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R (On the application of Pigott) v Secretary of State for Work & Pensions [2006] EWHC 1484 (Admin)

This was an application for permission to apply for judicial review, with hearing to follow if granted, in a case where the applicant had been made the subject of distress for levy of child support arrears. Application refused.

The claimant submitted that he had been wrongly assessed to pay child maintenance and that, following the decision of Farley v Secretary of State [2005] EWCA Civ 778, the Magistrates Court could examine the underlying basis of any liability order. Sullivan J pointed out that the Magistrates were not respondents to these proceedings and given that judicial review is concerned with resolving disputes about matters taken by other bodies, the basic pre-condition for a challenge had not been met. The judgment concludes with a discussion concerning payment of costs in the proceedings.



Neutral Citation Number: [2006] EWHC 1484 (Admin)




Royal Courts of Justice


London WC2

Monday, 23rd January 2006

B E F O R E:


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Computer-Aided Transcript of the Stenograph Notes of

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MR DAVID BURROWS (instructed by Messrs David Burrows Solicitors) appeared on behalf of the CLAIMANT

MS KATE OLLEY (instructed by the Department of Work and Pensions) appeared on behalf of the DEFENDANT

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(As Approved by the Court)

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Crown copyright©

1. MR JUSTICE SULLIVAN: This is a rolled-up hearing of an application for permission to apply for Judicial Review and, if permission is granted, the substantive hearing is to proceed thereafter. The claim form, which is dated 20th October 2005 and which was served on 1st November 2005, says in section 3, "Details of the decision to be judicially reviewed":

"Decision of the Secretary of State wrongly to assess the claimant to child support maintenance; and (failing that) the decision of the Secretary of State wrongly to calculate the arrears due to the claimant; and the decision of the Secretary of State (in either case) wrongly to apply for a liability order/Child Support Act 1991 s33."

2. The respondent to the proceedings is the Secretary of State for the Department of Work and Pensions. No interested party has been identified. It would seem that the Judicial Review proceedings were prompted by the arrival of bailiffs at the claimant's home with a warrant to levy distress in October 2005. However, the decision to instruct bailiffs is a matter of machinery which flows from a liability order that the respondent had obtained from the Magistrates as long ago as 9th August 2004. Mr Burrows submits, on behalf of the claimant, that at that stage the law was understood to be that the Magistrates were not allowed to investigate the underlying basis of the liability order so that at that stage there was no basis on which to challenge the Magistrates' decision. However, the decision in Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778 which established that position was taken to the Court of Appeal and the Court of Appeal on 25th January 2005 decided that the Magistrates did have jurisdiction to examine the underlying basis of a liability order. That decision in its turn has been the subject of a successful petition to the House of Lords by the defendant.

3. However, as I have mentioned, the Magistrates are not made respondents to these proceedings. There is in fact no challenge to the Magistrates' decision to make a liability order. Nor has there been, following the Court of Appeal's decision in Farley, any application to the Magistrates inviting them, for example, to stay the case out of time in the light of the Court of Appeal's statement of the law. Rather, it is clear that the underlying challenge that the claimant wishes a court to adjudicate upon is the fundamental decision as to whether or not he was a non-resident parent and therefore whether or not he should have been assessed as liable at all. The difficulty is that the assessment was made as long ago as 31st March 1994. In due course the claimant's earnings were attached. In 1999, when he became aware that the amount of the deductions had increased, he wrote to the defendant, in effect complaining about this, saying that he should not be liable and saying that somebody ought to look at the matter.

4. That request was inexcusably overlooked for a number of years; I say inexcusably because the defendant has acknowledged that there was not any excuse for failing to deal with the request and has tendered an apology for that. In due course, however, the request that had been made in 1999 to reconsider the matter was looked at. There was a reconsideration and, in the light of that reconsideration, on 15th November 2004, there was refusal to revise the assessment. That letter advised that an appeal was possible and an appeal was made in January 2005. A letter dated 12th July 2005 from the defendant referred to the lodging of the appeal. It said this:

"As stated, there is no appeal against a refusal to make a revision. Instead, the appeal right relates to the original decision to which the application for revision applies. The contents of your notice of appeal did not specifically relate to the appropriate decision, which was made in February 1999, to which the contents Mr Pigott's February 1999 letter deals with. Instead, the notice of appeal relates to the 1994 decision and questions whether there was a right to make an assessment at all. As you are aware, Mr Piggot's appeal on the grounds, if it was made, was found to be out of time."

5. Now, whichever of those decisions is challenged, and the claim form is really quite unclear as to which decision it might be, even if it is taken as the very last decision of 12th July 2005, then a challenge on 20th October 2005 is well out of time. But, as I say, the true challenge is not really in relation to the 12th July 2005 letter, it is actually to the assessment going way back to March 1994 and the underlying basis of it. Now, I appreciate that the claimant would not have known the detailed basis on which that was done in 1994 but he knew that his earnings had been attached and he knew that the amount taken from him had been increased and he knew in 1999 that he was complaining about it. He knew he got no answer and therefore it seems to me that a challenge in October 2005 is so hopelessly out of time in respect of that decision-making process that this claim should not be allowed to proceed. What has happened in reality is that, for whatever reason, the claimant has left matters until the very moment that the bailiffs have arrived at the door but I am sorry to say that it is now simply too late for him to challenge the decisions which I understand he wishes to challenge.

6. Claimants must understand that judicial review is not some sort of appeal process on the merits. This court normally would not be concerned with resolving factual disputes such as who did or did not have care of a child; who was or who was not paying school fees. This court is concerned to review the lawfulness of decisions about factual matters that have been taken by other bodies. Therefore, a claimant coming to this court has to be able to identify a decision which he says is unlawful and to explain the reasons why that decision is unlawful and must also persuade the court that the decision challenged is being challenged promptly. I am afraid that those very basic preconditions are simply not met in this case. I quite understand that the claimant has a strong sense of grievance against the defendant but I am not persuaded that any judicially reviewable error of law has been challenged promptly in this case. So, for these reasons, this application for permission to apply for Judicial Review is refused.

7. Thank you.

8. MS OLLEY: My Lord, I am grateful. I have an application for the Secretary of State's costs of filing the acknowledgment of service, which was indicated in the acknowledgment. The schedule of costs was attached at that time. It now appears at pages 55 to 56 of the bundle.


10. MS OLLEY: In the sum of £1,220. It carefully excludes anything relating to attendance fees and counsel's fees.

11. MR JUSTICE SULLIVAN: Mr Burrows, what have you to say about that? The normal practice would be that costs of filing the acknowledgment of service would be but not of today.

12. MR BURROWS: I do understand that, my Lord. I do understand that and in principle I cannot resist the claim that is put forward. My Lord, I only ask you to take two things into account. If you look at page 55, I think seven hours to prepare -- seven hours at £100 an hour, so I suppose it is not an enormous amount of money, but it seems quite a lot. The £200 which you were told had been offered has not been paid, so that could in principle come off, and the fact that there was that enormous delay between the letter and -- which to some degree has prompted what you have heard. But, my Lord, in principle I cannot oppose there being some order for costs.

13. MS OLLEY: My Lord, the £200 actually has been paid. Very recently, I am afraid.

14. MR JUSTICE SULLIVAN: How recent is recent? This morning?

15. MS OLLEY: At the end of last week, probably, but it has been paid.

16. MR JUSTICE SULLIVAN: Or sent off, anyway. Anyway, it is not for me to decide. That is a separate issue, I am simply concerned with whether £1200-odd is a reasonable figure for preparing this acknowledgment of service. I am satisfied it is, given the difficulty of trying to disentangle the somewhat lengthy and convoluted factual history. So the application is dismissed, the claimant is to pay the Secretary of State's costs, those simply concerning the acknowledgment of service and not of today, I emphasise, and those costs summarily assessed in the sum of £1,220.

17. MS OLLEY: My Lord, I do have an application for the costs of today.


19. MS OLLEY: It seems that it will not meet with judicial favour.

20. MR JUSTICE SULLIVAN: No. I mean, if you want to try to climb the mountain, by all means do, but I do not think you are going to be very successful and it is already 3.15. I should not push it. If I can just say, having heard -- I mean, notionally, the most eloquent submissions you could make on behalf of defendant, I do not, for the moment, think that I can seen any exceptional reasons for why the normal rule should not apply, you having set out your position in the acknowledgment of service.

21. MS OLLEY: In that case, my Lord, there is the matter of the discharge of the interim order.

22. MR JUSTICE SULLIVAN: Certainly, the discharge of the interim relief. There is no difficulty about that, I think. Lindsay J did not deal with it, did he? I extended it, did I not?

23. MS OLLEY: Your Lordship certainly did.

24. MR JUSTICE SULLIVAN: Over Christmas, yes. The interim relief. So there is no order for the costs of today. The interim relief that I granted, however, is discharged.

25. MR BURROWS: My Lord, would you discharge it in seven days' time but continue it if at the end of that period of time an appeal notice is filed?

26. MR JUSTICE SULLIVAN: You have heard the application. It is effectively a stay on the discharge for seven days, which I am happy to do to give you time but I think -- that would give you time to put in an application notice which would -- and you do not have to apply to the Court of Appeal effectively for a further stay.

27. MR BURROWS: Well, my Lord, would you extend the stay until the Court of Appeal has considered any application for a stay? So in the first instance for seven days and then until the Court of Appeal considers the stay, because it may be some days before the Court of Appeal can consider a stay.

28. MR JUSTICE SULLIVAN: I think you could probably ask the Court of Appeal in fact. What do you want to say about that?

29. MS OLLEY: I would just like to make clear that there is a hearing before the Worthing County Court on 13th February. It is necessary to clarify the position. I am not entirely sure whether the order of 20th December covers the application for a charging order that is the subject matter of the proceedings before the Worthing County Court.

30. MR JUSTICE SULLIVAN: There is no reason why the hearing before the Worthing County Court should not proceed. So far as the stay is concerned, I am simply really concerned that the bailiffs should not go in if someone is preparing an application for permission to appeal against my decision to the Court of Appeal.

31. MS OLLEY: I do not think there is any question that that would be put in motion but we are simply concerned that the hearing at the Worthing County Court can go ahead and it is indisputable that it can go ahead.

32. MR JUSTICE SULLIVAN: Right. Well, I confirm that the hearing in the Worthing County Court can go ahead. So far as -- well, is it 14 days or seven days?

33. MR BURROWS: It is seven, my Lord.

34. MR JUSTICE SULLIVAN: Seven days to apply. What I am going to do is to stay -- is to continue -- it is paragraph 1 of the order, which is the bailiffs part of it.

35. MR BURROWS: It is your order, my Lord, as opposed to Lindsay J's.

36. MR JUSTICE SULLIVAN: That is right. So far as the stay is concerned, no further enforcement action by way of the bailiffs is to take place for seven days and if, within that period, a notice of appeal to the Court of Appeal is served, filed and served, then until such time as the Court of Appeal has had an opportunity to consider the matter. So I am just holding off the bailiffs, nothing more. Right? Thank you.

37. MR BURROWS: My Lord, I am grateful.