FPR 33 leaves district judges in a challenging position, Peter Glover writes.
Enforcement law and procedure has always been the poor relation of our justice system. Before the implementation of the Civil Procedure Rules, it was weighed down with an excrescence of complex case law. It was then relegated to the schedules, and enjoyed only a gradual rehabilitation to the main rules of court – happening only in April 2014 in the case of writs and warrants. Attachment of earnings (AEO) and judgment summonses still languish in the schedules.
It was even worse for the family lawyer between 1999 and the coming into force of the Family Proceedings Rules 2010 (FPR), when it remained necessary to access pre-1999 enforcement forms: where to find a praecipe for a warrant or application for an oral examination?
It would be nice to think it is all plain sailing under the FPR, but enforcement procedures have not enjoyed the best attentions of the rules committee or the draftsmen. Even the learned editors of the 2015 Red Book find themselves on challenging terrain from the very outset of FPR 33.
The starting point for enforcing money orders is familiar: evidence in the form of a witness statement (including a calculation of the amount said to be due) is required together with an application for an order which either specifies an enforcement method or requests ‘such method of enforcement as the court may consider appropriate’ (FPR 33.3(2)(b)). More about that below.
How, then, to apply? The rule provides for the use of a part 18 application notice ‘except where a rule or practice direction otherwise requires’. Applied by rules 33.24 and 25 respectively, CPR PD 73 (third-party debt order (TPDO)) and PD 74 (charging order (FCO) against land) require the use of forms N349 and N379 respectively. If securities are to be charged, the form is N380. Although the CPR identifies and provides forms for applying for AEO (CPR 4(1) states that forms N336 and N337 ‘shall be used in the cases to which they apply’), the Red Book editors suggest their use is not mandatory.
So far, so good, but what is to happen if the choice of remedy is left to the court? This is the more likely application to be made by litigants in person and is a startling innovation, being one example among many of legislative and regulatory initiatives since 2010 which require district judges to assume the role of the litigant’s solicitor!
Rule 33.3(3) explains that when such an application is made, an order to attend court will be issued and that CPR 71.2(6) and (7) will apply. The resultant hearing is for the express purpose of obtaining information from the paying party about his financial circumstances. In their notes to rule 33.3, the 2015 Red Book editors express the view that ‘[T]he other provisions of CPR 71 do not appear to be incorporated’. This overlooks rule 33.23, which expressly applies CPR 71 with only contextual changes. This apparent oversight undermines much of the procedural guidance offered. For example, the editors state that the questioning ‘should’ take place before a judge ‘who may direct the issue of a warrant… or make a (FCO) or (TPDO) without further formality or fee’. Is it really so simple?
It is clear from rule 33.3(3) that a rule 18 application notice will suffice and the otherwise mandatory forms (N316 or N316A) are not required. Upon receipt, the court should issue an order to attend court for questioning and form N39 (another form prescribed for use by CPR 4 in PD table 1, even though not referred to in CPR 71 or PD 71) fits the bill nicely.
First question: how should the questioning be conducted? As CPR 71.6 is incorporated, questioning should be carried out by a court officer. The judge may only be involved where there are ‘compelling reasons’ why the questioning should take place in his presence (CPR PD 71.2.2). There is nothing in the rules to suggest that use of the rule 33.3(2)(b) procedure is of itself a ‘compelling reason’. Further, it should be remembered that at such a hearing: the judge does not ask questions; the judgment creditor must attend to do so; the helpful, enforcement-focused, standard questionnaires are not used; and while the questioning is recorded, no judicial note is made (CPR PD 71.5). This process, carried into the FPR without amendment, conflicts in almost every respect with the precipitous proactivity suggested in the Red Book.
I would far rather that the debtor is questioned by the court officer using the standard questionnaire forms, which I can review later, if I have provided time in the list to consider the most appropriate remedy, and in the presence of the parties.
Assuming that an appointment for the parties to attend immediately after the questioning of the paying party has been listed when the judge can consider the completed standard questionnaires compiled by the court officer, the second question arises: how can the judge make, for example, an interim charging order without sight of admissible evidence of title to the land to be charged? Further, as the use of N349 and N379 is mandatory by virtue of the CPR and rule 33.3(1), if the judge considers that enforcement by a TPDO or FCO is appropriate, it must be necessary for the applicant to apply formally on the mandated form and pay the appropriate fee.
What if the district judge is asked to make an AEO to enforce arrears of maintenance? Again, assuming that a hearing to consider the appropriate mode of enforcement has been listed to follow the questioning, and the hearing is treated as the hearing date for the purposes of schedule 2 to rule 4 of order 27 of the CPR, how does s/he get round the requirement to allow the debtor eight days to file their N56, being a prescribed form and, perhaps more importantly, an essential first step in the procedural route to committal in the event of non-compliance?
What about the requirement for personal service upon the debtor, not less than five days before the AEO hearing, of the requirement to attend? Will the N39 serve the purposes of N336/7, too, even though no reference is made in the former to an application for AEO? After all, there have to be some article 6 limits to the use of powers to abridge time for service or disapply inconvenient rules. Finally, where is the district judge going to find time to do all this, in the likely presence of two litigants in person?
There is nothing in rule 33 to require the district judge to plump for just one method of enforcement. There may be several appropriate methods indicated by the questionnaire replies and it seems to me that I am entitled to draw these to the attention of the parties and leave it to the applicant to make a choice. If I opt for one to the exclusion of others, the selected method may fail to the temporal and, perhaps, financial disadvantage of the applicant. Of course, I cannot be sued in negligence if I make the wrong selection, but why would any judge willingly place themselves in such a position?
District Judge Peter Glover sits at Dartford County Court. This is the first of two articles on enforcement and the family court