CSA. Part of the dispute apparently related to monies that the appellant said he had paid but which had not, he complained, been taken into account by the CSA. The CSA, as I understand it, was unable to particularise exactly how the disputed sum of £20,850.37 was calculated. The justices adjourned the case until 24 August 2004, as the order put it, "for the [CSA] to obtain further details." At the adjourned hearing, according to the appellant, the CSA was no better equipped, but the justices nonetheless made a liability order in the amount claimed. The Clerk's notes of the hearing record that the CSA had not produced the additional information required from the previous hearing.
3. Subsequently, the CSA obtained from the Basingstoke County Court a charging order (initially on 24 January 2005 an interim charging order or charging order nisi and subsequently on 9 March 2005 a final charging order or charging order absolute) charging the appellant's house with payment of the sum of £20,850.37 together with certain costs.
4. The appellant being dissatisfied with the decision of the justices sought to appeal. He has produced a copy of the letter dated 30 August 2004 that he asserts he hand–delivered to the Magistrates' Court. In material part it reads:

"I would like to make an application for appeal. I would be grateful if you could advise me as to how to do this. My grounds for appeal are: … Hearsay and Presumption was accepted on the part of the prosecution. Documents requested at a previous hearing, for which the prosecution failed to supply in 8 weeks … I also respectively [sic] request a statement of case."

It seems that nothing was done in response to this letter – a fact that the appellant says he did not become aware of until 24 December 2004. Be all that as it may, it is clear that the justices have never in fact stated a case.

5. On 2 February 2005 the appellant issued a Notice of Motion in the Divisional Court of the Family Division, seeking to appeal against the decision of the justices on 24 August 2004 and seeking, in addition, leave to appeal out of time. His application and appeal came on before me for hearing on 23 November 2005. The appellant appeared in person, as he had before the justices. The CSA was represented by Mr Tim Buley.
6. Mr Buley, for whose assistance I am grateful, produced a detailed skeleton argument which, having helpfully set out the relevant legal and factual background, raised two fundamental objections to the appeal. First, Mr Buley submitted that there was in fact no competent appeal before me at all. Secondly, he submitted that, in part at least, the appellant's dissatisfaction with the decision of the justices overlooked the limitation on their functions imposed by sections 33(3) and 33(4) of the Child Support Act 1991 (as to which he referred me to Farley v Secretary of State for Work and Pensions (No 1) [2005] EWCA Civ 778, [2005] 2 FLR 1059). Importantly, however, and very fairly, Mr Buley directed my attention to the fact that the figure of £20,850.37 might be incorrect. He was not in a position to concede that it was incorrect, let alone to specify the correct figure, but very properly and fairly he accepted that the figures needed to be looked at again.
7. Although it seemed to me that Mr Buley was almost certainly correct in submitting that there was no competent appeal before me, it occurred to me that, if the amount specified in the liability order was in fact wrong, the appellant might have grounds for seeking a judicial review of the justices' decision on the basis of my decision in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin).
8. I decided to adjourn the matter part heard so as to enable the CSA to produce a detailed calculation setting out the correct sum due from the appellant and to produce, if it could (in the event it could not), a more detailed account of what had gone on before the justices on 24 August 2004. The adjournment would also enable the CSA to consider (which seemingly at that stage it had not done) the possible implications of R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin).
9. Eventually – for it took it rather longer than anticipated – the CSA was able to produce a schedule on 3 February 2006 showing that, even on its own view, the correct amount due from the appellant was not the £20,850.37 in respect of which the liability order had been made but the smaller sum of £19,853.13. The appellant responded on 6 February 2006 disputing the revised figure. On 10 February 2006 the CSA wrote to the appellant accepting that the liability order should be quashed (by an order to be made in the Administrative Court) and inviting the appellant to agree to a consent order in what the CSA suggested were appropriate terms. Also enclosed with that letter was a draft 'Statement of reasons for consent order pursuant to CPR 54 PD17' which had been drafted by Mr Buley. On 14 February 2006 the appellant responded in a letter to the CSA indicating that he was not prepared to sign the consent order and that he wished the matter to be restored before me. I gave appropriate directions on 16 February 2006 and the adjourned hearing resumed in front of me on 28 February 2006.
10. I think it helpful at this point to set out the more important parts of the 'Statement of reasons' put before me by Mr Buley:

"1 This claim was ostensibly brought as an appeal to the Family Division against the Liability Order, by Form on Notice of Motion dated 2 February 2005. No appeal lies against the Liability Order other than by way of appeal by way of case stated … but … it is apparent that at least in certain circumstances judicial review of the Magistrates will lie. The Form of Notice of Motion was not filed until 7 February 2005, outside of the ordinary time limit for bringing judicial review claims, but it appears that the Claimant may have sought a statement of case by the Magistrates in August 2004, albeit that no statement of case has been made, possibly because the Magistrates did not understand the Claimant's request for what it was. It is likely to be difficult to resolve precisely what happened at this stage, but in all of the circumstances, including the error in the amount of the Liability Order explained below, the Secretary of State accepts that it would be appropriate to treat this claim as a claim for judicial review of the Liability Order, and that time for bringing the claim be extended …

2 The Secretary of State has carefully considered the Liability Order in all of the circumstances and for the following reasons accepts that it should be quashed.

3 The jurisdiction of the Magistrates to make a liability order is governed by section 33 of the 1991 Act, which provides that they shall make an order where satisfied, in respect of one or more payments of child support maintenance, that those payments "have become payable by the liable person and have not been paid".

4 In the present case the Secretary of State sought a liability order in the sum of £20,850.37, in respect of the period 26 September 1998 to 25 March 2004 … It has since become apparent to the Secretary of State that that figure was based on a miscalculation of the Claimant's total liability for the relevant period. The Secretary of State's view as to the correct liability, as well as his views as to a number of other issues raised by the Claimant, are set out in his letter of 3 February. The issues between the parties include legal issues as to what kinds, and dates, of payment, the Magistrates can have regard to. It is not necessary for the Court to consider that matter and it cannot do so without hearing argument. Both parties will be free to raise such arguments as they wish before the Magistrates in relation to those issues.

5 While it has not been possible to ascertain precisely what took place at the hearing before the Magistrates on 24 August 2004, the Secretary of State accepts that the Claimant sought to dispute the correctness of its calculation of his liability for the period in question.

6 The Clerk's Notes produced by the clerk to the Magistrates for the second hearing of the application for a liability order, on 24 August 2004, give no indication of any discussion of the amount or any attempt to go behind the total figure asserted on behalf of the Secretary of State. The clerk's note of the reasons for making the Liability Order were stated to be:

" … that the Magistrates were satisfied that the regulations had been totally complied with and therefore made the Liability Order … "

7 In the circumstances the Secretary of State accepts that the Magistrates failed to discharge their duty under section 33, of satisfying themselves that the payments in question "have become payable" and "have not been paid". In the light of the acceptance by the Secretary of State of an error in the figure claimed, that was material to the making of the Liability Order in the sum in which it was made.

8 It is further accepted that the interim charging order, made in the Basingstoke County Court on 24 January 2005, and the final order made on 9 March 2005 … cannot stand because they were made pursuant to the Liability Order. The Secretary of State takes the view however that it is not appropriate to seek to deal with the charging order by way of this application, both because of the limited circumstances in which judicial review will lie against the County Court, and the fact that the CPR contains a dedicated procedure for setting aside a charging order (CPR 73.9) which requires an application to be made to the judge who made the order (it would also require the County Court to be joined as Defendant to the judicial review). The Secretary of State will support an application under CPR 73.9 by the Claimant, or alternatively himself make such an application, on the basis of material change in circumstances, and takes the view that in those circumstances it is not necessary for this court to make an order in respect of the Charging Orders.

9 For the avoidance of doubt the Secretary of State continues to maintain that the Claimant is liable for unpaid child support maintenance for the period in question, and seeks a liability order (albeit in a lesser sum) pursuant to the summons issued by the Magistrates on 5 May 2004. It is therefore necessary that this matter be remitted to the Magistrates for determination of the amount of the Claimant's liability."

11. It is quite clear that there is in fact no competent appeal before me. The only method of appeal from justices in a CSA matter such as this is an appeal by way of case stated under section 111 of the Magistrates' Court Act 1980; and in the case of such an appeal there is a very short time limit that cannot be extended: see T v Child Support Agency [1998] 1 WLR 144, Re L (Family Proceedings Court) (Appeal: Jurisdiction) [2003] EWHC 1682 (Fam), [2005] 1 FLR 210, and Hickerton v Child Support Agency [2006] EWHC 61 (Fam). The appeal before me is not an appeal by way of case stated and is in any event long out of time. There is, accordingly, no valid appeal before me. In his notice of appeal the appellant, as I have said, seeks leave to appeal out of time. But I have no power to extend time.
12. There may, however, be circumstances in which an application for judicial review will lie to the Administrative Court to challenge a decision of justices in a CSA matter: see R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin), Re L (Family Proceedings Court) (Appeal: Jurisdiction) [2003] EWHC 1682 (Fam), [2005] 1 FLR 210, Farley v Secretary of State for Work and Pensions (No 2) [2005] EWCA Civ 869, [2005] 2 FLR 1075, and Hickerton v Child Support Agency [2006] EWHC 61 (Fam). The present, in my judgment, is just such a case.
13. The issue in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin) arose at a later stage in the enforcement process, but the essential vice in that case was the same as in this. Justices were given an erroneous figure by the CSA. I need not repeat everything I said in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin). But in this case as in that, and for essentially the same reasons, I am satisfied that the decision of the justices cannot stand. If there is no other way to give the appellant the justice to which in my judgment he is entitled, the Administrative Court must give him a remedy by way of judicial review. And in this case as in that the mere fact that the appellant is out of time for making an application for judicial review cannot stand in the way.
14. Although I have no power to extend the appellant's time for appealing by way of case stated I do have jurisdiction to extend his time for applying for judicial review. Applications for permission to apply for judicial review out of time must be scrutinised with care, and good reason must be shown for extending time. But none of that can stand in the appellant's way in this case. The fact is that the justices were, as is now conceded, given the wrong figure by the CSA. There was accordingly a miscarriage of justice. Once that fact comes to light the Administrative Court is duty bound to intervene, whatever the delay. In the present case, of course, it seems that the appellant had in fact tried to challenge the decision in time, but even if he had not I would have come to the same conclusion. As it happens I am a nominated judge of the Administrative Court and can make the necessary order without sending the appellant away to another court on another day.
15. At this point I must take issue with something said in the 'Statement of reasons' put before me by Mr Buley. It will be recalled that in paragraph 7 of that document the Secretary of State "accepts" – more accurately, it might be thought, asserts – that "the Magistrates failed to discharge their duty under section 33, of satisfying themselves that the payments in question "have become payable" and "have not been paid"." That, I am afraid, with all respect to Mr Buley and the CSA, simply will not do.
16. It may be that the justices can be criticised for not having pressed the CSA on 24 August 2004 to produce the documents the absence of which had led to the adjournment on 29 June 2004. But that, as it seems to me, is largely beside the point. The fundamental cause of what can now be seen to have been a miscarriage of justice, and the reason why, consistently with R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin), the appellant is entitled to a quashing order, is not because of any failings or shortcomings on the part of the justices. It is because of the fact that the CSA gave the justices the wrong figure. The CSA told the justices – twice: on 29 June 2004 and again on 24 August 2004 – that the amount due from the appellant was £20,850.37 when in fact on the CSA's own calculation, and as it now concedes, the correct amount was £19,853.13. I do not for a moment suggest that the CSA set out to mislead the justices. No doubt, just as in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin), the figure was given to the justices in complete good faith. But that, as I explained in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin), does not prevent the Administrative Court making a quashing order. The simple fact is that the justices were misled on what was, after all, the central issue before them – the amount for which the liability order ought to be made. And it was the CSA, even if innocently, which misled the justices. It is, accordingly, on this basis, and not that suggested in paragraph 7 of the 'Statement of reasons', that I make the quashing order.
17. The appellant has set out his objections to the CSA's revised figure of £19,853.13 in a document dated 19 February 2006 to which the CSA has in turn responded in a letter dated 24 February 2006. I agree with Mr Buley that it is not for me today to decide the various issues that arise on these documents. Initially at least these are matters for the justices to consider when they come to rehear the case. But that said, there is an important point I must emphasise.
18. As I remarked in Hickerton v Child Support Agency [2006] EWHC 61 (Fam) at para [17], responsibility for judicial scrutiny of CSA matters is divided between two different tribunal systems. There is one tribunal structure (the Child Support Appeal Tribunal and the various bodies which hear appeals from it) dealing with questions of calculation. There is another tribunal structure (the Magistrates' Court and the various bodies which hear appeals from it) dealing with questions of enforcement. In other words, the jurisdiction of the justices when they come to consider an application by the CSA for a liability order is limited.
19. The justices exercise a statutory jurisdiction under section 33 of the Child Support Act 1991. The boundary between what the justices can – and must – decide and what they cannot – and must not – decide is delineated by sections 33(3) and 33(4) of the Act. Section 33(3) provides that the justices:

"shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid."

However, section 33(4) provides by way of qualification and restriction that:

"the court shall not question the maintenance assessment under which the payments of child support maintenance fell to be made."

20. Where precisely the dividing line falls between what section 33(3) requires the justices to consider and what section 33(4) prevents them considering may on occasions be a matter of some nicety: see Secretary of State for Social Security v Shotton [1996] 2 FLR 241 and, more particularly, Farley v Secretary of State for Work and Pensions (No 1) [2005] EWCA Civ 778, [2005] 2 FLR 1059. I express no views at all as to how the line is to be drawn in this particular case. That is a matter in the first instance for the justices after having heard appropriate argument from both sides on the facts and, no doubt, also on the law. I merely draw attention to the point so that the appellant can appreciate that the CSA may – indeed, as I understand it, will – be submitting to the justices that some of the matters he wishes to raise are for the Child Support Appeal Tribunal and not for them. Also so that the appellant can understand the legal basis upon which the CSA will be mounting this argument.
21. There is one other matter where the CSA's very proper concessions do not, in my judgment, go far enough. It is conceded in paragraph 9 of the 'Statement of reasons' that the charging order cannot stand. I agree. The charging order must go (and with it the costs secured by it). And I agree with Mr Buley, and essentially for the reasons set out in paragraph 9 of the 'Statement of reasons', that this is not something I can properly deal with myself. On the contrary, it requires an appropriate application to be made to the Basingstoke County Court. But the CSA's preferred solution, as we have seen, is that the appellant should make the application to the Basingstoke County Court. Only in the alternative is it suggested that the CSA should itself make the application. I do not, with all respect to the CSA and Mr Buley, think that this is entirely satisfactory.
22. In my judgment, principle and pragmatism both dictate that the application should be made by the CSA. Principle, because the charging order was obtained by the CSA on the back of a liability order which I have now quashed because the justices who made it were misled by the CSA and also because in these circumstances the cost and burden of obtaining the necessary order from the Basingstoke County Court should fall on the CSA and not on the appellant. Pragmatism, because it will be much easier and quicker for the CSA to obtain the order than it may be for the appellant. Any judge in the County Court could be forgiven for viewing with particular care an application by someone in the appellant's position to set aside a charging order. If the application is made by the CSA, which after all stands in the position of a judgment creditor, and particularly if the CSA produces copies of my order and of this judgment, I imagine that the appropriate order will be made without the slightest difficulty.
23. It is right to record that, once I had made my views clear on the point, the CSA readily accepted that it should make the application and indeed offered an appropriate undertaking to ensure that it did so.
24. In the circumstances the order I make (in large part following the draft supplied by the CSA under cover of its letter of 10 February 2006 but now incorporating the Secretary of State's undertaking) is in the following terms:

"UPON the Secretary of State undertaking to make an application, within 21 days of service of this order, to the Basingstoke County Court, to set aside the interim and final Charging Orders made on 24 January 2005 and 9 March 2005 respectively

IT IS ORDERED THAT:

1 This claim be transferred to the Administrative Court, Queen's Bench Division of the High Court of Justice, to be treated as a claim for judicial review in accordance with CPR Part 54.

2 The Andover Magistrates' Court ("the Magistrates") be substituted as Defendant, and service of the claim on the Magistrates be dispensed with.

3 The Secretary of State for Work and Pensions be substituted as interested party.

4 Pursuant to CPR 3.1(2)(a), the time limit for bringing this claim be extended to 7 February 2005.

5 Permission to apply for judicial review is granted.

6 The liability order made pursuant to section 33 of the Child Support Act 1991 by the Magistrates on 24 August 2004, against the Claimant, in the sum of £20,850.37, be quashed, and the interested party's application for a liability order, dated 5 May 2004, be remitted to the Magistrates for rehearing by a differently constituted bench of Magistrates.

7 There be no order as to costs."

25. This order will be readily understood by any lawyer. But for the benefit of the appellant I should just explain that paragraphs 1–5 have the effect of turning his incompetent appeal to the Family Division into a proper application to the Administrative Court for judicial review. The important parts of the order from the appellant's point of view are the opening words and paragraph 6. Paragraph 6 quashes – sets aside – the liability order made by the justices on 24 August 2004. The opening words ensure – because the Secretary of State has given a formal undertaking to the court to this effect – that the charging order will be set aside.
26. The appellant did not seek any order for costs. Mr Buley accepted that there should be no order for costs in relation to the period prior to the receipt by the appellant of the CSA's letter of 10 February 2006. But he submitted that the CSA should have its costs thereafter, on the basis that the appellant should have submitted to the proffered consent order without requiring the further hearing on 28 February 2006. I do not agree with Mr Buley. There were, as I have already indicated, two difficulties with the 'Statement of reasons' and it should not be assumed that I would have agreed to dispense with the hearing even if the appellant had been prepared to submit. Moreover, whatever arguments there may be as to why the CSA should have its costs after 10 February 2006, it should not be forgotten that the appellant, if he had pressed for them, would have had good grounds for seeking his costs prior to that date. In all the circumstances I think that justice is best done to both parties if I make no order as to costs.
27. I repeat for the appellant's benefit what I said to him at the end of the hearing on 28 February 2006. He may have won this particular battle, but he must not assume that he has won, or that he will ever win, his war with the CSA. All that I have done – all that I can do at this stage – is, as it were, to wind the clock back to the position as it was immediately before the hearing on 24 August 2004. As paragraph 6 of my order makes clear, there will have to be a rehearing by the Magistrates' Court of the CSA's application dated 5 May 2004 for a liability order. The only difference is that the new hearing will be before a different bench of justices and that the CSA will be seeking a liability order in the sum of £19,853.13 rather than £20,850.37.
28. The appellant also needs to bear two other matters in mind. The first is that it may be – I emphasise for the benefit of all concerned that I express no views on the matter one way or the other; I merely draw attention to what is likely to be the CSA's stance – that some of the issues which the appellant wishes to raise are properly matters for the Child Support Appeal Tribunal and not for the justices. For that reason, indeed for any number of reasons, the appellant may yet find himself subject again to a liability order. The other point is this. If, for whatever reason, the CSA succeeds in obtaining another liability order from the justices, the appellant must recognise that the CSA is likely then to go back to the County Court with a view to obtaining a new charging order.
29. Before parting with this case there are two final matters I must mention. Both relate to the question of how one is supposed to appeal from justices in a matter such as this.
30. This is the third occasion in as many months when I have been faced with an appeal from justices in a CSA matter where the appeal has been incompetent. In two of these cases the appellant was appearing in person. In the other case the appellant was represented by solicitors. In two of the cases matters had not been helped by seeming uncertainty on the part of the Magistrates' Court as to the appropriate process of appeal. In each case the appeal was wrongly brought by notice of motion in the Family Division. There is no such basis of appeal.
31. I repeat what I have already said. I do so in the hope that from now on the correct position will be understood by all concerned: understood by would–be appellants, understood by their legal advisers and, indeed, understood by court staff, whether in the Magistrates' Court or in the High Court, who are faced with litigants in person seeking guidance as to how to appeal from a decision of justices in a CSA matter.
32. The only method of appeal from justices in a CSA matter such as this is an appeal by way of case stated under section 111 of the Magistrates' Court Act 1980. In the case of such an appeal there is a very short time limit that cannot be extended. If authority for these proposition is required it is to be found in T v Child Support Agency [1998] 1 WLR 144, Re L (Family Proceedings Court) (Appeal: Jurisdiction) [2003] EWHC 1682 (Fam), [2005] 1 FLR 210, and Hickerton v Child Support Agency [2006] EWHC 61 (Fam). To these there can now be added my judgment in this case. I hope it is the last time that the point has to be made.
33. The other matter is this. Both in Re L (Family Proceedings Court) (Appeal: Jurisdiction) [2003] EWHC 1682 (Fam), [2005] 1 FLR 210, and again in Hickerton v Child Support Agency [2006] EWHC 61 (Fam), I drew attention to the needless complexities of the various regimes governing appeals from the Magistrates' Courts and Family Proceedings Courts in 'family' cases, in which expression I include appeals from the justices in CSA matters. And I observed that thus far, so far as I was aware, nothing effective had been done to remedy matters, despite complaints from the judges now extending back for well over a decade.
34. In Hickerton v Child Support Agency [2006] EWHC 61 (Fam) I drew attention to the fact that last year the Family Procedure Rules Committee considered the general question of routes of appeal in family proceedings. I continued at para [31]:

"It identified the reform of routes of appeal from the Magistrates' Courts and Family Proceedings Courts as something which was long overdue, universally agreed and standing high on its list of priorities. If I may be permitted to say so I welcome that intervention and trust that early action will be taken by those with the power to give effect to the Committee's recommendations."

35. I continued at para [32]:

"The key requirement, as the Committee put it, and I wholeheartedly agree, is that the appeal system must be clear, coherent and as simple as possible for the litigant to understand and operate. At present the system is none of these things. I would venture to suggest that any sensible regime for appeals, particularly from justices, should not merely be comprehensive but also be simple and readily comprehensible both to litigants in person and, dare I say it, also to court staff. The painful history of the appellant's endeavours to get his appeal before the court in this case does not suggest that the relevant law is as accessible to all concerned as it should be."

36. I make no apologies for repeating myself. The present case is yet another illustration of why reform is needed, urgently needed.