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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) (16 October 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3358.html Cite as: [2009] EWHC 3358 (Admin)

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IN THE HIGH COURT OF JUSTICE

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff
		16th October 2009

His Honour Judge Jarman QC:

1. By a claim form dated 21 April 2009 the claimant seeks to bring a challenge against the Child Maintenance Enforcement Commission in respect of a decision contained in a letter dated 9 February 2009 from the Child Support Agency on behalf of the Commission to his solicitor. The interested parties are the claimant's former wife and the Child Support Agency.
2. The letter in question says this:

"Concerning the ongoing deduction from earnings order, as a parent with care of the Child Support Agency [your former wife] is able to choose whether the Agency continues to act on her behalf to recover the amount of outstanding arrears of child support maintenance owed to her. Whilst in the past she may have come to an arrangement with [you] in our more recent communication the email you referred to [your former wife] requests the Agency continues with enforcement action and therefore the Agency will do this. The deduction from earnings order will therefore continue."

3. There are a number of matters which the claimant advances in support of his contention that that decision is susceptible to judicial review. He and his former wife have three children between them. At present they are residing with the claimant or at least during the summer holidays of their university course.
4. The issues between the parties are these. Firstly, whether the claimant's former wife made a request to the Commission to stop the enforcement of the arrears of child maintenance which had arisen under the Act. For present purposes, the deduction of earnings order was made on 28 August 2008. Under that order monthly deductions have been made from the claimant's salary to enforce payment of those arrears. As I have indicated, for present purposes it is not in dispute that the arrears amount to some £16,860, some £4,708 of which is owed not to the former wife but to the Secretary of State for Work and Pensions. That is because the claimant's former wife received prescribed benefits from the Secretary of State at times when the claimant was obliged to pay for his children.
5. The second issue, if there was no such request, is whether the defendant nevertheless has the power to continue enforcement; secondly, whether the defendant acted irrationally in continuing to enforce arrears; and thirdly, did the defendant act contrary to its duty under section 2 of the Child Maintenance and Other Payments Act 2008 in continuing to enforce arrears.
6. Before turning to the law, I should outline the facts. Permission to continue with this claim was given by order of Wyn Williams J on 3 July 2009. Amongst other observations he made was the observation that the legal points raised in the claim are important. It was also observed that it would assist the court in resolving the factual position if the claimant's former wife became involved in the proceedings at least to the extent of serving a witness statement explaining the circumstances giving rise to the two letters dated 12 November 2008. Very properly, after that order each of the parties at various times wrote to the former wife and she has (albeit somewhat late in the day) filed a statement dated 15 October 2009, which the other parties have seen and have been able to take account of.
7. The circumstances surrounding those letters are contained in e-mails passing between the claimant's solicitor, Mr Burrows (who, incidentally, also has acted for him in these proceedings), and the former wife. Some of those e-mails are said to be without prejudice on behalf of the former wife. As she is not here to argue whether she has waived privilege or not, although of course the claimant alleges that an agreement was reached, it does not seem to me either necessary or desirable to refer in any depth to that correspondence.
8. It suffices to say that it is not in dispute as between the claimant and his former wife that, as a result of that course of correspondence, on 13 November 2008 a sum of £3,200 was transferred to her via the claimant's solicitor's clients deposit account. On 12 November 2008 a letter was signed by the former wife, addressed to the Chief Executive of the Child Support Agency. It says this :

"In consideration of receipt of £3,200 from [the claimant] on 12 November 2008 via his solicitor Mr David Burrows and further £8,125.52 upon satisfactory response from the CSA to my request as set out below please note that £8,125.52 refers to £12,000 less £3,200 and £674.48 received by September DEO. I ask that the CSA terminate involvement in my case, remove the DEO, remit any arrears, clear any CCJ against [the claimant] and give me the unequivocal assurance that no further enforcement steps will ever be taken by the Secretary of State for Work and Pensions against [the claimant]."

9. It is now accepted that, whilst that was the form of the letter which was forwarded to Mr Burrows and by him subsequently to the Child Support Agency, the letter which went directly from the former wife to the Agency and received by them on 14 November 2008 had upon it a written addendum by the former wife in which she says this, and again this is directed to the Chief Executive:

"You will receive copy of this letter also posted from Mr David Burrows' office. Please ensure that before any action is taken by the CSA to terminate my case direct contact is made with me and my MP … to discuss how this is best to be achieved"

And then that is signed by the former wife.

10. On 18 November 2008 Mr Burrows also wrote to the Chief Executive. He said that there had been payment of the sum of £3,200 to the former wife on terms that the claimant would make a further payment to her if the CSA assessment is terminated. The letter from the former wife was enclosed and he asked that the arrears should be remitted, that any paperwork should be requested to confirm that and requested confirmation that the Agency should have no further involvement in that matter. Upon such confirmation Mr Burrows indicated that he would release the balance to the former wife.
11. By an e-mail on 18 November at 12.17pm from Mr Burrows's office, a copy of the letter which had been sent by Mr Burrows to the Agency was enclosed. On the same day, by an e-mail timed at 12.45pm, the former wife sent an e-mail to a number of addressees including the Agency but not including Mr Burrows or the claimant. They did not become aware of this until this claim for judicial review had been commenced and after the Acknowledgement of Service had been filed.
12. The e-mail says this:

"I have been informed that my correspondence to the Chief Executive has been passed to you for action. Please ensure that no action to close my case is taken. The premise for attempting to reach agreement was incorrect as given to me by Mr Burrows. I only learnt of this in the last few days and immediately sent a letter to the Chief Executive by special delivery, which I had confirmed was delivered. Today, I have received a letter that Mr Burrows has sent to the Chief Executive, which is factually incorrect. There are no proceedings relating to arrears of maintenance ongoing in court. There are proceedings for future maintenance, and the court has confirmed that it does not have jurisdiction to deal with the arrears."

13. The statement by the former wife does not, in my judgment, add a great deal to that history. What she says is that the reason she made the handwritten addendum was because there had been previous difficulty when she had attempted to alter the wording of a letter dictated by Mr Burrows. She said that she remained to this day almost certain that it was not for her to negotiate arrears of maintenance downwards. She then switches to the present tense and says that the maintenance is not money that is owed to her, it is maintenance that is owed to the Secretary of State "and I do not believe that I have the authority to make any alterations as to the amount owed". She then continues, "I therefore sought clarification on this point". It is not entirely to me whether by the different tenses in that part of the statement she is saying that she knew this at the time that she had made the handwritten alteration or addendum or since.
14. I now turn to the provisions of the 1991 Act. Before I do so, it may be helpful to refer to the opinion of Lord Bingham in the case of R v SSWP ex parte Kehoe (FC) [2005] UKHL 48. In paragraph 6 of that opinion Lord Bingham says this:

"The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale. The state has an interest, most directly in cases where public funds are disbursed, but also more generally that children should be adequately supported. It might well be thought that a single professional agency, with the resources of the state behind it and an array of powers at its command, would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way."

15. The following provisions of the 1991 Act have been referred to and have relevance to this application.

"4 Child support maintenance

(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children.

(2) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for—

(a) the collection of the child support maintenance payable in accordance with the assessment;

(b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.

…

6. Applications by those receiving benefit

(1) Where income support, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if—

(a) she is a person with care of the child; and

(b) she is required to do so by the Secretary of State,

authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent.

(2) The Secretary of State shall not require a person ("the parent") to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that—

(a) if the parent were to be required to give that authorisation; or

(b) if she were to give it,

there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result.

(3) Subsection (2) shall not apply if the parent requests the Secretary of State to disregard it.

(4) The authorisation mentioned in subsection (1) shall extend to all children of the absent parent in relation to whom the parent first mentioned in subsection (1) is a person with care.

(8) Subsection (1) has effect regardless of whether any of the benefits mentioned there is payable with respect to any qualifying child.

(11) A person with care who has authorised the Secretary of State under subsection (1) but who subsequently ceases to fall within that subsection may request the Secretary of State to cease acting under this section.

(12) It shall be the duty of the Secretary of State to comply with any request made under subsection (11) (but subject to any regulations made under subsection (13)).

(13) The Secretary of State may be regulations make such incidental or transitional provision as he thinks appropriate with respect to cases in which he is requested under subsection (11) to cease to act under this section..."

8. Role of the courts with respect to maintenance for children

(1) This subsection applies in any case where a child support officer would have jurisdiction to make a maintenance assessment with respect to a qualifying child and an absent parent of his on an application duly made by a person entitled to apply for such an assessment with respect to that child.

…

(3) In any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and absent parent concerned.

9 Agreements about maintenance

(1) In this section "maintenance agreement" means any agreement for the making, or for securing the making, of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of any child.

…

(4) Where any agreement contains a provision which purports to restrict the right of any person to apply for a maintenance assessment, that provision shall be void.

29 Collection of child support maintenance

(1) The Secretary of State may arrange for the collection of any child support maintenance payable in accordance with a maintenance assessment where—

(a) the assessment is made by virtue of section 6; or

(b) an application has been made to the Secretary of State under section 4(2) or 7(3) for him to arrange for its collection.

(2) Where a maintenance assessment is made under this Act, payments of child support maintenance under the assessment shall be made in accordance with regulations made by the Secretary of State.

(3) The regulations may, in particular, make provision—

(a) for payments of child support maintenance to be made—

(i) to the person caring for the child or children in question;

(ii) to, or through, the Secretary of State; or

(iii) to, or through, such other person as the Secretary of State may, from time to time, specify;

(b) as to the method by which payments of child support maintenance are to be made;

(c) as to the intervals at which such payments are to be made;

(d) as to the method and timing of the transmission of payments which are made, to or through the Secretary of State or any other person, in accordance with the regulations;

(e) empowering the Secretary of State to direct any person liable to make payments in accordance with the assessment—

(i) to make them by standing order or by any other method which requires one person to give his authority for payments to be made from an account of his to an account of another's on specific dates during the period for which the authority is in force and without the need for any further authority from him;

(ii) to open an account from which payments under the assessment may be made in accordance with the method of payment which that person is obliged to adopt;

(f) providing for the making of representations with respect to matters with which the regulations are concerned.

41. Arrears of child support maintenance

(1) This section applies where—

(a) the Secretary of State is authorised under section 4, 6 or 7 to recover child support maintenance payable by an absent parent in accordance with a maintenance assessment; and

(b) the absent parent has failed to make one or more payments of child support maintenance due from him in accordance with that assessment.

(2) Where the Secretary of State recovers any such arrears he may, in such circumstances as may be prescribed and to such extent as may be prescribed, retain them if he is satisfied that the amount of any benefit paid to the person with care of the child or children in question would have been less had the absent parent not been in arrears with his payments of child support maintenance.

I should indicate that the Act was amended by the Child Support Pensions and Social Security Act 2000. Before the amendment, section 6(1) read as follows:

"Where income support, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if—

(a) she is a person with care of the child; and

(b) she is required to do so by the Commission,

authorise the Commission to take action under this Act to recover child support maintenance from the absent parent."

16. Subsection 5 said this:

"That authorisation shall be given without unreasonable delay by completing and returning to the Commission an application --

(a) for the making of a maintenance assessment with respect to the qualifying child or qualifying children; and

b) for the Commission to take action under this Act to recover, on her behalf, the amount of child support maintenance so assessed."

17. Also relevant is the Child Maintenance and Other Payments Act 2008. Section 2 of that Act came into effect in November 2008. Subsection 2 reads as follows :

"2) The Commission's main objective is supported by the following subsidiary objectives—

(a) to encourage and support the making and keeping by parents of appropriate voluntary maintenance arrangements for their children;

(b) to support the making of applications for child support maintenance under the Child Support Act 1991 (c. 48) and to secure compliance when appropriate with parental obligations under that Act."

18. The first issue, therefore, has been put forward before me as to whether the former wife did make a request to the defendant to stop enforcement of the arrears. In my judgment, on a claim for judicial review of the defendant's activities, that is not an entirely appropriate way to put the question. I must be careful not to substitute my judgment for the judgment of the defendant. What I must focus upon is the decision-making process and whether there were any flaws in that process. It seems to me, therefore, that the question I must ask myself is whether the defendant was entitled to take the view, on the information before it then, that such a request had not been made.
19. In my judgment the defendant clearly was entitled to make such a judgment. The e-mails and the letters I have referred to and, in particular in the forms that they went to the defendant, suggest clearly to me that the defendant was entitled to take the view that there was at the least uncertainty about whether a request was being made or not. That uncertainty, in my judgment, lasted from the time at which they received the letter dated 12 November 2008 with the handwritten addendum, that receipt being 14 November 2008, until 18 November 2008 and the e-mail which it received from the former wife at 12.45pm. That uncertainty was then resolved by the former wife saying that she wanted no action to close the case. That, in my judgment, was clear.
20. Accordingly, I am not persuaded that there was a request in the way that the claimant says there was. That being so, it is not necessary for me to go on to consider the next two issues. Firstly, whether a request to stop acting under section 6 of the 1991 Act does not oblige the defendant to stop enforcing the arrears and, secondly, even if a request to cease acting does cover action in respect of arrears, whether the defendant is entitled to recover arrears again as soon as it became clear that the parent in question does not wish in fact for the defendant to cease acting. Very often it is desirable that a court should deal with alternative arguments in case the matter goes further. In this particular case, in my judgment, it is not appropriate for me to do so. I am asked to review on the basis of judicial review of administrative action the decisions of a commission to which these decisions are entrusted by Parliament. It is not desirable for me to go on to deal with the case on an alternative factual basis, which differs from the finding which I have made.
21. The other points which are taken, firstly, are whether the defendant acted irrationally in continuing to enforce the arrears. There is now, in section 41 D of the 1991 Act, a power to accept part payment of arrears in full and final satisfaction, as set out in that section. That includes the giving of regulations that unless one of the conditions set out in subsection 4 is satisfied, the Commission may not exercise the power under subsection 1 without the appropriate consent. The appropriate consent for present purposes would be the written consent of the person in care with respect to whom the maintenance calculation was made.
22. It is submitted on behalf of the defendant that the fact that the new Act is required to give this power means that there was not a power on behalf of the defendant to accept the part payment of arrears in full and final satisfaction at the time.
23. Further, it is said that because of the information being available to the defendant at the time, showing that there was a question whether there was a valid and effective agreement in place, it cannot be said that the defendant's action is irrational. Furthermore, the defendant does not have the resources to investigate in a detailed way the question of private disputes. The defendant's task is to operate a self-contained statutory scheme. In order for that to operate effectively, it must maintain some distance from whatever arrangements are made between a parent with care and a non-resident parent, and in support of that submission the opinion of Lord Bingham, which I have quoted above is relied upon. In my judgment there is some force in all of those arguments and I accept them. I cannot say, on the facts of this case, that the defendant acted irrationally.
24. Finally, it is said that the defendant acted in breach of its duty under section 2 of the 2008 Act. Mr Burrows conceded that the Act was not in force when the arrears or at least some of them arose, but nevertheless contends that by the time the decision was made in February 2009 that act was in force. There is a subsidiary objective, under section 2(2)(a) of that act, to encourage and support the making and keeping by parents of voluntary maintenance arrangements for children, and Mr Burrows says that the decision in this case, as set out in the letter of 9 February 2009, is in breach of that duty.
25. I am not satisfied that it is. A number of points are made against that contention. The first point is that the defendant did not have notice of a private agreement. Secondly, even if an agreement had been reached, it was not a voluntary maintenance agreement within section 2(2)(a); it was an agreement to pay off the arrears.
26. Thirdly, the subsidiary objective in section 2(2)(b) of the 2000 Act is to secure parents complying with the obligations under the 1991 Act. Those obligations include the claimant's obligation to pay arrears.
27. Finally, the overriding objective in section 2, of which the subsidiary objectives are part, is an objective to maximise the number of children, living apart from one or both of their parents, for whom effective maintenance arrangements are in place. On these points, I prefer the submissions of the defendants. In my judgment the subsidiary objectives either in 2(2)(a) or 2(2)(b) of the 2008 Act are not such as to prevent the defendant from coming to the decision it did in February 2009 that the deduction from earnings order would continue in force.
28. Accordingly for those reasons this claim must fail.

HIS HONOUR JUDGE JARMAN: Yes.

MR MILLFORD : My Lord, I am very grateful. I would ask for costs to be assessed on behalf of the claimant.

HIS HONOUR JUDGE JARMAN: All right. Mr Burrows?

MR BURROWS : Well, my Lord, there is no schedule here as far as I …

HIS HONOUR JUDGE JARMAN: Well I don't think he has …

MR MILLFORD : No, no …

MR BURROWS : It's a detailed assessment not a summary assessment, because this is a hearing for under a day so one would normally expect a schedule.

HIS HONOUR JUDGE JARMAN: Well it's in the Administrative Court and the High Court. I am not sure that there is a requirement of a schedule in those circumstances

MR MILLFORD : Very well my Lord

MR BURROWS : Well, all I .. I accept that in principle an order for costs is appropriate, but, my Lord, I do ask you to say that that order should only run from after the decision of Wyn Williams J because, my Lord, as you know, a lot of the material on which this case has been based was not available to Mr Smith and his advisors until literally two or three working days before the hearing before Wyn Williams J.

HIS HONOUR JUDGE JARMAN: But the claim has been pursued since then …

MR BURROWS: Yes and I can't I can't oppose an order for costs that ran beyond … I am saying beyond that, my Lord, so I am asking that any order for costs should run and of course then we would have that period would be subject also to detailed assessment from the date, as I say, of the order of Wyn Williams J.

HIS HONOUR JUDGE JARMAN: Well the other way I have done it is for me to make an deduction (inaudible) from whatever order for costs I make, a percentage deduction. If I am not with you on the first ground is that something you would invite me to do?

MR BURROWS : Yes either from a date or a percentage … a date would make it I think probably easier for preparation of the bill because then if you are with me on that, my Lord, and it's not for me to say whether or not the Commission's solicitor's job should be made easier or not, but I mean they would then be required to prepare a bill for detailed assessment from …

HIS HONOUR JUDGE JARMAN: Mr Millford what…why were the letters not (inaudible) some time into this claim.

MR MILLFORD : My Lord, the reason is section 50 of the Child Support Act 1991, which makes it an offence to disclose letters save where certain conditions are satisfied, but the real point, my Lord, is what appears from page 60 of the bundle and that is that an early point, although my learned friend did not actually have the letter he knew exactly what it said because what he had been told what it said.

HIS HONOUR JUDGE JARMAN: This is the decision letter is it?

MR MILLFORD : This is the decision letter. That is right. My Lord I say …it's the third paragraph.

HIS HONOUR JUDGE JARMAN: The third paragraph?

MR MILLFORD : Yes.

HIS HONOUR JUDGE JARMAN: On?

MR MILLFORD : On page 60 at point 2 "you have requested a copy of Mrs Smith's email dated 18 November 2008."

HIS HONOUR JUDGE JARMAN: In fact, the annotation doesn't quite say that does it?

MR MILLFORD : My Lord, I am sorry I don't think the annotation…

HIS HONOUR JUDGE JARMAN: Oh, I see. The e-mail has been …

MR MILLFORD : The e-mail dated 18 November does say that, my Lord, yes, but … yes it does.

HIS HONOUR JUDGE JARMAN: But no reference is made to the letter of the 12^th?

MR MILLFORD : Well, my Lord, I think, if I may, and I believe that that was also discussed and well it is not clear, my Lord, but if you turn to page 261 …. Yes, to be fair to Mr Burrows it is not clear from here …

HIS HONOUR JUDGE JARMAN: No.

MR MILLFORD : But what is clear is that he was told that the parent with care did not want the case to be closed, which in my submission is the essential point.

HIS HONOUR JUDGE JARMAN: No, well that's more on the point about whether the request to cease can be revoked rather than whether there there was a request in the first place, which is the ground I found this case on

MR MILLFORD : That's right, my Lord. If one looks, however, at the claim which is .. and the grounds for the claim which start at page 9. When this claim first began it was essentially put on the basis of irrationality. If one looks at the grounds the request of whether or not there was a request is very much in the background, it only came to the foreground as a result of what we said and in fact what Wyn Williams J was obviously interested in at the permission stage so that is has all been foregrounded at a rather later stage …

HIS HONOUR JUDGE JARMAN: Well ..

MR MILLFORD : So that simply said I don't think …

HIS HONOUR JUDGE JARMAN: I am sorry, Mr Millford, to cut across you but background or foreground it was still part of the claim wasn't it?

MR MILLFORD : Well, I think, my Lord, in fact if my Lord looks at the grounds the essential point being made is that it is irrational not to take account of an agreement reached not that a request is being made within section 6(11) of the Act.

HIS HONOUR JUDGE JARMAN: Well, in paragraph 21 the Commission were not prepared, as it eventually turned out, to comply with HS's instruction to them and the Child Support Agency.

MR MILLFORD : Well, my Lord, the other point if one is looking at what the position was as regards whether a request was made and then revoked is that the position is clearly set out in the summary grounds, as well, at 53B.

HIS HONOUR JUDGE JARMAN: Well I am not presently minded to ask Mr Burrows again to deal with it on a date basis but I think perhaps if you could focus your submissions on whether there should be some percentage deduction to take account of his points.

MR MILLFORD : Well, my Lord, we say no and for the simple reason that first of all we say the position was clearly set out to Mr Burrows before the challenge was ever brought and, secondly, the position as regards the 12 November letter was also set out in our summary grounds.

HIS HONOUR JUDGE JARMAN: Thank you. Mr Burrows, do you want to come back?

MR BURROWS : Well, only just to answer the point which is raised at the third paragraph of the decision letter, my Lord. Reference is made to the Data Protection Act. My learned friend made reference to section 50 of the Child Support Act. As I know I have told the Agency in this case and on other occasions as well, section 50 subsection 6(d) authorises disclosure and it … and disclosure would be made a lawful authority under section 50.

HIS HONOUR JUDGE JARMAN: Well, disclosure was eventually given and was given without a court order, as I understand it.

MR BURROWS : Yes, but it could have been given in the first place.

HIS HONOUR JUDGE JARMAN: Well, that's what I am saying yes.

MR BURROWS : Yes exactly, I mean it could have been given … it could have … my learned friend raised it as a reason for not giving disclosure. Section 50 (6)(d) says that for the purposes of instituting or otherwise for the purposes of any proceedings before a court or before any tribunal or other body or person mentioned in this Act, then disclosure will be in the usual way of disclosure as between parties.

HIS HONOUR JUDGE JARMAN: Yes

MR BURROWS : Most of Section 50 is … does prevent disclosure. It doesn't for court proceedings. My Lord, I do ask yes that you … whether it be from a date or whether it be a proportion and I ask you to say it should be a proportion, bearing in mind that a substantial amount of work was done in this case without…and that the case had to be adjourned by Wyn Williams J to enable Mr Smith to reply to disclosure which had finally been made, my Lord

HIS HONOUR JUDGE JARMAN: Do you wish to come back at all, Mr Millford? Not to reply but … is there any point of law which you wish to raise?

MR MILLFORD : There is no point of law, my Lord. It's a factual dispute

HIS HONOUR JUDGE JARMAN: Well having dismissed this claim, the defendants make an application for costs, which is not in the principle objected to on behalf of the claimant. What is said, however, is that in relation to the primary ground on which this claim has proceeded today, that is whether there was a request by the former wife within the terms of the legislation or not, that position only became clear to the claimant shortly before the order of Wyn Williams J. That was the reason why he indicated that the former wife should be given the opportunity at least of serving a witness statement to explain the two letters written on 12 November, one without her handwriting upon it and one with. At a fairly late stage, there was a witness statement filed on behalf of the defendant by Margaret Basey quite properly setting out that although at one stage the defendant had assumed that two letters dated 12 November had been received at the same time, it now appears that the one where there was no handwritten annotation by the former wife was received by the claimant's solicitors at a later date.

It has been said that the defendant was cautious about making disclosure of these letters because of data protection, but is clear that they did eventually disclose them in these proceedings without the need for a court order. It does seem to me that these letters were vital for this case properly to be argued. Although Mr Millford says that the issue of whether there was a valid request was in the background of the grounds, it was clearly relied upon as one of those grounds and in my judgment it is an important part of these proceedings and always has been. It is true that even since the disclosure of these letters the claimant has continued to bring this claim and he has failed on all of his remaining points.

For those reasons it does not seem to me either appropriate or practical to differentiate between different stages of the proceedings and different dates, but nevertheless it does seem to me that an amount of work was generated by uncertainty in relation to exactly what the former wife had said. Although in the decision letter in question, there was reference to her request on 18 November not to terminate her case, there is no reference to the letter received on 14 November with a handwritten annotation. It seems to me, therefore, that that might well have given the impression that the issue was whether a request once made can be revoked rather than whether the request was made in the first place.

For all those reasons, in my judgment it is appropriate to make some deduction from a costs order. This is not a scientific calculation; it is not a mathematical calculation. It is a matter of impression, having regard to the way in which this case has been argued today and the evidence which has been forthcoming now from the former wife and further evidence from the defendant. In my judgment the proper order is that the claimant should pay 80% of the defendant's costs to be the subject of detailed assessment in default of agreement.

HIS HONOUR JUDGE JARMAN: Is there anything else?

MR BURROWS : My Lord I only ask please…this case started as an application for an interim order and Wyn Williams J indicated that he anticipated that the Secretary of State would not pursue enforcement pending the outcome of this hearing and that had happened. There is a hearing date fixed in the magistrates' court I believe somewhere in the north of England to deal with criminal charges arising from the deduction from earnings order and I ask for a stay on any further enforcement for a period of 21 days to give Mr Smith an opportunity to decide whether to appeal and for that stay to continue if notice of appeal is filed at the end of 21 days.

HIS HONOUR JUDGE JARMAN: Well first of all you have … that is rather putting the cart before the horse.

MR BURROWS : I am sorry, my Lord.

HIS HONOUR JUDGE JARMAN: Do you apply for permission …

MR BURROWS : Of course this is in the permission hearing … sorry I do … My Lord I do … I do apply for permission to appeal

HIS HONOUR JUDGE JARMAN: And on what grounds?

MR BURROWS : I apply essentially on the basis that (a) my submission is that there was an agreement. Now plainly on that basis my Lord my submissions and your findings are directly in opposition. Secondly that there was a request to cease acting as a result of that … within that agreement or as a byproduct of that agreement. And thirdly that with that request to cease acting it was open to the Secretary of State to distinguish between arrears due to Mrs Smith, sorry for the Commission, to distinguish between arrears due to Mrs Smith and arrears due to the Commission. Now plainly that is not a matter which featured in your judgment at all because of your findings, my Lord, and I can't in any way criticise or make comment on that my Lord, and I don't because I don't seek to make that as it were directly a ground of appeal. But I would say that on from my submission on the two factual matters, plainly the submissions on the distinction between the two sets of arrears would arise and that those are important points of principle, and I am not arguing on the section 55 point, but those are important points of principle which could or should be considered by the Court of Appeal, my Lord.

HIS HONOUR JUDGE JARMAN: Thank you, Mr Burrows. I am afraid I am not going to give permission. It seems to me, as I indicated, that this is a case which does turn on some facts. I have directed my attention not to what I feel the decision ought to have been but whether the response was within a reasonable ambit and it seems to me in that event you have no reasonable prospect of appeal. But of course you can renew your application to the appeal court. Now do you pursue your application for a stay?

MR BURROWS : My Lord I do. I mean I appreciate that I pursue it against the backdrop of permission to appeal not being granted. My Lord, it is not unusual for judges not to grant permission to appeal I quite understand that, so I would ask you to say still that it would not be unusual to ask us to allow a stay for a very limited period of time

HIS HONOUR JUDGE JARMAN: No I am afraid not, Mr Burrows. I take the view that these arrears have now been outstanding for a very long time and if the claimant wishes to pursue an appeal you will have to do that but pay in the meantime. Is there anything else?

MR MILLFORD : No.

HIS HONOUR JUDGE JARMAN: Mr Burrows?

MR BURROWS : No, no thank you my Lord, sorry.

HIS HONOUR JUDGE JARMAN: Thank you both very much