C, R (on the application of) v HM Court Service (North Devon Magistrates' Court, Barnstaple) & Ors

A renewed application for permission to seek judicial review should be refused where the proposed grounds disclose no arguable unlawfulness, irrationality or unfairness. A magistrates’ decision to refuse an adjournment may be challenged only on established public-law grounds. Where a liability order was made in the applicant’s absence, the court’s power to reopen it may be doubtful; even if such a power exists, its refusal to exercise the power is lawful where the decision is reasoned and discretionary. A liability order made under section 33 of the Child Support Act 1991 is not unlawful merely because the debtor later obtains legal representation. Costs beyond the ordinary costs of preparing an acknowledgment of service require exceptional circumstances.

The claimant sought renewed permission for judicial review after permission had been refused on the papers by Bennett J. He challenged a liability order made by Barnstaple Magistrates in his absence, the refusal to adjourn the hearing, and the magistrates’ refusal to set aside the order. He also challenged the Secretary of State’s decision to seek and maintain the liability order and alleged that the underlying arrears had been miscalculated. The third ground was abandoned, and the claimant abandoned the application against the magistrates during argument. The central issues were whether any proposed ground was arguable and whether the defendants’ decisions were unlawful, irrational or unfair.

1. The renewed application for permission was refused. The proposed challenges disclosed no arguable grounds of unlawfulness, irrationality or unfairness.

2. The magistrates had considered the adjournment request before making the liability order. Their refusal was reasoned and took account of the claimant’s decision to attend work, the history of non-payment, the existing assessment and the absence of an explanation for the delay in giving instructions. It was not arguably unlawful, irrational or unfair.

3. The magistrates’ subsequent refusal to set aside the liability order was also unimpeachable. Applying the approach in R (on the application of Mathialagan) v Southwark London Borough Council and another, it was doubtful that the magistrates had power to reopen the order. Even if they did, they acted properly within their discretion by refusing to exercise it.

4. There was no arguable basis for challenging the liability order itself, which had been made under section 33 of the Child Support Act 1991. Nor was there any arguable basis for challenging the Secretary of State’s decision to seek or maintain the order, or to refuse to agree to its being set aside. The proposed amendment adding an alternative challenge was refused.

5. The third ground, concerning calculation of the arrears, was abandoned. The application against the magistrates was also abandoned.

6. The court declined to find exceptional circumstances justifying attendance costs under the approach in Mount Cook. The ordinary order was made: the claimant was ordered to pay the Secretary of State’s costs of preparing the acknowledgment of service, summarily assessed at £1,080.

• High Court (Administrative Court): permission had previously been refused on the papers by Bennett J. Mr Justice King refused the renewed application for permission.