Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 32
A147/13	OPINION OF LORD BURNS in the cause ALAN FEE (AP) Pursuer; against THE CHILD MAINTENANCE AND ENFORCEMENT COMMISSION Defender: ________________

Pursuer: Jamieson, Advocate; Francis Gill & Co (for Thompson & Brown, Glasgow)

Defender: Bartos; Harper Macleod LLP

20 February 2014

[1] This case called on the procedure roll before me on the motion of both parties on 23 January 2014. Mr Bartos addressed me on behalf of the defenders and asked me to sustain the first and second pleas-in-law on behalf of the defender and dismiss the action. The first plea for the defenders is a plea of competent and omitted and the second plea is one of relevancy. Mr Jamieson appeared on behalf of the pursuer who has a preliminary plea of relevancy. He asked me to sustain that plea and pronounce decree de plano.

Background

[2] The pursuer is the father of a child who was born on 4 June 1994. Subsequent to the birth of their child, the pursuer and his wife separated and then divorced. His ex-wife retained care of the child. It is averred in condescendence 2 that, subsequent to the separation from his ex-wife, the pursuer resided at various addresses with a number of different partners.

[3] The defenders are the Childcare and Enforcement Commission also known as the Child Support Agency. On or about 10 October 2000, they issued an Interim Maintenance Assessment (IMA) for payment by the pursuer of child support in respect of the child of £117.08 per week from 11 October 2000. A copy of that IMA is incorporated brevitatis causa in the defenders pleadings. It is 7/1 of process and the pursuer's address is stated therein as "30 Kilmuir Road, Arden, Glasgow, G46 8BQ". It contains information in relation to the child maintenance of £117 per week in respect of the child, gives a contact telephone number if the pursuer required further information and also gave details of certain rights of appeal available against the IMA. The defenders also aver that on 19 April 2001 a statement was issued to the pursuer at a different address, namely 8 Inverewe Drive, Deaconsbank, Glasgow, G46 8TH, and on 30 July 2001 a letter was issued to the pursuer at his request to that same address. Those letters are produced as 7/2 and 7/3 of process. Those documents are referred to for their terms by the pursuer beyond which no admission is made. The contention of the pursuer on Record is that the pursuer never received notification of the IMA of 10 October 2000. Although he did live at 30 Kilmuir Drive "in or around 2000/2001" (see page 7D of the Record), he avers at page 9A that there are 8 individual flatted properties there and the flat in which the pursuer lived was not specified in any intimation which might have been made.

[4] On 13 May 2008, the defenders submitted two summary applications for liability orders under section 33 of the Child Support Act 1991 to the Sheriff at Paisley. A copy of those applications are at 7/5 and 7/6 of process. 7/5 of process relates to unpaid child maintenance of £2,940.83 which arises from an assessment dated 16 November 2006. 7/6 of process relates to unpaid child maintenance of £20,937.57 in respect of the IMA dated October 2000. The pursuer lodged objections thereto in his own handwriting dated 15 July 2008. On 28 April 2009 and 18 February 2010 the sheriff granted a liability order in respect of both applications. 6/1 of process is an extract liability order in respect of the summary application relating to the unpaid maintenance of £2,940.83. 6/2 of process is the extract liability order in relation to the unpaid maintenance of £20,937.57. Each have liability of expenses of £2,100.57 added to them.

[5] Although it is unclear from the Record, I understand that the conclusions are directed only to the liability order dated 28 April 2009 and 18 February 2010 which relate to the unpaid maintenance of £20,937.57.

[6] The pursuer seeks reduction of the pretended liability orders dated 28 April 2009 and 18 February 2010 on the basis that he never received notification of the IMA which fixed his liability to maintain the child at £117.08 per week and was therefore never given an opportunity to challenge that maintenance decision before an Appeal Tribunal. It is pointed out at condescendence 6 that in terms of section 33(3) of the 1991 Act "a sheriff must make an order if satisfied that payments in question have become due."

[7] In answer 6, the defenders admit that, in terms of section 33(3) of the 1991 Act, a sheriff must make a liability order if satisfied that payments in question "have become due" but aver that the pursuer had an opportunity to challenge the IMA following notification to him. His remedy was to appeal to the Appeal Tribunal under section 20 of the 1991 Act. It is also averred that esto he did not receive intimation of the IMAs and his appeal rights, which is denied, his remedies were in the summary application process to plead that the IMAs were ineffective due to lack of intimation with the result that payments thereunder had not become payable in terms of section 33 of the 1991 Act et separatim to appeal against the IMA to the appeal Tribunal under section 20 of the 1991 Act. It is pointed out that he made written statements in answer to the summary applications for the liability orders but did not claim therein that he was unaware of the IMAs because they had not been notified to him. His opposition to the orders was based on the quantum of the maintenance payable being excessive on the grounds that he had made voluntary payments in respect of the child to his ex-wife.

[8] The issue between the parties on Record appears therefore to be whether or not the pursuer is entitled to reduction of the liability orders pronounced by the sheriff in circumstances where the pursuer contends he never received notification of the original IMAs on which the liability orders were based but failed to raise the matter of alleged lack of notification in his objections thereto. The pursuer maintains that the sheriff was precluded from entertaining any objection to the liability order based on a failure to notify the pursuer of the original IMAs. That was because of the terms of section 33 of the 1991 Act and subsections (3) and (4) in particular. Accordingly, the pursuer submits that he is now required to proceed by way of reduction in this court of the liability orders as a form of equitable remedy against the pronouncement of those orders. The defenders, on the other hand, contend on Record that it was open to the pursuer to argue before the sheriff that the maintenance assessments were "ineffective due to lack of intimation with the result that payments thereunder had not become payable in terms of section 33 of the 1991 Act" (see page 20C) and further he had, in any event, a statutory remedy under the 1991 Act to appeal to the Tribunal against the IMAs. The defenders maintain that, in that situation, there are no exceptional circumstances which would justify this court granting the remedy of reduction and, accordingly, the action is irrelevant and ought to be dismissed. Further, a plea of "competent and omitted" is advanced on the basis that it was competent to advance a defence to the applications for liability orders on the basis of a lack of notification to the pursuer of the IMAs. Having omitted to advance such a defence to the sheriff, the present action is rendered incompetent in terms of that plea-in-law.

The defenders' submissions

[9] Mr Bartos, who opened the debate on behalf of the defenders, asked me to sustain his first and second pleas-in-law. In relation to the second plea, that of relevancy, he submitted that the pursuer could have raised the question of notification of the IMAs before the sheriff who would then have required to deal with that matter in considering whether to grant the liability orders. As I understood the submission, Mr Bartos' position was that the terms of section 33 of the 1991 Act did not preclude the sheriff from entertaining an objection based on non-notification of the IMAs. However, in this case the pursuer, while he advanced objections relating to quantum, made no point about lack of notification and, consequently, the sheriff had no cause to consider whether or not the pursuer was a liable person in terms of section 33(1) or whether the payments in question had become payable by the liable person in terms of section 33(3).

[10] Mr Bartos referred me to the case of Bain v Hugh L S McConnell Ltd 1991 SLT 691 where the Inner House made observations in relation to the circumstances under which this court could entertain actions of reduction. The court was dealing with an action of reduction brought against the sheriff's interlocutor dismissing an action of damages pronounced ex proprio motu. It was argued by the defenders that reduction of the sheriff's decree was not competent since other means of review had been provided and had either been initiated or parties had failed to take advantage of them (see page 695F). Reference was made to the speech of Viscount Dunedin in Adair v Colville and Sons Ltd 1926 SLT 590 at 592. The Lord Justice Clerk stated that Viscount Dunedin "was at pains to point out that it was not possible to define categorically the cases in which reduction was competent". He also stressed the importance of there being a miscarriage of justice if reduction was to be justified. He quoted Viscount Dunedin as follows: "But of this I am certain that, unless a miscarriage of justice is affirmatively and clearly shown, there is no room for reduction" (see page 593 of Adair). In addition, Lord Carson had made it plain that reduction will be competent if the pursuer can "establish that there was such a miscarriage of justice as renders the whole proceedings fundamentally null" (see page 599 of Adair). The Lord Justice Clerk, delivering the opinion of the court, was satisfied that the pursuer's pleadings revealed sufficiently exceptional circumstances justifying reduction of the sheriff's decree. Not only had the sheriff pronounced decree of dismissal ex proprio motu but it was clear from the pleadings that there had been an agreement between the parties that the interlocutor of the sheriff should be recalled but a mistake on the part of the pursuer's solicitors had brought about a result which neither party wanted. In the circumstances, the Inner House affirmed the interlocutor of the Lord Ordinary who had allowed a proof before answer.

[11] Mr Bartos contended that there were no exceptional circumstances averred on Record by the pursuer that would justify the court pronouncing a decree of reduction of the liability orders in question. The pursuer complains that he had not received notification of the IMAs and, as a consequence, had proceeded to make voluntary payments in respect of the child to his ex-wife, which he would not otherwise have made. That position could have been advanced before the sheriff but the pursuer failed to do so.

[12] In addition, the pursuer did not aver that, were the matter remitted to the sheriff to consider the granting of the liability orders de novo, the outcome would be any different. It was clear that, at some stage after the IMAs had been made, the pursuer became aware of them and was in contact with the Child Support Agency. At page 10C of the Record, the defenders aver that "from time to time the pursuer was issued with child maintenance statements and letters which indicated to him the extent of his arrears of payment". Reference is made to the letter of 19 April 2001 and another of 30 July 2001 as stated above. Those documents are referred to for their terms by the pursuer beyond which no admission is made by him. Accordingly, Mr Bartos submitted that there was no compelling need for these liability orders to be reduced. No substantial miscarriage of justice had occurred as a result of the proceedings before the sheriff which could be said to render those proceedings fundamentally null.

[13] In relation to the defenders first plea-in-law of "competent and omitted", Mr Bartos referred me to the case of Dickson v United Dominions Trust 1988 SLT 19, a decision of Lord McCluskey in the Outer House. In that case the defenders advanced a plea of competent and omitted against the pursuers for their failure to advance a line of defence in sequestration proceedings in respect of which reduction was sought. Lord McCluskey concluded that it had been competent for the pursuers to have advanced that line of defence but they had omitted to do so and it was too late to do so. He quoted with approval an article by Paul R Beaumont in 1985 SLT (News) page 345 et seq. In particular, he quotes the following:

"The plea of competent and omitted in Scotland can prevent a party from relying on a matter of fact or law that he could have pleaded in a previous action between the same parties but omitted to plead... The plea of competent and omitted in Scotland applies where the parties are the same as in the previous action and the defender in the first action pleads a matter of fact or law in the second action that he could competently have pleaded in the first action but omitted to do so. The policy behind the plea of competent and omitted - to prevent the litigious from overthrowing the innocent and the rich, the poor, by wearing them out - is an admirable one. There is a rational justification for saying that a party has to accept that a consequence of his own negligence in omitting to plead a matter of fact or law in an earlier action is that he is barred from doing so in a subsequent action."

[14] Mr Bartos submitted that the matter of the informal payments said to have been made by the pursuer to his ex-wife in ignorance of the maintenance assessment could have been raised before the sheriff in the summary application process. In addition, the alleged lack of notification was a matter which competently could have been raised and it had been incumbent for the pursuer to do so. Lord McCluskey's judgment on this matter was approved by the Inner House in Dickie v Goldie 1995 SLT 780 at 785. In that case, Lord Penrose quotes from the unreported opinion of the second division in Dickson v United Dominions Trust Ltd where the Lord Justice Clerk stated

"I find myself in complete agreement with what the Lord Ordinary has said on the issue of competent and omitted."

Lord Penrose also quoted Lord Robertson's opinion to the following effect:

"It is not competent to reduce a decree in foro in the Court of Session upon grounds which one of the parties could have put forward before decree, but neglected so to do."

Mr Bartos submitted that since the pursuer could have objected to the making of a liability order before the sheriff on the basis that he had not received a notification of the IMAs, he could not now do so in an action of reduction before this court in the absence of exceptional circumstances.

[15] Upon inquiry from me as to the requirements of notification of a maintenance assessment in terms of the 1991 Act or any regulations thereunder, Mr Bartos referred me, first, to regulation 1 of the Child Support (Maintenance Assessment Procedure) Regulations 1992/1813, sub-regulation 6 which provided as follows:

"(6) Except where express provision is made to the contrary, where, by any provision of the Act or of these Regulations-

...

(b) any document is given or sent to any person, that document shall, if sent by post to that person's last known or notified address, and subject to paragraph (8), be treated as having been given or sent on the second day after the day of posting..."

He also referred me to the Child Support (Maintenance Calculation Procedure) Regulations 2001/157, regulation 2 of which is in the following terms:

"2. Except where otherwise stated, where: ...

(b) any document is given or sent to any other person, that document shall, if sent by post to that person's last known or notified address, be treated as having been given or sent on the day that it is posted."

There was, accordingly, a presumption in terms of those regulations to the effect that if a document is sent by post to a person's "last known or notified address" that person is treated as having been given it on the second day after the day of posting, accordingly to the 1992 Regulations and on the date that it was posted according to the 2001 Regulations. In terms of regulation 10 of the 1992 Regulations, a person with a right of appeal to the First-tier Tribunal under the 1991 Act "shall be given notice of that right and of the decision to which that right relates". In addition, Mr Bartos referred me to regulation 1 of the Social Security and Child Support (Decision and Appeals) Regulations 1999/991 in force between July 2000 and November 2008. Regulation 1(3) of those Regulations provides, inter alia, as follows:

"the date of notification" means-

(a) the date that notification of a decision of the Secretary of State is treated as having been given or sent in accordance with regulation 2(b)"

Regulation 2(b) of the 1999 Regulations is in similar terms to regulation 2(b) of the 2001/157 Regulations.

[16] I was also referred to regulation 31 of the 1999 Regulations which provides for the time within which an appeal from a decision of the Secretary of State to the Appeal Tribunal requires to be brought. By regulation 31(1)(a) that appeal must be brought within one month of the date of notification of the decision against which the appeal is brought. However, regulation 32 allows for late appeals and the time within which an appeal must be brought may be extended in certain circumstances. However, no appeal can be brought more than one year after the expiry of the last day for appealing under section 31. An application or an extension of time cannot be granted unless the Tribunal is satisfied that it is in the interest of justice for the application to be granted. Regulation 32(5) provides that it is not in the interests of justice to grant such an application unless the Tribunal is satisfied, either that certain special circumstances specified in paragraph 6 are relevant or that some other special circumstances exist which are wholly exceptional and relevant to the application.

[17] Accordingly, Mr Bartos argued, while the sheriff could have entertained a challenge to the making of a liability order before the sheriff on the basis of lack of notification, the pursuer would be deemed to have been notified of the IMAs if the Secretary of State was able to demonstrate that they had been sent to the pursuer's last known or notified address. If he had not received notification of the assessments but had become aware of them through subsequent correspondence with the defenders after the assessments had been made, he could have appealed to the Appeal Tribunal as long as he did so within one year of those assessments being made. While it may be that the sheriff would not have sustained the arguments, the pursuer would have had a right of appeal to the sheriff principal against such adverse decision. In fact, he failed to argue these matters before the sheriff and subsequently abandoned an appeal to the sheriff principal against the making of a liability order.

The pursuer's submissions

[18] Mr Jamieson for the pursuer asked me to sustain his first plea-in-law and in so doing to excise from the defenders' pleadings the averments from the word "esto" on page 20, letters A to B, to the end of answer 6. He asked me to allow a proof. He submitted that the pursuer sought an equitable remedy and the court should look broadly at the circumstances advanced. The pursuer complains that he never got the IMAs which were apparently made in October 2000. He accepts on Record that he had contact with the Child Support Agency thereafter in respect, for example, of deductions made from his salary. Because of the granting of the liability orders by the sheriff, the pursuer is now subject to enforcement procedure at Glasgow Sheriff Court. In that process, the sheriff has questioned the matter of intimation and the matter is sisted and the Child Support Agency had undertaken to provide evidence that intimation had in fact been made of the IMAs in 2000. The pursuer has never sought to escape liability for the maintenance of his son and he made payments as averred for example at page 15, letter E. In addition, the pursuer has been given contradictory information from the defenders. For example, he pleads at page 12, letter C that in 2004 the defenders wrote to him to advise that "the case had been closed with effect from 17 May 2004".

[19] There were, accordingly, equitable considerations that should move the court to allow the remedy of reduction of the liability order after proof. As to the proposition that the pursuer advanced no grounds of a miscarriage of justice, Mr Jamieson argued that the facts and circumstances he had detailed gave rise to an unjust situation which the court ought to remedy. In addition, although he had challenged the application for liability orders, he was not legally represented at that time, it was clear that he was not contesting liability to maintain his son and it would be harsh to conclude that he ought to have been aware of the need to raise the question of the notification of the original assessments upon him.

[20] However, the main thrust of the pursuer's submissions was that, because of the terms of section 33 of the 1991 Act, the sheriff was precluded from entertaining or considering an argument from the pursuer that the liability order should not be made due to lack of notification of the IMAs.

[21] For that proposition, Mr Jamieson referred firstly to the case of Secretary of State for Social Security v Nicol 1996 SC 510. In that case the Secretary of State appealed against the sheriff's refusal to make a liability order. The sheriff refused because he considered that an appeal by the person liable to make payments of child support maintenance to the appeal tribunal suspended the operation of the order, following the common law rule set out in Kennedy v M 1995 SLT 717 that an appeal process suspended the order of a lower court.

[22] The court disagreed with that under reference to the terms of section 33(3) and held that the sheriff was obliged to grant the order sought by the Secretary of State. The sheriff was not acting in any appellate capacity and was not concerned with the merits of the case. He was simply required to grant the order provided he was satisfied that, firstly, the payments in question have become payable by the liable person and, secondly, that they had not been paid. There was nothing in the legislation which suspended that liability so that the payments in question were no longer payable and the common law rule which holds that an appeal would suspend the order of a lower court did not arise in the context of the statutory scheme under discussion.

[23] Mr Jamieson also referred to Farley v Secretary of State for Work and Pensions (No 2) [2006] 1 WLR 1817. In that case, the House of Lords was considering the interpretation of section 33 of the 1991 Act and, giving the judgment of the House, Lord Nicholls of Birkenhead at paragraph 23 concluded that section 33(4) precludes the justices in England from investigating whether a maintenance assessment, or maintenance calculation, is a nullity. Such an investigation is a matter that would have to be pursued through the appeal structure set out under the 1991 Act. At paragraph 16 his Lordship states that upon an application for a liability order, the Magistrates' court in England must proceed upon the basis that the assessment in question was "lawfully and properly made". The court is precluded from questioning that assessment or any aspect of it. The court's function is to check that the assessment relates to the defendant brought before the court and that the payments in question have become payable and have not been paid. Any question relating to the lawfulness of the assessment required to be raised within the context of the statutory appeal process. An effective means of challenging the validity of a maintenance assessment was provided within that statutory structure which was part of a statutory scheme allocating jurisdiction to determine the validity of such an assessment and the decision whether a defendant is a "liable person" to "a court other than the Magistrates' court" (see paragraph 18).

[24] Mr Jamieson also referred me to the case of Corstorphine v Kasten (1898) 1F 287 a decision of the Inner House. However, that decision relates to the validity of a citation of a foreign person at a place of residence at which he stayed for 40 days and whether he could be lawfully cited beyond the 40 day period under an Act of the old Scottish Parliament of 1540. That case turned upon the proper reading of that Act and a practice which had developed thereafter and is not, in my view, of assistance in the circumstances of this case.

Discussion and Decision

[25] I proceed for the purposes of the debate before me on the basis that the defenders did make the IMAs to which this action relates but that pursuer did not physically receive notification of them. It does not matter for those purposes whether that was because the address used by the defenders was incomplete or because that pursuer had, by the time it was sent (if it was sent), moved to another address.

[26] The first question in those circumstances comes to be whether it would have been open to the sheriff in the process for summary application to entertain an objection or challenge to the making of a liability order based on non-notification had such an objection been taken by the pursuer. While I acknowledge the difficulties which a lay person may be under in attempting to navigate through the complexities of the Child Support legislation, I am not prepared to hold that it was unreasonable to expect someone in the position of the pursuer to raise such a fundamental issue as non-notification. He was prepared to enter the process and explain his position in writing to the sheriff and there was nothing to prevent him from pointing out so important and obvious a consideration. It appears from the cases to which I was referred on the plea of "competent and omitted" that the court will look to whether the matter of fact or law which a party failed to advance in the previous proceedings was one which could have competently been advanced as opposed to examining subjectively whether it was reasonable to expect him to have done so (see McLaren Court of Session Practice page 401). I consider that a similar approach should be taken when considering the relevancy of the pursuer's pleadings in an action of reduction of the merits of a decree in foro, although the question at issue there is whether the pursuer has pled a relevant case justifying the remedy of reduction.

[27] Had such an objection been made, I consider that the sheriff would not have been precluded by the terms of section 33 of the 1991 to entertain it and, if not satisfied that the legislative requirements of notification had been complied with, would have been entitled to refuse the applications.

[28] Section 33(1) of the 1991 Act provides that liability orders can be applied for against a person "who is liable to make payments of child support maintenance" and who fails to make such payments. Section 33(3) requires the sheriff to make the order "if satisfied that the payments in question have become payable by the liable person and have not been paid". Section 33(4) precludes the sheriff from questioning the maintenance assessment (now calculation) under which the payments fell to be made. As is made clear in Farley, that means that the sheriff's jurisdiction to question any aspect of the assessment is "ousted" on the basis that the statutory appeal structure specifically provides for the validity of the assessment to be investigated elsewhere. However, that is not to say that the sheriff's jurisdiction to inquire as to whether the assessment was notified in terms of the statutory scheme in the first place is ousted. Section 33(3) requires him to be satisfied that the "payments in question have become payable" before he can make the order. That involves him being persuaded that the person was notified of the assessment since, if he was not, it could not be said that the payments which are the subject of the liability order, had become payable. Nor would he have obtained notice of his rights of appeal and the time limits imposed thereon. If the matter was raised, the onus would be cast upon the Child Support Agency to demonstrate that the statutory requirements as to notification had been complied with. In the circumstances such as were present before the sheriff, namely where the "liable person" had entered the process and advanced objections to the making of the order, the sheriff was not required, in my view, ex proprio motu, to raise the question of notification.

[29] The provisions in the Regulations cited to me are numerous and have changed frequently but if those which I understand to have been in force in October 2000 are considered, it can be seen that regulation 7 of the Child Support (Collection and Enforcement) Regulations 1992/1989 required the Secretary of State to send to the liable person a notice stating the amount of child support payable as soon as is reasonably practicable after the making of the assessment. Regulation 1(3)(b) of those Regulations provided that the person is deemed to have been given a document two days after posting, if it is sent by post to the last known or notified address. Regulation 10(1) of the Child Support (Maintenance Assessment Procedure) Regulations 1992/1813 provided that a person with a right of appeal to the appeal tribunal "shall be given notice of that right and of the decision to which that right relates". Regulation 1(6)(b) of those Regulations provides for the "deemed giving" of notification in very similar terms to regulation 1(3)(b) of the Collection and Enforcement Regulations. Accordingly, the statutory scheme required notification (as defined in regulation 1(3)(b) of the 1992/1989 Regulations and 1(6)(b) of the 1992/1813 Regulations) of the assessment and of the rights of appeal.

[30] I conclude that the sheriff would have been entitled to refuse to make the liability orders if he could not be satisfied that those provisions had been complied with since the pursuer would not have been "a liable person" in respect of whom the payments "have become payable" in terms of section 33(1) and (3) of the 1991 Act. The pursuer would only become the legitimate subject of a liability order if the statutory requirements of notification had been complied with. I do not consider that in doing so he would have in any way exceeded the jurisdiction granted to him by section 33 of the 1991 Act. Further, I consider that this matter does not fall within the scope of the limitations of the sheriff's jurisdiction as set out in the case of Farley. The sheriff would not have been acting in an appellate capacity nor would he have been questioning whether the assessment was lawfully or properly made. He would only have been checking "whether the payments in question have become payable" (see paragraph 16 of Farley). I consider that this approach is consistent with the final paragraph of the Inner House decision in Secretary of State v Nicol (cited above). It would not require the sheriff to be concerned with the merits of the case but to address one of the two points identified by section 33(3) namely whether the sums had become payable.

[31] I next turn to consider what the test for the purposes of relevancy of an action for reduction of this type is. No argument was directed to this matter but it may be that the test is less exacting than simply asking whether the pursuer could competently have advanced the issue of non-notification. The matter was approached in Bain, for example, on a somewhat wider basis since the court had regard to whether the pursuer could show that reduction was necessary to produce "substantial justice", but what was in issue there was a reduction of a decree, not on the merits, but on the basis of fundamental nullity (see the opinion of the Lord Justice Clerk said at page 695K). Here, the pursuer seeks to reduce a decree pronounced in foro on its merits and it is necessary in my view that he avers exceptional circumstances, resulting in substantial injustice, which would justify this court in striking down the decree of the sheriff.

[32] The pursuer offers to prove that he never got notification of the assessments and, had he got them, he would not have made the voluntary payments to his ex-wife that he did. Furthermore, he contends that the issue of failure to notify was one which could not be raised before the sheriff, even if he, as an unrepresented party, had attempted to do so (see, for example, condescendence 6). I do not consider that these circumstances are habile to justify the remedy sought. I have concluded that the pursuer is wrong in law in his contention that the sheriff's jurisdiction to deal with the matter of notification was ousted by section 33 of the 1991 Act. In those circumstances, it cannot be said that some clear miscarriage of justice has occurred here due to exceptional circumstances due to non-notification per se. He had the opportunity to challenge the making of the liability orders and to inform the sheriff that he had not received notification of the assessments or of his rights of appeal against them. The sheriff would have required to deal with that challenge. The Secretary of State would have required to satisfy the sheriff that the statutory requirements of notification had been complied with. I do not need to speculate on what the result of that challenge would have been. Had the decision been against him, the pursuer would have been entitled to appeal to the sheriff principal (as he in fact did on another point) and beyond.

[33] I am entitled to have regard to the fact that he entered the sheriff court process and advanced objection to the orders sought and was thus aware that they could be challenged. The applications specified not only the total sums due (£20,937.57) but that the assessments had been made on a particular date (9 October 2000) and their effective date (11 October 2000) was also specified. The weekly amount thereby assessed was specified (£117.08). He was therefore informed of the precise details of assessments which were the subject of the applications. Had he not been given notice of these matters, it was for him to say so in the objections which he advanced. The matter of non-notification is a fundamental one and, if he had not received them, he ought to have said so. I consider, therefore, that the pursuer has not averred a relevant case anent non-notification to support the conclusion of reduction sought.

[34] I cannot reach any conclusion on the question as to whether the pursuer could have exercised any statutory right of appeal against the IMAs if he did not receive notification in October 2000. The Decision and Appeals Regulations provided for the possibility of an appeal within one year and one month of the date of notification (ie about the end of November 2001). The defenders plead that they sent out letters on 19 April and 30 July 2001. It could be said that these should have alerted the pursuer to the existence of the previous assessments of October 2000 within such time to allow him to argue before an appeal tribunal that a late appeal should be allowed to proceed. But that matter was not pressed by Mr Bartos and, in any event, depends on proof that they were posted and the pursuer does not make any admission about them, other than to refer to them for their terms.

[35] However, the matter does not end there since the pursuer also avers that he made payments to his ex-wife in respect of the maintenance of his child (see Condescendence V pages 15-16) and he claimed in his objections to the liability orders that he had done so. In that context, the defenders aver at page 18 that the sheriff "could not question the terms of the IMA or maintenance calculations" and that was something that the pursuer could have challenged by means of an appeal to an appeal tribunal. Since it appears to be the position of the defenders on Record that the issue of whether the pursuer had made "informal" payments was not something which the sheriff could have adjudicated upon, it seems to me that this is an issue in which it is at least arguable that the pursuer has pled a relevant case for inquiry. If it be the case that he made such payments and the sheriff was precluded from having regard to them in the summary application process, then I consider that this court could find that sufficiently exceptional circumstances exist to warrant reducing the liability orders.

[36] Accordingly, I will allow a proof before answer on the following issues. First, whether or not the pursuer did receive notification of the IMAs. Secondly, whether, if he did not, he nevertheless could have appealed to the appeal tribunal under the relevant regulations on the basis that he did receive notification of the letters of 19 April and 30 July 2001. Thirdly, whether he did make "informal" payments to his ex-wife during the relevant periods by way of cash and "payments in kind" and, if so, the value thereof. Fourthly, whether the IMAs could have been reduced by any such payments.

[37] So far as the plea of competent and omitted is concerned, I have found that the pursuer could competently have advanced a defence of non-notification before the sheriff. It is clear that a pursuer is precluded from challenging a prior judgement on the grounds of a defence which was a competent one but which he omitted to set up (see Maclaren page 401 cited above). This pursuer was aware that he had not received notification of the IMAs in 2000 and, as set out above, the terms of the applications for liability orders gave him notice that those assessments were being founded upon as the basis for the orders. Such a defence would have been relevant since it would have required the Secretary of State to demonstrate the statutory requirements of notification had been complied with. In those circumstances, I would have sustained that plea, had I not allowed a proof before answer as stated above.

[38] I will reserve the question of expenses meantime.