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R (On the application of Creed) v HMCS & Anor [2009] EWHC 3610 (Admin)

Application for judicial review arising from liability order in child support. Application refused.

A liability order for £41,000 was made in January 2008 and the magistrates had refused to adjourn the case despite the applicant's solicitors request on the grounds that the applicant had not been able to give full instructions. The magistrates refused to set aside the order at a later hearing in March 2008.

In ths application King J rejects the arguments that the magistrates should have adjourned the January 2008 hearing as it was clear that they had considered the matter. She also rejects any arguments that the decision should have been set aside and that, following Mathialagan, it was dubious that the magistrates had the power to do so.

Neutral Citation Number: [2009] EWHC 3610 (Admin)

Royal Courts of Justice
London WC2A 2LL
Friday, 3rd October 2008
B e f o r e:







Interested Party
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David Burrows (Solicitor Advocate) appeared on behalf of the Claimant
Katherine Olley (instructed by the Treasury Solicitor) appeared on behalf of the Defendants
The Interested Party was not represented and did not attend
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1. MR JUSTICE KING:  This is a renewed application for permission to apply for judicial review.  It was refused on the papers by Bennett J.  I have heard oral representations on behalf of the claimant by Mr Burrows and from Miss Olley on behalf of both defendants.
2. I refuse this renewed application.  I do not consider that there are any arguable grounds in respect of the decisions identified in the claim form.  There are three grounds of challenge put forward.  I shall deal with each separately.

3. The background to this matter is that on 23rd January 2008 the Barnstaple Magistrates made a liability order for some £41,630.03 against the claimant pursuant to section 33 of the Child Support Act 1991 ("the Act").  The first ground of challenge is against the decision of the first defendant, the magistrates, identified in these terms in paragraph 7(1) of the grounds and reasons in support of the claim:

"(1) Of the first defendant and of their Barnstaple, North Devon justices ('BMC') to refuse on 12th March 2008 to set aside the liability order made in the absence of the applicant on 23rd January 2008."  

4. At the root of this challenge is the refusal of the magistrates to adjourn the case on 23rd January 2008.  Prior to 23rd January 2008, solicitors — the present solicitors acting for the claimant — wrote to the clerk to the justices seeking an adjournment.  It reads as follows:

"We have been consulted by the above named Mr Creed in connection with a summons returnable at your court tomorrow at 10.00 am.

For various reasons it was not possible for us to take Mr Creed's instructions until 17th January 2008 when the writer also contacted the CSA to ask for a breakdown of the arrears figure.
We have still not been able to obtain full instructions from Mr Creed since then as to how the arrears have arisen, whether there is in fact any liability and what the background to that liability is (if there is any liability). 

We have asked Mr Wild of the CSA for an adjournment tomorrow. 

He says that he does not agree.

It is impossible for us to attend tomorrow on behalf of Mr Creed. 

We therefore ask for an adjournment so we can take full instructions from Mr Creed as to the background to this matter. 

In these circumstances we do ask that the absence of ourselves and of Mr Creed be excused.

We have sent a copy of this letter to Mr Wild."

5. The magistrates in their acknowledgment of service set out that on 22nd January 2008 the North Devon Magistrates' Court replied by telephone to the solicitors' letter, stating that the court did not agree to an adjournment and that Mr Creed would have to attend the court.  Mr Creed, however, chose not to attend the court, but rather to go to work.  He did not attend himself to renew the application for an adjournment.  Nonetheless, it is clear from the acknowledgment of service that on 23rd January 2008, before considering the application for a liability order, the magistrates did consider whether or not to grant an adjournment. 

6. I should add that Mr Wild, who was the officer acting on behalf of the CSA, had himself, on 18th January 2008, written to the magistrates in these terms:

 "A liability order application in respect of Mr Creed has been listed for hearing at Barnstaple Magistrates' Court on Wednesday, 23rd January 2008 at 10.00 am.

On Monday, 14th January 2008 I received a letter sent to me by recorded delivery by the occupier of the address held for Mr Creed.  This enclosed the summons and associated paperwork.  The letter advised that Mr Creed not at [the] address and gave a forwarding PO Box address to write to.

However on 17th January 2008 I received a telephone call from Mr Creed's solicitor acknowledging receipt of the summons.  The solicitor asked for an adjournment of the case.  I explained that there has only ever been one assessment in force since 1997 and his client had not made any payments.  Therefore I could not agree to an adjournment.  I faxed a copy of the account breakdown that was sent to his client on 31st October 2007 and to the court with the application. 

I also asked for confirmation of his client's home address.  The solicitor after speaking to his client refused to state his client's address.

Given the above, I would like to state that if any adjournment request is received at the court from Mr Creed or his solicitor prior to the hearing, that I am objecting to that adjournment and request that Mr Creed and his solicitor be instructed to attend the hearing to explain [their] position and make any request for adjournment in person.  It is my view that ample time has been allowed for Mr Creed's solicitor to take instructions on the proceedings as his client was in attendance at the time of the telephone call and therefore able to state his position in time for the hearing.  In my view under the circumstances of this case any adjournment request is merely delaying the inevitable and therefore the hearing should proceed."

7. What the magistrates say in their acknowledgment of service is as follows:

"On 23rd January 2008 the court considered all the documents on the file.  Mr Creed and his legal representative did not attend.  A message stated that Mr Creed was going to work.  The Child Support Agency objected to the adjournment.  The justices refused the adjournment stating: 1.  Mr Creed decided he would work today rather than attend court; 2.  there is a lengthy history of non payment; 3.  the CSA made an interim assessment in 1997; 4.  no indication is given as to why Mr Creed could not give instructions to his solicitor."

8. In my judgement, there is no arguable ground put forward in this application to show that the decision of the magistrates to refuse an adjournment was unlawful, irrational or unfair.  It was a considered and reasoned decision which is not in itself capable of a successful challenge on judicial review grounds.
9. But, of course, the decision under challenge is not directly the decision to refuse the adjournment; it is the decision to refuse, on 12th March 2008, to set aside the liability order made in the absence of the applicant.  As far as that is concerned, in my judgement no arguable ground has been put forward to demonstrate that if, which is dubious, the Magistrates' Court had the power to set aside the liability order made on 23rd January 2008, their refusal to do so, as contained in a letter undated but conceded to be 12th March 2008, was unlawful, irrational or otherwise open to challenge on judicial review grounds.  It seems to me to have been a proper decision made considering all the factors, which is wholly unimpeachable.

10. The material letter of 12th March 2008 from the clerk to the justices to the solicitors for the claimant reads, in the final paragraph, as follows:

 "The Magistrates' Court has no statutory power to re open a decision to make a liability order.  Consideration has been given to case law which deals with the issue of re opening cases by magistrates in particular R (on the application of Mathialagan) v Southwark London Borough Council and another.  Here the point is made that 'where there has been a clear mistake by the court itself going to the basis of its jurisdiction, or the fairness of the proceedings, where the resulting decision would clearly be quashed on judicial review, it may be open to the court to correct the mistake of its own motion.'  The court has canvassed the views of the CSA who reply that no mistake has been made, the liability order was properly made and the agency opposes the re opening of the case.  The court notes that if the case were to be re opened the CSA would wish to challenge that decision in the higher courts.  The court is therefore in the position that if the decision is allowed to stand your client will apply for judicial review and if the court re opens their decision to make a liability order the CSA will apply for judicial review.  It has therefore been decided that the order made on 23rd January will not be set aside in the Magistrates' Court."

11. In my judgement, the decision not to set aside the liability order has not been shown to be impeachable on any arguable ground.  On the basis of the decision in Mathialagan, I regard it as dubious whether the magistrates had any power to set the order aside, even if they had wanted to.  However, even if they did have the power, it seems to me they were acting properly within their discretion to refuse to exercise it.

12. I make clear that there has been no arguable ground put forward to me to demonstrate that the liability order itself, made under section 33 of the Act, was unlawfully made.  I have looked carefully at all the material laid before me and I can see no basis for any argument that it was unlawful having regard to the terms of section 33 and the evidence which was laid before the magistrates.

13. I conclude, therefore, that there is no arguable basis for the first ground of challenge.  Indeed, in the course of argument, Mr Burrows, properly accepted that he was in an impossible position as regards this ground and he abandoned his application for permission as against the Magistrates' Court.  However, I have dealt with this aspect of the challenge in some detail to demonstrate that this was a concession properly made.

14. The second decision under challenge — and it is the only effective aspect of this application remaining — is that of the second defendant, the Secretary of State, to seek a liability order and to "press for it" where it was known that the applicant had only just obtained legal representation and/or, alternatively, the decision to refuse to set aside or to agree to set aside the liability order.  The alternative way of identifying the decision is not expressed in the claim form.  Mr Burrows, on behalf of the claimant, sought leave to amend the claim in order to introduce it.  I will deal with this alternative de bene esse. I do not give leave to amend because in my judgement there is no merit in the proposed amendment.

15. In my judgement, there is nothing in the material before me to demonstrate any arguable grounds of challenge against the decision of the Secretary of State to seek a liability order in this case or to press for it when it was known the applicant had only just obtained legal representation or to refuse to agree to set it aside.  Nothing has been laid before me to indicate any arguable ground that the section 33 liability order was improperly made or was unlawfully made.  I refuse permission. 

16. I should say that the third ground of claim has been abandoned. The third ground was against the second defendant, the Secretary of State, and alleged a failure correctly to calculate the underlying arrears, which include an interim maintenance assessment, which failure was said to be continuing. That was formally abandoned before me.