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Home > Judgments > 2013 archive

G v P [2013] EWCC

Application in the county court under Matrimonial Causes Act 1973, s 33 for an order for repayment of overpaid maintenance. Consideration as to whether an order must be ‘subsisting for the purposes of the section. Application granted.

This case concerned an application under Section 33 of the Matrimonial Causes Act 1973 for an order for repayment of overpaid maintenance.  The facts are both unusual and unfortunate.  The husband and wife had divorced and the final order in the ancillary relief proceedings, made on 12 July 2005, provided for the husband to pay the wife spousal maintenance of £950 per month for joint lives until her remarriage or cohabitation for a period of 6 months.  There was a further order for maintenance for the parties' daughter at £750 per month until she completed secondary education, or attained the age of 17, whichever was the later.

The wife remarried on 26 June 2009.  She informed the husband of her remarriage by text message, but not until August 2009, by which time the husband had paid her two further maintenance payments.  The husband contacted his bank to reduce the total payments from £1,700 to £750.  Unfortunately the bank mistakenly increased the payments to £1,750.  The husband did not realise until June 2011 (when he contacted the bank to stop the payments for the parties' daughter), by which time the wife had received 22 payments of an additional £1,000.

The husband made an application under s.38 MCA 1973 to recover the two payments between June and August 2009 and a further application under s.33 to recover the further 22 payments.  The wife agreed to repay the amounts claimed under s.38 and the matter was listed for final hearing in respect of the application under s.33. 

The district judge dealt with the question of jurisdiction as a preliminary issue at the outset of the final hearing.  He concluded that the wording of s.33 was such that the court would only have jurisdiction to make an order for repayment of overpaid maintenance if there was a subsisting order for periodical payments.  The order had, of course, ceased upon the wife's remarriage.  The effect of this decision was to limit the use of s.33 to a very small number of scenarios, such as where there had been a successful downward variation application or appeal and the paying party sought to recover the overpaid amounts.

The husband appealed and HHJ Kevin Barnett considered the construction of s.33 MCA 1973 as there was no statutory definition or judicial guidance as to how to interpret that section of the Act.  The judgment carefully analyses the wording of s.33 and concludes that the phrases "the person entitled to, or liable to make, payments under the order"; "the person so liable"; and "person liable to make payments under the order" do nothing more than define the relevant parties and set out who was liable to make and who was liable to receive payments under the order.  It did not require the order to be subsisting for the court to have jurisdiction to make an order.

The practical effect of the decision is that the scope for the court to make orders under s.33 is quite wide.  The applicant must show a change of circumstances of either the payer or payee and that the payee has received more that the payer was liable to pay.  The decision as to how much should be repaid is discretionary and based on what the court considers to be "just."  More often than not the paying spouse will know exactly when the maintenance payments are to stop but for those who, for whatever reason, allow the payments to continue after such liability has come to an end there is the hope of recovery under s.33. 

Summary by Andrea Watts, barrister, 1 King's Bench Walk
_________________________________________________

IN THE CHESTER COUNTY COURT
(On appeal from the Crewe County Court)

BETWEEN:

G Appellant

-and-

P Respondent

J U D G M E N T
His Honour Judge Kevin Barnett


Miss Andrea Watts of Counsel appeared for the Appellant
The Respondent
represented herself

This judgment is being handed down in private on 15th February 2013.   I give leave for it to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand, other note or recording shall be taken or made of this Judgment.  The following text represents the Judgment in its final approved form.


INTRODUCTION
1. This is an appeal from the decision of District Judge Pates sitting at the Crewe County Court on 13th September 2012.  On that date the learned District Judge was concerned with an application made by Mr G (the Husband) pursuant to sections 33 & 38 of the Matrimonial Causes Act 1973 (the Act).  The respondent to that application was the Husband's former wife, Mrs P (the Wife).  In the event, there was no dispute in relation to the minor part of the application, i.e. that pursuant to section 38 of the Act, but the jurisdiction of the Court to entertain that part of application made pursuant to section 33 was raised and treated as a preliminary issue.  The District Judge, for reasons given in an extempore judgment, determined that there was no jurisdiction.  Accordingly, he dismissed the Husband's application and ordered him to pay 90% of the Wife's costs.

2. The Husband filed a Notice of Appeal.  It was dated 1st October 2012.  In accordance with rule 30.3(3)(b) of the Family Procedure Rules 2010 and as the Husband had not sought permission to appeal from the District Judge, the Notice of Appeal contained an application for such permission.  On 19th October 2012 and upon considering the bundle which had been filed with the appeal notice, I gave permission to appeal as it was clear that a point of law, namely the construction of section 33 of the Act, had been raised upon which there was no previous authority.  It was, therefore, a point of potential importance and merited being argued on appeal.

3. Although the Wife was represented by Counsel before the District Judge she has conducted the appeal as a self representing party.  During the hearing she had the benefit of help and support from her son who, in effect, acted as her McKenzie Friend.  In accordance with the directions I gave on 19th October she also prepared and filed a Skeleton Argument which is a helpful and highly articulate.

BACKGROUND
4. The background to the application is essentially uncontroversial and I can do no better than to turn to the learned District Judge's judgment for an exposition of that background:

"The parties were formerly married and, following their divorce, sought the court's approval for a consent order resolving what were then described as their claims for ancillary relief consequent upon their divorce.  The consent order was made on 12th July 2005 by District Judge Rogers....The key provisions within that consent order are to be found at paragraph 5....and paragraph 6(1)....Paragraph 5 is what I would describe as a standard spousal periodical payments order, expressed to be at the rate of £950 per month, payable monthly, during the parties' joint lives and until the remarriage of the wife.  Paragraph 6(1) dealt with a periodical payments order to the [the Wife] for the benefit of the child of the family, K, who was then some 14 years of age and is now some 21 years of age.  That order was expressed until she attained the age of 17 years or ceased full-time secondary education, whichever be the later, or further order at the rate of £750 per month.  The order contains a further note that the intention underlying it was that the 'question of further payments in respect of tertiary education will be further negotiated by the parties'.  In other words, the order provided for payments during the course of completion of secondary education....but thereafter the parties would agree the way forward or one of them would need to apply for an order.

"On 26th June 2009, [the Wife] remarried.  She did not at that stage inform [the Husband] of her remarriage but did so some time between 21st and 25th August 2009 by a text message.  Following her remarriage, payments under the consent order should have reduced from £1,700 to £750.  They did not.  The payments increased to £1,750 each and every month from September 2009 through to June 2011, a consequent overpayment in the context of the order of some £22,000.  [The Husband's] case is that he has sought explanations from his bank as to why rather than reduce the standing order to £750 they have increased it by £50 to £1,750.  Indeed, there is correspondence from the bank to [the Wife] to suggest that they have refunded [the Husband] £22,000 and sought to reclaim that money from her, a statement which, it is accepted before me, is incorrect in that the bank have not refunded [the Husband] £22,000.  It is not clear to me what the position is at present regarding any liability on the part of the bank.  [The Husband's] application is intended to achieve a repayment of the £22,000 not from the bank but from [the Wife]."

5. It would be as well if I were to quote the relevant terms of the periodical payments order made by District Judge Rogers:

"As from the completion of the sale of the former matrimonial home [the Husband] do pay or caused to be paid to [the Wife] periodical payments for herself at the rate of £950.00 per month payable monthly during their joint lives until her remarriage or her co-habitation for a period of more than six months or until the Pension Sharing Order in favour of [the Wife] shall become payable at age 60 where upon [the Wife's] claims for periodical payments shall stand dismissed and [the Wife] shall not be entitled to amke any further application..."

6. The Husband's Application Notice, which was dated 30th November 2011, sought orders that:

"1. [The Wife] do repay overpayments of spousal periodical payments of £1,900 pursuant the section 38 of [the Act].

"2. [The Wife] do repay overpayments of spousal periodical payments of £22,000 pursunat to section 33 of [the Act]."

The sum of £1,900 represented the amount paid by the Husband as spousal maintenance from the date of the Wife's remarriage to the date she told him of her remarriage.  There can be no doubt that the Husband's application to recover that sum was an application which could be made pursuant to section 38 of the Act.  Perhaps acknowledging that fact and at a time when she was professionally represented, namely, in February 2012 the Wife tendered a cheque for that sum.

THE MAIN STATUTORY PROVISIONS
7. Although I am not directly concerned with section 38 of the Act it would be as well to give some consideration to that section which is headed:

"Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage or formation of civil partnership"
and, so far as is material, provides:

"(1) Where –

(a) a periodical payments or secured periodical payments order in favour of a party to a marriage (hereafter in this section referred to as "a payments order") has ceased to have effect by reason of the remarriage of, or formation of a civil partnership by, that party, and 

(b) the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of the remarriage or formation of the civil partnership in the mistaken belief that the order was still subsisting, the person so liable or his or her personal representatives shall not be entitled to bring proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) above against the person entitled to payments under the order or her or his personal representatives, but may instead make an application against that person or her or his personal representatives under this section. 

"(2) On an application under this section the court may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) above or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application."

8. Thus it seems clear that section 38 is directed to a comparatively narrow set of circumstances, namely, those where (a) a periodical payments order has come to an end by virtue of remarriage (or the formation of a civil partnership) and (b) the payer continues to make payments in the mistaken belief that the order still subsists, in other words, in ignorance of the remarriage or formation of a civil partnership.  This was the mechanism used by the Husband to recover the £1,900: see paragraph [6] above.  Of course the Husband could not use section 38 of the Act in respect of payments made after August 2009 as by that date he was aware the Wife had remarried: hence his resort to section 33.

9. Accordingly I turn to consider section 33 which is headed:

"Orders for repayment in certain cases of sums paid under certain orders"

and, so far as is material provides:

"(1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of— 

(a) a change in the circumstances of the person entitled to, or liable to make, payments under the order since the order was made, or 

(b) the changed circumstances resulting from the death of the person so liable, 

the amount received by the person entitled to payments under the order in respect of a period after those circumstances changed or after the death of the person liable to make payments under the order, as the case may be, exceeds the amount which the person so liable or his or her personal representatives should have been required to pay, the court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the court thinks just. 

"(2) This section applies to the following orders, that is to say— 

(a) any order for maintenance pending suit and any interim order for maintenance; 

(b) any periodical payments order; and 

(c) any secured periodical payments order. 

(3) An application under this section may be made by the person liable to make payments under an order to which this section applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives."

10. Whereas section 38 of the Act appears comparatively narrow in its application, section 33 by virtue of the reference to "a change in the circumstances" of either party appears designed to cater for far broader sets of circumstances and, in my judgment, the fact that section 38 is designed specifically to cater for remarriage is no reason to exclude remarriage as a change of circumstances falling within section 33.  Of course, if an applicant satisfied the two requirements of section 38 (see paragraph [8] above) there would be no need to resort to section 33.  However, in my judgment to exclude remarriage from the ambit of section 33 would be to impose a limit or constraint upon the meaning of the phrase "a change in the circumstances" which could not be justified when considering the wording of section 33 either in isolation or in its legislative context. If it had been the intention of Parliament to exclude remarriage from the operation of section 33 it could easily have done so.  For reasons which I will now consider the learned District Judge found section 33 did not apply to the present case.

THE DECISION OF THE DISTRICT JUDGE
11. By way of introduction it is to be observed that the District Judge had no direct authority to guide him.  Indeed Counsel's researches discovered only one reported case in relation to section 33 of the Act, namely, the decision of His Honour Judge Clifford Bellamy sitting in the Leicester County Court in X v Y (Repayment of Overpaid Maintenance) [2011] EWCC 2.  Regretfully, that does not help as Judge Bellamy was concerned with a different situation.  In that case the husband had been ordered by the Justices to pay arrears of spousal maintenance.  He successfully appealed on the basis that his wife was cohabiting and, therefore, his liability under the original order had ceased.  Between the hearing before the Justices and the appeal and in accordance with the order made by the Justices, the husband had discharged the arrears.  Judge Bellamy held that the husband could seek to recoup the money so paid by using section 33 of the Act.  However, in the exercise of his discretion pursuant to sub-section (1) Judge Bellamy allowed only partial recovery.

12. The learned District Judge was referred to and quoted the notes to both sections which appear in the Family Court Practice 2012.  The note in relation to section 38 reads:

"This section empowers the court to order repayment of a maintenance order when payments have been made under it after the order had in fact ceased (e.g. because the payee has remarried without informing the payer of that fact).  Section 33 would apply if the reason for seeking repayment arises from a change of circumstances such as, for instance, steady cohabitation."

13. The note in relation to section 33 of the Act is as follows:

"This section empowers the court to order the party who has received maintenance to repay monies that have been received where there has been a change of circumstances of the payee or a change of circumstances which results from the payer's death. The power to order repayment relates to the period before the order is varied and is distinct from the court's powers to remit arrears and to vary the order itself.  Section 38 covers a situation where payments have been made at a time when the order no longer existed because it had been determined by, for instance, the remarriage of the payee."

14. Having quoted the note in relation to section 33, the District Judge continued:

"9. The section in a case such as this can helpfully be read in the following way, where it appears to the court that, by reason of a change in circumstances of the person entitled to payments under the order since the order was made, the amount received by the person entitled under the order in respect of a period after those circumstances changed exceeds the amount which the person so liable should have been required to pay, the court may order the respondent to pay to the applicant such sum not exceeding the amount of the excess as the court thinks just.

"10. The reference to 'a change in the circumstances of the person entitled' is submitted by Ms Watts to refer to the remarriage of the wife but, potentially, also to the payments which have increased.  Change of circumstances of the person entitled cannot, in my judgment, refer to the payments made or the increased payments, which is the very subject of the application; it must refer to a change of circumstances of the person which renders the amount paid more than the amount which the person liable should have paid.

"11. Section 33 refers to the amount received by the person entitled to payments under the order.  In my judgment, s.33 refers to a subsisting order.  Otherwise, there is no sensible way of interpreting the difference between what a person is "liable to pay" and what that person should have been required to pay.  Section 38 extends the protection of the paying party if they do so at a time when there is no subsisting order in the mistaken belief that there is a subsisting order, given ignorance, for example, as to the fact of the other party's remarriage.  Neither section deals with the situation where a person formerly liable to pay under an order continues to pay in full knowledge that they are no longer under a liability to pay.  Accordingly, in my judgment, all payments made from September 2009 to June 2011 were not payments made under an order and, therefore, there is no jurisdiction under s.33 to seek repayment."

15. In my judgment the reasons for the District Judge's decision are encapsulated in the sections from his judgment I have italicised.  In essence the District Judge found that as the order for spousal periodical payments made by District Judge Rogers on 12th July 2005 had terminated upon the Wife's remarriage and, therefore, no entitlement to receive payments and no liabiltiy to make payments continued thereafter, section 33 simply did not apply.

THE APPEAL
16. I will now consider how the appeal has been argued.  On behalf of the Husband Miss Watts advances the appeal on three fronts. 

17. Firstly, Miss Watts submits that the District Judge was wrong in his interpretation of section 33 of the Act.  Her argument in relation to this point is, in my judgment, encapsulated in the following extract from her Skeleton Argument:

"Parliament clearly intended s.33 to have a much wider scope than s.38; the wording is vague, very general and without statutory definition.  There is nothing in s.33 to suggest that an order has to be subsisting at the time the payments are made, and nothing to suggest that the payee should have no knowledge that the payments are no longer due.  To the contrary in fact is the indication in the guidance to s.38 that one set of circumstances in which repayments can be made is where there has been steady cohabitation.  For example, the order in the instant case provides for spousal maintenance to cease where there has been cohabitation by the Wife for a continuous period of six months.  In those circumstances the order for spousal maintenance would come to [an end] and there would no longer be any liability or requirement to pay.  If the payments continued, for whatever reason, repayments could be claimed under s.33.  It cannot be right that repayments can only be ordered where there was either a mistaken view that the order was subsisting following remarriage or the formation of a civil partnership (under s.38) or where the order was subsisting and there had been a change in circumstances.  Such an interpretation would limit the scope of s.33 to circumstances in which an appeal or variation application had been successful and the payer sought to recoup the overpaid movies.  If this had been the intention of Parliament it would have been set out clearly in the Act.

"Section 33 specifically deals with the circumstances in which the payer has died, the payments have continued and the payer's personal representatives seek an order for repayment of the movies.  Clearly in such a case the order cannot be said to be subsisting.

"The District Judge noted that the Appellant had not brought a claim against the bank or against the Respondent as a claim in restitution.  It cannot be right that in circumstances in which an order for spousal maintenance is made under the Matrimonial Causes Act 1973 that there is no remedy within that same Act for repayments to be ordered where there has quite clearly been a mistake, which has led to the overpayments.  The Act provides for a wealth of enforcement provisions in circumstances where the payer has failed to make the payments, and it cannot be right that there can be no reciprocal provision for the payee to make repayments of movies that should not have been paid when the order had come to an end and simply by virtue of a mistake the payments continued."

18. Secondly, she submits - an agrument which the District Judge described as "ingenius" -  that even if the District Judge was right in his understanding of section 33, nevertheless there was "an existing order", namely, the order for K's maintenance.  The argument is put in the following way:

"The Appellant continued to make payments to the Respondent for the benefit of K beyond her attaining the age of 17 or ceasing secondary education as set out in the order.  K commenced a course at Crewe & Alsager College and the Appellant extended the payments for her benefit until she had completed that course.  The Judge did not accept that this amounted to further negotiation of the terms of order, in accordance with the express intention of the order itself.  The parties had clearly extended the order for payments for the benefit of K by agreement until she completed her course at Crewe & Alsager College.  In the event that the District Judge was not wrong in considering that an order needed to be subsisting for the court to have jurisdiction under s.33, he should have found that there was jurisdiction to consider the payments made in accordance with the order for child periodical payments.  The District Judge did not accept the argument that as the Appellant had made the payments of spousal maintenance and child maintenance together it was not possible to know whether or not the overpayments were for spousal maintenance or child maintenance and so it could be interpreted as either.  The Judge noted that the Appellant had not sought repayment of monies paid for the benefit of the children.  There is however, a distinct difference between seeking to recoup the sums paid to K of £750 per month, and in seeking to recoup the additional sum of £1,000 per month which had never formed part of any agreement and was paid in error."

19. Finally, Miss Watts submits that even if the District Judge was right he should not have ordered the Husband to pay 90% of the Wife's costs as this involved "double counting" and thus fell outside the proper exercise of the Distrcit Judge's discretion in relation to costs.  The point is amplified in Miss Watts' Skeleton Argument in the following way:

"....the Appellant....had already, in effect, paid the Respondent's costs and to make an order for costs against him would be double counting.  The evidence of the Respondent was that she had put the overpaid monies of £1,000 per month into a Premium Bonds account and had subsequently used it for various purposes such as buying the parties' daughter a car and insuring it, supplementing her monthly income, and paying her legal fees....

"It must be relevant that the Respondent had already paid her legal fees and that she had used the money paid to her in error by the Appellant to do so. The Respondent was clearly never entitled to this money as the order had ceased upon her remarriage; there does not need to be a finding of the court in this regard. The effect of the order is that the Appellant has paid the Respondent's costs twice and this is clearly double counting...."

20. I now turn to consider the Wife's response to the appeal.  Essentially she supports the decision and reasons of the District Judge.  In her Skeleton Argument and in response to Miss Watts' first line of attack the Wife wrote:

"The Appellant states that Section 33 should be more loosely interpreted to increase its relevance to his application.  Whilst extensive, no reasonable argument has been provided to justify this stance....

"Section 33 applies to 'orders for repayment in certain cases of sums paid under certain orders'.  The mistaken payment was not paid under an order.  Cessation of the order by reason of remarriage was understood by both parties.  The Appellant's attempt to cancel the standing order on notification of remarriage is further evidence of this.

"The Appellant submits that Section 33 does not suggest that an order has to be subsisting at the time the payments are made.  'Sums paid under certain orders' appears to be in direct conflict with this view.

"Section 33 applies to 'a change in the circumstances of the person entitled to....payments under the order since the order was made'.  The mistaken payments did not arise as a result of a change in circumstances of the Respondent (namely remarriage), but the Appellant's inability to exercise reasonable diligence in managing his personal finances
."

21. In response to the Husband's second line of attack the Wife responded:

"The mistaken payment is in no way related to child periodical payments, as the Appellant's [Counsel]....attempted to argue previously....there has never been the suggestion that the Appellant seeks repayment of overpaid child maintenance.  It is also clear that there has never been any extension to the original order."

22. Finally in reply to the appeal in respect of the costs order the Wife in her Skeleton Argument wrote:

"The Appellant further submits that the order granted by District Judge Pates failed to take into account the 'double counting' effect of making an order for costs against the Appellant.  This is not the case. District Judge Pates fully considered this effect, stating that there has been no finding that the money is improperly in her possession.  There have been costs incurred in defending the application and the Respondent had a liability to her solicitors; whether paid from that 'pot' is irrelevant."

ANALYSIS
23. I start my analysis by briefly considering section 33 in its legislative context.  It is to be found in Part II of the Act which is entitled "Financial Relief for Parties to Marriage and Children of Family".  Section 23 of the Act provides:

"(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say— 

(a) an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order"

The term which may be specified is defined and limited by section 28 of the Act which provides:

"(1) Subject in the case of an order made on or after the grant of a decree of divorce or nullity of marriage to the provisions of sections 25A(2) above and 31(7) below, the term to be specified in a periodical payments or secured periodical payments order in favour of a party to a marriage shall be such term as the court thinks fit, except that the term shall not begin before or extend beyond the following limits, that is to say— 

(a) in the case of a periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death of either of the parties to the marriage or, where the order is made on or after the grant of a decree of divorce or nullity of marriage, the remarriage of or formation of a civil partnership by, the party in whose favour the order is made…."

24. Thus a periodical payments order made following a divorce cannot extend beyond (a) the death of the payer, (b) the death of the payee, or (c) the remarriage of the payee: it must come to an end on the happening of one or other of those events.  Further, if by omission, an order neglected to specify any period then it seems to me clear that section 28(1) would operate to limit the term.  In other words an order for periodical payments following a degree of divorce or nullity cannot survive the limits prescribed by section 28(1) of the Act.

25. The disputed interpretation of section 33 revolves around one point.  Is it necessary for there to be a subsisting liability under the original order at the date of the application and/or the hearing as District Judge Pates decided was the case?  He decided that the absence of a subsisting order would mean that there was "no sensible way of interpreting the difference between what a person is 'liable to pay' and what that person should have been required to pay".  However the phrase "liable to pay", which appears within quotation marks in the District Judge's judgment, does not appear in section 33.  What appears in section 33 are the phrases (a) "the person entitled to, or liable to make, payments under the order"; (b) "the person so liable"; and (b) "person liable to make payments under the order".  In my judgment Miss Watts was correct when she said that all those phrases do is define the relevant parties: as she put it during argument section 33(1) of the Act, "simply sets out who was liable make and who was entitled to receive payments".  Thus, Miss Watts submits, the section does not purport to say anything about the liability, subsisting or otherwise, to make payments at the date of the application or the hearing.

26. A potential way of testing the argument that the phrases I have quoted do no more than define the parties is to substitute "payer" for "the person liable to make payments under the order", and "payee" for "the person entitled to payments under the order" and to consider what, if any, effect that would have on the meaning of the section.  If such an excerise is carried out section 33(1) would read: 

"(1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of— 

(a) a change in the circumstances of the [payee], or [payer] since the order was made, or 

(b) the changed circumstances resulting from the death of the [payer], 

the amount received by the [payee] in respect of a period after those circumstances changed or after the death of the [payer], as the case may be, exceeds the amount which the [payer] or his or her personal representatives should have been required to pay, the court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the court thinks just."

In my judgment sense and meaning are retained (if not elucidated) and remain the constant.

27. In my judgment the phrases "the person liable to make payments" under the order, "the person so liable" and "the person so liable...should have been required to pay" do not require a subsisting order for them to be given meaning and properly understood within the context of section 33(1) of the Act.

28. In my judgment the argument considered above finds compelling reinforcement from the following analysis.  The operation of section 33(1) is predicated upon one of the conditions or situations specified in sub-paragraphs (a) and (b) being established.  Although set out in two sub-paragraphs there are, in fact, three distinct situations (I shall used "payer" and "payee" as convenient shorthand) viz:

(a) a change in the circumstances of the payee; or

(b) a change in the circumstances of the payer; or

(c) the changed circumstances resulting from the death of the payer.

As appears from paragraphs [23] & [24] above, section 28(1) of the Act operates so that the original order, from which the payer's liability derives, cannot survive his death.  Thus section 33(1) itself expressly contemplates and provides for a situation where there is no subsisting order, namely, where the payer has died.  If, therefore, a subsisting order were necessary relief could never be obtained in such circumstances and the section would, in part, be self-defeating.

29. It also appears that the District Judge was, perhaps understandably, much exercised by the fact that the Husband knew of the Wife's remarriage but, nonetheless, payments continued to be made.  Thus he observed:

"Neither section deals with the situation where a person formerly liable to pay under an order continues to pay in full knowledge that they are no longer under a liability to pay."

In my judgment knowledge or lack of knowledge of the relevant change in circumstances has no bearing upon the applicability or otherwise of section 33: there is no qualification in section 33(1) as there is in section 38(1).  In my judgment, knowledge or lack of knowledge of the relevant change in circumstances is not relevant to the issue of jurisdiction.  On the other hand it might be a highly relevant factor when a court is considering how to exercise its discretion under section 33(1).

30. Accordingly, the Husband's appeal must succeed and as no consideration has ever been given to its merits, the Husband's application pursuant to section 33 of the Act will have to remitted to a District Judge at Crewe.  As District Judge Pates did not enter upon a consideration of the merits of the application I see no reason why he should be excluded from the pool of District Judges before whom this matter may be listed.  It is also unnecessary for me to consider the other two lines of attack pursued by Miss Watts.  However, for the sake of completeness I do so but very much in summary form.

31. The competing arguments in respect of the second line of attack against the District Judge's decision can be found and paragraphs [18] and [21] above.  As paragraph 1 of his Application Notice made clear that the Husband sought repayment of "spousal maintence": see paragraph [6] above.  In my judgment the argument is an artifical construct which bears no relationship to the circumstances of this case and I entirely agree with the District Judge when he said:

"As an argument, it is ingenious, but it is, on the facts of this case,   unsustainable"

32. The third line of attack was in relation to costs.  Obviously the costs order made by the District Judge cannot stand in the light of the Husband's success on this appeal.  However, I am entirley unpursuaded that there was any "double counting".  In my judgment the way the District Judge approached the issue of costs is unimpeachable.

CONCLUSION
33. The Husband's appeal against the decision of District Judge Pates of 13th September 2012 is allowed, the order made by the learned District Judge is set aside, and the Husband's application is remitted for hearing before a District Judge sitting at the Crewe County Court.  If there is such a further hearing the inevitable consequence is that the costs will escalate.  That can only be avoided if the parties, as I would strongly urge them to do, are prepared to compromise and reach an agreement.  It is in their respective interests to do so.

34. Finally and although disagreeing with his conclusion I wish to pay tribute to District Judge Pates: unlike me he did not have the advantage of detailed written submissions from the parties, nor did he have the luxury of time for reflection.  Rather he proceeded to deliver an exempore judgment which was a model of clarity.

Chester Civil Justice Centre
15th February 2013