UKSSCSC CSCS_5_1997 (03 June 1998)
Mr. W. M. Walker QC CSCS/5/19973.6.98
Maintenance assessment – whether an extract copy of a minute of agreement registered in the Books of Council and Session constituted a court order under Scots law
The parent with care and the absent parent entered a Minute of Agreement to regulate inter alia custody of, access to and aliment for their child. The Minute of Agreement was registered in the Books of Council and Session for preservation and execution and an extract copy thereof obtained. The question arose as to the status in Scots law of an extract copy and whether it constituted the equivalent of a court order for the purposes of section 10 of the Child Support Act 1991 and regulation 3 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. The Commissioner considered the historical background and the development of this procedure.
Held, allowing the appeal, that –
- it remains the law of Scotland that an extract from the Books of Council and Session is an "order" for the purposes of the legislation cited (paragraph 12);
- an "order" required to be made under one of the enactments listed in regulation 3(1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 and it was evident that the Court of Session Act 1868 was included in that list since that Act secured that Court of Session decrees, including extracts which contain a warrant for execution, were within power and jurisdiction (paragraph 17).
DECISION OF THE CHILD SUPPORT COMMISSIONER
(1) the errors in paragraph 23 should be recognised and the child support officer should amend the assessment in the light of those findings;
(2) at the relevant time an order falling within regulation 3(1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 was in force so that the effective date of the maintenance assessment in this case falls to be two days after the assessment was made, all in terms of paragraph (5) of said Regulations, and the child support officer should amend the assessment accordingly.
Accordingly, I now refer the case to a child support officer to give effect to that decision and to the direction at the end of paragraph 8 below.
"The tribunal were satisfied that the minute of agreement entered into by the appellant was not a "maintenance order" within the terms of the Act and the Child Support (MAJ) Regulations 1992 as amended."
Again it was the extract that mattered and the tribunal should have explained the basis for their determination that as a matter of law that extract was not an "order" for the purposes of the legislation, or had not been made under one of the listed enactments, as the case might be. Their failure to do that was and is an error of law. For the reasons which follow I have reached the conclusion that their decision was also wrong in law. These are the grounds upon which I have set aside their decision.
"AND the said Lords grant Warrant for all lawful execution hereon."
A photocopy of the extract appears at document C4, albeit in a form heavily blacked through excessive zeal on the part of someone to protect the whereabouts of the parties. Since the document is a public document and anybody could have obtained a copy on payment of an appropriate fee, blacking was pointless.
"The register of deeds, probative writings, protests and certificates of judgment."
The last three words of that title are important and Maxwell goes on to say that:
"Registration of a deed or writ for execution gives the holder a decree of registration: such a decree is, in effect, a decree of the Court of Session, and on an extract all lawful diligence may proceed."
The child support officer would no doubt found upon the qualification "in effect". But, as Mr. Armstrong pointed out, in the authority cited by Maxwell, namely Taylor, Petr 1931 SLT 260, Lord Pitman, sitting in the Bill Chamber, had to consider whether an extract from the Books with a warrant of execution fell to be regarded as "a judgment ...obtained...in the Court of Session in Scotland" for the purposes of section 10 of the Administration of Justice Act 1920. He held that it did so having regard to various authorities to some of which I shall later turn, including Bell's Commentaries and Bell's Lectures. He said at page 261 that such a decree was:
"Just a decree issued summarily in virtue of the consent of the debtor. "The decree by consent, called a decree of registration, may generally be described as directly grounded on the registration of an obligation or contract in the books of a Court of competent jurisdiction by virtue of a previous consent incorporated in the obligation or contract. Proceeding on such consent a fictitious judgment is given forth by the Clerk of Court authorising all usual and necessary writs of execution as if by authority of the judge" (Bell's Comm., Book I. cap. l)."
And then he referred to a little history:
"Originally, registration for execution was a judicial act, and process could not be done 'without the judge be present to heir the samen red and interpone his authoritie thereto,' and in early days Counsel used to sign on behalf of the grantor of the bond (see Bell's Lectures, Book I, Title 9, cap.3; see also the Act 1584 cap. 4)."
Lord Pitman then went on to indicate how the procedure became fictitious in that:
"By Act of Sederunt of 9 December 1670 the Lords of Council and Session authorised the Lord Register and the clerks of Session, his deputes, to register bonds and therein to insert the consent of advocates as procurators, 'notwithstanding that the advocates do not subscribe their consent,' and this practice was followed until [a newer] practice was introduced by the Registered Writs Execution (Scotland) Act 1887."
Lord Pitman pointed out that however the procedure altered, and I would interpolate may have become even more of a legal fiction, nonetheless the decree implicit in an extract from the Books which includes a warrant of execution:
"...is nonetheless a decree of the Court of Session, and is, in my opinion included in the definition of judgment given in section 12 of the Act of 1920."
Mr. Armstrong in elaboration took me through a number of the institutional writers who have dealt with the matter but the practical effect is as rehearsed by Lord Pitman. Bell in his Lectures at the passage cited explains the advantages of the procedure as being less tedious and expensive than having to raise an action and then upon the debtor admitting or confessing the claim, judgment being passed against him. Mr. Armstrong indicated that he understood that such a procedure as the latter was akin to that in operation in England. Bell then narrates that the procedure in Scotland started as a regular although summary process before the court. It assumed
"that, at the request of the grantee or holder of the deed, but in the name of the grantor, and as authorised by his consent, and especially appointed by his procuratory, a Counsel or Agent duly qualified appears in court, producing the document of debt or claim, and moves the Judge to insert or register the document in the books of the court, and to interpone his decree in conformity with the consent or clause of registration therein expressed. The judge ordains the deed to be registered accordingly, gives the same the strength of his decree, and authorises legal execution in terms of the consent."
"...we cannot exhibit in detail the precise steps by which the existing practice gradually attains its present form, the statutes and authorities contain expression and indications sufficiently significant to leave no doubt that the modern extract of the registered deed, which contains indeed the substance and efficacy of a judicial decree, is merely the counterpart of the ancient judgment, pronounced after all the forms of a judicial process between the parties had been gone through."
Earlier he noted a practice and procedure very similar to that already noted from Bell. In light of those authorities Mr. Armstrong really accepted that an extract from the Books with warrant for execution contained a court order sufficient to fall within the section 10 of the Child Support Act and regulations 3 and 5 of the MAJ Regulations, subject of course, to one remaining question. I am happy to accept, and indeed was entirely persuaded, that however much the procedure may now be in the nature of a legal fiction, it remains the law that an extract from the Books with warrant for execution is an "order" for the purposes of the legislation with which I am concerned. That is because registration implicitly proceeded by virtue of a decree of the Court and in cases such as the present, for execution which gives rise to the warrant. It is in much the same status in law as an extract of a decree which has proceeded upon a joint minute to which the Court has interponed authority. In each case the textual substance of the decree is contained in a document other than the decree itself. But there remains yet another question.
"Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act."
Date: 3 June 1998 (signed) Mr. W.M. Walker QC