Marston holdings child support

[zeke]

Form N446 Request for Re-issue of Enforcement or an order to obtain information from judgment debtor (not warrant)

Nothing in that extends the limitation period. It's just a re-issue of enforcement. The only time I see that is when the debtor's address has changed.

and CPR82.3 is tertiary legislation and the Limitation Act is an Act of Parliament. I don't think a court has the power to rebuke an Act of Parliament. There is no provision in the Limitation Act that enables a court to vary it.

Do you have the source for Lowsley v Forbes?

[Syd Snitkin]

FFS Nigel - a LO or CCJ secures a debt. It must be applied for within 6 years of the debt becoming due. If an application is made after 6 years you can use the LA as a defence. If a default judgement is made after the 6 years, you can apply for a set aside to lodge a LA defence.

Legislation then states that the creditor has 6 years to enforce that judgement. However, if he is unable to he can apply to the court using N446 to request the enforcement period is extended. The creditor must give a reason - in Lowsley v Forbes the reason was that the debtor fled the country returning after 6 years. The court ruled that an extension of enforcing an existing CCJ did not constitute a new action.

The case - https://publications.parliament.uk/pa/l ... owsley.htm

[John The Baptist]

I'm not sure that the N446 form is essential in these situations.

CPR 83(3) states only that permission of the court is required and this can easily be obtained during the application for the warrant/writ given they generally have a 12 month lifespan. As I stated previously, some companies do not seek permission - They simply apply for a writ/warrant which is then sealed without batting an eyelid. There is nothing within PD83 that points towards an N446 form.

It is another little grey area of the law that works against the debtor.

Nigel - The first thing you need to understand is that people who draft Rules & Regulations are not dragged in off the streets. They do not blithely draft these instruments without first cross checking other statutes. You have to ask yourself, did the person who drafted the latest CPR have knowledge of the LA or is your knowledge greater?

[Syd Snitkin]

I'm not sure that the N446 form is essential in these situations.

I'm just repeating what the Money Claims site says, plus various solicitor sites.

[John The Baptist]

There's nothing within CPR that states the form should be used. Only that permission from the court should be sought.

[Syd Snitkin]

A majority of applications need a form of some sort. Solicitor sites say it's that form so I'm happy to go with that.

[John The Baptist]

The problem with that is that if a form is not sent in and permission to continue with enforcement is granted, you have no recourse.

In practice, a writ or a warrant is applied for and permission should also be sought at that point. Whether permission is ever asked is another question and I’ve certainly come across cases when it hasn’t been but a writ has been issued.

[Syd Snitkin]

The debtor could surely ask the court whether the application has been made?

[John The Baptist]

The debtor could ask the court whether permission had been asked for and granted.

[John The Baptist]

It's worth noting at rule 83.4:

(4) An application for permission may be made in accordance with Part 23 and must—

I would say that if an application for permission was made on an N244 or even on the Applicants own sheet of paper (containing the required information), it would be perfectly acceptable.

The biggest problem is not how the application was made (& if permission has been granted, it would be very difficult to get that overturned, regardless of how it was asked for/applied for). The biggest problem is that companies are obtaining writs for judgements that have been obtained more than 6 years previously, where permission has not been sought, nor indeed granted.

[John The Baptist]

So...

83.2(1)(a):

(1) This rule applies to—

(a) writs and warrants of control;

83.2(3)(a):

(3) A relevant writ or warrant must not be issued without the permission of the court where—

(a) six years or more have elapsed since the date of the judgment or order;

83.2(4):

(4) An application for permission may be made in accordance with Part 23 and must—

[John The Baptist]

& a special thanks to my stalker for picking up that I'd missed a 2 out of the rules that I quoted.

[Syd Snitkin]

I'm wondering when we became part of the USA and have a Statute of Limitation.

Thing is, when reading up on this issue and looking at the advice from many solicitor sites, they all state that form N446 must be used to make the application. No doubt bailiffs just plough on and just ask for a new warrant and the clerks blithely wave them through but I would argue that a debtor should insist on demanding to see that application. I appreciate that courts may well just say 'well and application was made on a different form' and just accept it, as they did with a general complaint being turned into a formal EAC2, but it should be demanded that proper procedure is followed.

[John The Baptist]

The problem is, the N446 is not mentioned as being part of the proper procedure - It just states that an application to the court should be made in accordance with Rule 23.

No application requires a specific form, all that is stated is what should be listed on the application (ie case number, parties etc). The N446, along with the N244 is merely in place to assist applicants and applications will not be refused just because a particular form has not been used. As you said, even if there was a requirement, the court's case management powers would give it power to decide what was acceptable in terms of an application for permission. After that, there is Rule 10 to contend with which states that failure to comply with a rule does not invalidate further steps unless the court so orders.

[John The Baptist]

Whilst it is generally best to ignore that grubby little troll from the Manchester backstreets, there are odd occasions when his buffoonery provides for light hearted entertainment.

As with every other thread on this forum, our grubby little troll spends hours analyzing and researching what has been posted. In this particular case, the troll googled for applications and found an out of date order (2010):
https://www.justice.gov.uk/courts/proce ... rder46.pdf

Having re-read this thread again, the troll stumbled his way onto CPR 83. This is where his problems really started. He failed to read the scope & Interpretation at 83.1 and then decided that the rule didn't apply to writs & warrants until 83.4. The best is yet to come. He then read 83.4 and saw the following:

(Rule 84.5 contains provisions about applications to the court requesting a time extension.)

In his moronic, uneducated mind, he convinced himself that time extensions (applications to extend the time limit of taking control og goods from 12 months to 24 months) was actually relevant to situations where an application needs to be made for a writ or a warrant for a judgement made after a period of 6 years has elapsed.

It is quite possibly the most shocking, ridiculous interpretation I have ever read and this troll in particular has made some shockers over the years. Here is the troll's buffoonery in bright lights for your enjoyment:

Now CPR 83.4 says:
Writs and warrants conferring a power to use the TCG procedure – duration and priority
83.4

Actually, you are both wrong, as the relevant CPR is 84.5
Application to extend the period in which to take control of goods

84.5
(1) An application under regulation 9(4) of the TCG Regulations (application to extend the period in which to take control of goods) must be accompanied by—

AS you should see the instruction lays in this instrument and the act.

[John The Baptist]

Oh dear, knuckles isn't too pleased:

The correct section is cpr 83.4 of course

Actually it isn't. It is 83.2 as I posted a couple of posts above. If you look at the wording, it matches the link you first provided for the 2010 order that you posted. You were actually on the right lines to begin with - You just didn't know where to look. I posted the relevant rule, having had practical experience in this area. You then started reading it and got yourself into all kinds of a mess. Don't worry though - It brought a smile to my face last night. I referred to 83.2(3) but missed the 2 out and you got all carried away and soiled your Y fronts again. Naughty, naughty.

[John The Baptist]

Oh dear - The thread has been hijacked and the OP has been left dangling.

That's the same OP who hasn't been back since July 2017 BTW.

Surely these idiots are doing it on purpose? They cannot possibly be this thick in real life ......Can they?

[Syd Snitkin]

Oh dear - The thread has been hijacked and the OP has been left dangling.

That's the same OP who hasn't been back since July 2017 BTW.

I know, that's why I was happy to use it for discussion. It was Nobby Oddfellow, or whatever his name is, that posted on it a year after the last post. Not sure why he resurrected it but hey ho.

So with Mr Shifter knowing he'd lost the debate again, he decided to try to use the OP as an excuse to shut down further discussion. Mind you, it's sometimes difficult to keep up with what he said and when he said it as he posts his replies to random comments on the thread so everything is out of order. Not as bad as the time he posted a reply on CAG on a thread that was 2 years old though.

[John The Baptist]

He needs to be ignored. When he's not at the doctors/having check ups/having fingers chopped off, he's trawling these boards 24/7. He posts the most childish drivel possible, often commenting when he hasn't even had the benefit of viewing the documents that have been posted.

His latest calamity is one of the most shocking I've ever seen. He posted an out of date court order and claimed that, that was the correct procedure regarding applications to obtain writs or warrants if more than 6 years have elapsed since judgement.

He then gets pointed towards the latest procedure, which is word for word the same as his out of date order (other than "warrant/writ of execution" has been replaced with "warrant/writ of control"). Astonishingly, he claims that this rule (CPR 83.2) is "irrelevant". He then goes on to claim that CPR 84 is relevant just because he's read the words "Tribunals Courts and Enforcement Act" within it - Whilst failing to read these words at CPR81 & CPR82.

The bloke is a top notch idiot and thrives on the oxygen we supply him as it is all he has to do in the remainder of his sorry, pathetic, waste of a life. I see he is also monitoring who reads his blog. In that case, I'll stop reading that as well so as to take a little more oxygen away from him. Hopefully, he hasn't got long left and then maybe when he finally does the decent thing, the world (and certainly the internet forums) will be a better place.

[Will Goodfellow]

FFS Nigel - a LO or CCJ secures a debt. It must be applied for within 6 years of the debt becoming due. If an application is made after 6 years you can use the LA as a defence. If a default judgement is made after the 6 years, you can apply for a set aside to lodge a LA defence.

Not for child maintenance arrears accrued after 12th July 2000, there is no 6 year limitation in which to apply for a liability order.

[zeke]

That's the way I understand it.

[Syd Snitkin]

So arrears from say, 2001 that haven't yet got a LO, a LO can be applied for without argument? Just for clarity, can you reference the legislation.

[zeke]

I understand it to be section 33 of the Child Support Act 1991 and under sub-section (4) it states:

• (4)On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the maintenance assessment under which the payments of child support maintenance fell to be made.

When I got mine quashed, the solicitor contended no questioning the assessment is needed, but the application succeeded because the LO does not have an end-date and a statutory one applies. It nullifies the debt but not the enforcement power.

I was represented so I wasn't there, but those were the grounds given to me.

If the enforcement power was still valid, the CSA would have pursued it. I leaned it from Sheila Harding getting it with Mr Bardsley's credit card and troll-posting it on the Internet, the post and her identity were exhibited at court.

It is unknown whether the CSA can make repeated liability order applications for the same debt. I expect rules of court forbid repeated applications akin to the CPR's

[Will Goodfellow]

So arrears from say, 2001 that haven't yet got a LO, a LO can be applied for without argument? Just for clarity, can you reference the legislation.

"The Child Support (Collection and Enforcement) Regulations 1992

Application for a liability order

28.—(1) An application for a liability order shall be by way of complaint for an order to the magistrates’ court.

(2) Subject to paragraph (2A) there is no period of limitation in relation to an application under paragraph (1).

(2A) An application under paragraph (1) may not be instituted in respect of an amount payment of which became due on or before 12th July 2000."

See post 11 here:

viewtopic.php?f=4&t=4659&sid=ca2a7b4cf7 ... 147#p77699

[John The Baptist]

So arrears from say, 2001 that haven't yet got a LO, a LO can be applied for without argument? Just for clarity, can you reference the legislation.

"The Child Support (Collection and Enforcement) Regulations 1992

Application for a liability order

28.—(1) An application for a liability order shall be by way of complaint for an order to the magistrates’ court.

(2) Subject to paragraph (2A) there is no period of limitation in relation to an application under paragraph (1).

(2A) An application under paragraph (1) may not be instituted in respect of an amount payment of which became due on or before 12th July 2000."

See post 11 here:

viewtopic.php?f=4&t=4659&sid=ca2a7b4cf7 ... 147#p77699

As Michelle posted previously, there is still a 6 year time limit regarding the use of bailiffs.

If 6 years have elapsed since the order then an application must be made to the court for permission to issue a warrant. This application must include an explanation as to why there has been a delay in enforcing the order - CPR 82.3(4)(c).

It is also noteworthy that before bulldozing ahead with bailiffs, a demand to satisfy the order should have been made - CPR 82.3(4)(c)

[Syd Snitkin]

I did notice that Dr Claw has read the last few posts, then written the complete opposite believing that is what was posted. He's agreed with Mr Goodfellow by not agreeing with him. Wonder if he'll notice his error?

[zeke]

That would probably not work now because the Lugano convention provides for judgments to be enforced in another signatory country.