Department of Social Security v Butler
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS,LORD JUSTICE MORRITT,LORD JUSTICE SIMON BROWN |
| Judgment Date | 21 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0721-3 |
| Docket Number | FCE 95/6034/D |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1995 |
[1995] EWCA Civ J0721-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
Mr Justice Hooper
Before Lord Justice Simon Brown Lord Justice Evans Lord Justice Morritt
FCE 95/6034/D
MR P CRAMPIN QC (Instructed by C G Blake, Solicitor for DSS) appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
The High Court has power under section 37 of the Supreme Court Act 1981 to grant an injunction "in all cases in which it appears to the Court to be just and convenient to do so" (section 37(1)).
The Department of Social Security, present appellant, claims arrears which it alleges are due under a maintenance assessment made by the Child Support Agency against the respondent. The arrears totalled £3,996.86 at 22 May. The respondent has appealed against the assessment but he accepts that he may nevertheless be liable for arrears of £2,000.
Sections 31 and following of the Child Support Act 1991 contain detailed provisions for the collection of maintenance and the enforcement of liability orders which may be made by the Magistrates' Courts. There is, however, no provision for the obtaining of interlocutory relief before a liability order is made.
The issue in this application is whether the High Court has jurisdiction under the general provisions of section 37 of the 1981 Act to grant what is in substance a Mareva injunction, restraining the person against whom the assessment has been made from disposing of or dealing with his assets up to a stated value until such time as a liability order may be obtained from the magistrates.
The Department applied ex parte for such an order on 22 May. The application was refused by Hooper, J. for want of jurisdiction. The Department now appeals. The respondent did not appear and was not represented before us.
The issue
Mr Crampin Q.C. for the Department recognises that the application raises issues of far-reaching importance. I would express my gratitude for his thorough research and careful submissions. He relies upon the long-established power of the Court of Chancery to grant an injunction when fairness and the justice of the case demand that it should, and its willingness to exercise the power in aid of proceedings in other Courts, not limited, Mr Crampin submits, to what are now the other divisions of the High Court. He submits that the general principles on which traditionally the jurisdiction was based and the terms in which the statutory jurisdiction is expressed (currently in section 37, before that in section 45(1) of the Supreme Court of Jurisdiction (Consolidation) Act 1925) are wide enough to permit the Court to grant a Mareva injunction in aid of substantive proceedings in the magistrates courts.
There is however a second aspect of this submission which in my judgment is no less important than the general principles upon which Mr Crampin relies. That is the fact that the proceedings before the magistrates are entirely statute-based. Both the Department's power to bring the proceedings and the respondent's obligation which it seeks to enforce are derived from the Child Support Act 1991 ("the CSA) and that Act alone. These provisions briefly are as follows.
The C.S.A.
Section 1 which is headed "The duty to maintain" imposes on "each parent of a qualifying child" a statutory responsibility for maintaining him (sub section (1)) More explicitly sub-section (3) provides:-
"(3)Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments".
The procedures which may result in a maintenance assessment are found in sections 11 and 12, followed by provisions for reviews and appeals (sections 16–27). Then come section 29 and following which are concerned with "Collection and maintenance". The Secretary of State is given wide powers to make regulations to govern the payments which must be made in accordance with maintenance assessments (section 29(2)) either to the person caring for the child or "to or through the Secretary of State" or some other person (section 29(3)(a)). The Secretary of State can make a "deduction from earnings order" (section 31(2)) in accordance with regulations made by him (section 32(1), and he may also apply to a Magistrates Court for a liability order (section 31(2)). If he does the latter, the Magistrates Court "shall not question the maintenance assessment under which the payments of child support maintenance fell to be made" (section 33(4)) and it shall make the order if satisfied that the payments in question have become payable by the person against whom the proceedings are brought and have not been paid (section 33(3)). Again, the Secretary of State is given power to make regulations about liability orders (section 34).
When a liability order has been made, the Secretary of State may levy the appropriate amount by distress and sale of the liable person's goods (section 35(1) and he may enforce recovery by means of garnishee proceedings or a charging order, if a County Court so orders (section 36(1). The final sanction is committal to prison which may be ordered by a Magistrates' Court (section 40).
The following observations may be made on these statutory provisions:-
(1)The Act together with regulations made under it provide a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State.
(2)The only method provided for enforced collection before a liability order is made is a deduction from earnings order made by the Secretary of State himself under section 31.
(3)Although section 1(3) provides for a duty which arises when the maintenance assessment is made, this duty is not expressed as a civil debt. Mr Crampin accepts that the duty could not be directly enforced by action in any civil court, or by any means other than as provided in the Act.
(4)There is no provision for precautionary or Mareva-style relief.
The Court of Chancery
In Bacon v. Jones (1839) 4 My. & Cr. 433 (41 E.R.167) the Lord Chancellor Lord Cottenham made observations on the powers of the Court of Chancery to grant an interlocutory injunction "either during the progress of the suit, or at the hearing; and in both cases, I apprehend, great latitude and discretion are allowed to the Court in dealing with an application" (p.436). Later, in Brenan v. Preston (1852) 2 De G.M. & G.813 (42 E.R. 1090) the plaintiffs who were in possession of a steam-vessel which they had purchased sought an injunction against the ship's husbands who they alleged had taken some of the ship's machinery ashore and were refusing to release it, thereby detaining the ship. There was some doubt whether the Court of Chancery should interfere in a matter which properly should be regarded as within the jurisdiction of the Court of Admiralty. The Lords Justices held that there was jurisdiction to order a injunction. As the head-note records, it appeared "that a decree of possession could not be obtained in the Court of Admiralty, by reason of the Plaintiffs being in possession of the hull, or at all events could not be obtained in time to enable the vessel to fulfil her engagement", and orders were made accordingly. Knight Bruce L.J. recounted how the application was first adjourned so that "resort should, in the first instance, be had to the Court of Admiralty, in order to avoid any chance of assuming a jurisdiction properly belonging alone to another court" (pp.838/9), and he observed:-
"It is an ancient head of the jurisdiction of this Court to interpose in aid of the jurisdiction of other Courts",
and after referring to the execution of judgments at law and to suits in the Eccliastical Courts,
"In other instances, too, of an analogous kind, this Court has usefully, and I believe, from all time …. interposed" (p.839).
He also stressed, however, that the Court's powers were not unlimited. "If it were merely a new equity —if this were a head of jurisdiction not shown and proved by experience to belong to the Court" then the position might be different (p.839).
Here can be seen the origins of the later dispute whether an injunction can be granted otherwise than in respect of a legal or equitable right, and if so, how the equitable right should be defined. If the power and discretion were unrestricted then the grant of the injunction itself implied the existence of such a right, and the Court's jurisdiction would be limited only by its own exercise of discretion in the particular case (cf. Spry on Equitable Remedies (4th ed.) at p.442). It is so far unresolved whether the Court's discretion under section 37(1), the current statute, is limited by precedent in this way. In The Siskina [1979] A.C. 210 Lord Diplock's speech indicated that it is. In Castanho v. Brown & Root (U.K.) Ltd [1981] A.C. 557, however, Lord Scarman suggested a wider principle (page 573), and in British Airways Board v. Laker [1985] A.C. 58 Lord Diplock endorsed Lord Scarman's "qualification", as he had done in Castanho itself, although he also said that his Siskina dictum was too narrow "in one respect" (81). The question was left open in the speeches of Lord Goff in the South Carolina case [1987] A.C.24 and Lord Browne-Wilkinson in Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd. [1993] A.C. 334 at 343.
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