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Farley v SSWP and CSA [2005] EWCA Civ 869

Procedural hurdle cleared to allow House of Lords the opportunity to consider the correct interpretation of CSA 1991, s 33.

Farley v SSWP and CSA [2005] EWCA Civ 869

Court of Appeal: Lord Woolf of Barnes and Lord Phillips of Worth Matravers (22 June 2005)

Procedural hurdle cleared to allow House of Lords the opportunity to consider the correct interpretation of CSA 1991, s 33.

In December 2003, a magistrates' court made a liability order in respect of child support maintenance, pursuant to section 33 of the Child Support Act 1991 (CSA 1991), against the father. The father's appeal against that order, by way of case stated to the High Court, was dismissed in July 2004; however, leave to appeal was granted in September 2004 and, in January 2005, the Court of Appeal allowed the appeal, and ordered that the liability order should be set aside and the Secretary of State's application for a liability order be remitted for further adjudication.

In February 2005, the respondents lodged a petition to appeal to the House of Lords on the question of substance – and one of potentially wide application – considered by the Court of Appeal, namely the correct interpretation of CSA 1991, s 33. The issue was whether, in carrying out its function, the magistrates had power to enquire into the validity of the maintenance assessments themselves: the Secretary of State submitted that they did not; the judge upheld the Secretary of State's submission at first instance, but the Court of Appeal concluded that the magistrates had both the power and the obligation to do so.

In March 2005, it came to the respondents' attention that, by virtue of sections 18 and 28A(4) of the Supreme Court Act 1981, the judge's decision at first instance was final and no appeal lay to the Court of Appeal from that decision; and this apparent absence of jurisdiction for the Court of Appeal's ruling in January 2005 was the issue now falling to be decided by the court.

The court considered the legislation and relevant case-law; it also heard submissions on behalf of the father that, while the court may not have had jurisdiction on an appeal by way of case stated, it would have had jurisdiction if there had been an appropriate application for judicial review and the judge had given his decision not on an appeal by way of case stated but on an application for judicial review; since there had hitherto been no application for judicial review, it was still open to the father to make such an application.

Held, granting the application, that a degree of procedural ingenuity could be used to ensure that the appeal to the House of Lords could proceed, even though a strict application of the legislation prohibited that route. The court made it clear that the proposed course of action constituted an extraordinary use of the jurisdiction of the court, but was nevertheless sanctioned by rule 52.17 of the Civil Procedure Rules 1998.

Moreover, in this case, if the decision of January 2005 were simply quashed on the ground that it was made without jurisdiction, it would give rise to considerable confusion. The House of Lords had given a preliminary indication that it would wish to consider the merits of the January 2005 judgment and it seemed to the court that it should, if possible, take the appropriate steps to enable the House of Lords to do so.

Read the full text of the judgment here