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R (on the application of Davies) v Child Support Agency [2008] EWCA Civ 1031

Application for permission to appeal refusal of judicial review claim concerning failure of CSA to obey a court order and disclose information to an absent parent challenging his maintenance payments. Application refused.

The claim for judicial review originated in the claimant's demands for disclosure of documents as ordered by the court (see R (Davies, on the application of) v Child Support Agency [2008] EWHC 334 (Admin)  Black J had refused the claim for judicial review on the grounds that the information sought would have no influence on the outcome and level of maintenance payable. In this application, the applicant submitted that court orders must be complied with unless varied by the court.

Ward LJ found this submission "utterly well-founded" and the Agency submitted an apology to the Court for its actions. However he rejected the application on the grounds that Black J had not erred in law and that "the court always ultimately has a discretion whether or not to exercise the power to compel compliance with the order."

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Case No: C1/2008/0701
Neutral Citation Number: [2008] EWCA Civ 1031
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN’S BENCH DIVISION
(MRS JUSTICE BLAKE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 23rd July 2008

Before:

LORD JUSTICE WARD

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Between:

DAVIES (Appellant)

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CHILD SUPPORT AGENCY (Respondent)

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(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON (ASSISTED BY HIS MCKENZIE FRIEND, MR O’CONNELL)
Miss K Olley (instructed by the Department of Work & Pensions) appeared on behalf of the Respondent.

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Judgment (As Approved by the Court)Crown Copyright)

Lord Justice Ward:
1. Mr Davies seeks permission to appeal the order of Black J, made on 5 March, when she dismissed his claim for judicial review in the first case and refused permission to appeal in this court. 

2. At the heart of this application lies the making of two orders by the tribunal, first on 7 October 2005, when by agreement it was directed that the Secretary of State produce to the appellant (that is Mr Davies) within 28 days copies of all documents retained by the first respondent in relation to this assessment and that which it revised.  On the second occasion, 27 April 2006, when the tribunal adjourned the appeal for the second time because of the Secretary of State’s failure to comply with those disclosure directions it was ordered that the second respondent, the Secretary of State, within 28 days send the appellant copies of all documents related to him retained by the first respondent.  Those orders have in fact never been complied with.  The Child Support Agency, who were considering the father’s liability to maintain his children, took a view that the orders had been made in error and they did not therefore comply with them. 

3. In her submissions to me today Miss Olley, who appears for the Secretary of State even though that attendance was not sought, nonetheless she was helpfully here and she has assured me, as she assured Black J and as the judge accepted, there was no contumely in that refusal to comply; it was not a contumacious contempt of the court but a misunderstanding of the procedure and a false reliance on the Data Protection Act to justify non-compliance.  But it was not, as might appear, a defiant act of refusal to comply with a court order.  In the event -- and this is important to emphasise -- the appeal tribunal forgave the failure to comply with the directions because it concluded, and it seems to me correctly concluded, that no information on the file could be of any possible relevance to the task of the appeal tribunal, which was to determine the level of the maintenance father should pay for his two children and the date of the commencement of the reduction from the ordered £105 to £5 a week following the loss of his employment.  And therefore nothing was done to enforce the orders.  But that seems to me to be the whole basis of Mr Davies’s complaint, with the admirable help of his McKenzie Friend, Mr O’Connell, who has helped me on many occasions. 

4. Mr Davies draws my attention to a whole range of authority, which is well-established, to the effect that a court order once made has to be complied with, be it by the most humble citizen in the land or the most mighty officer of state in the land.  Orders are not to be flouted, orders are not to be ignored; those subject to orders are not entitled in their own wisdom to say they were wrong, they were irrelevant, they should never have been made and therefore we need not comply with them.  The correct procedure is to go back to the court or the tribunal which made the order and seek its discharge or its variation.  That did not happen.  Therefore the criticism that Mr Davies makes is utterly well-founded. 

5. It has been accepted to be well-founded by the Secretary of State, who has apologised to the tribunal and apologised to the High Court, and Black J has accepted those apologies.  Miss Olley is principally here today to extend an apology to the Court of Appeal and I likewise accept it.  A shame it is that no one has had, could I say, the good manners perhaps to apologise to Mr Davies, but that will be rectified following my interventions and I express my gratitude to the solicitor in the department, who does attend, a senior official by the look of him, judging the grey hair that flecks his temples, and I am grateful for his attendance and for his help in this matter. 

6. The question is, must I give permission to review Black J’s decisions?  Has she made an error?  There is, in my judgment, no error of law in her judgment.  She readily accepts the need for orders ordinarily to be obeyed, but the court always ultimately has a discretion whether or not to exercise the power to compel compliance with the order.  The chairman of the tribunal was ultimately the one who had to exercise that discretion for it was his orders or the orders of his tribunal, which had been ignored.  He was able to dispense with compliance with the order because the information was irrelevant; because he had all that he needed to do the calculation and because he was satisfied that no injustice had been done.  It needs to have an error of law shown on his part; there was none.  He had a discretion to exercise it; he did. He was entitled to decide as he did, as was Black J, and in those circumstances, righteous though Mr Davies’s indignation is, there is in my view no arguable case to go to the Court of Appeal.  Mr Davies must please now cease to carry the banner of a war against the Child Support Agency, in which I have on occasions over the past nearly 20 years given the protagonists of those who fight the CSA a little support by observations critical of that organisation.  In this case they have made their apology, I have accepted it; the matter must now be put to rest; the application must be dismissed.

Order: Application refused