HC Deb 03 July 1958 vol 590 cc1709-11

Lords Amendment: In page 15, line 16, at the end to insert: (3) It is hereby declared that a magistrates' court has jurisdiction to hear a complaint by or against a person residing outside England for the discharge or variation of an attachment of earnings order made by a magistrates' court; and where such a complaint is made against a person residing outside England, then—

  1. (a) if he resides in Scotland or Northern Ireland, section fifteen of the Maintenance Orders Act, 1950 (which relates to the service of process on persons residing in those countries) shall have effect in relation to the complaint as it has effect in relation to the proceedings therein mentioned; and
  2. (b) if the said person resides outside the United Kingdom and does not appear at the time and place appointed for the hearing of the complaint but it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the complainant has taken such steps as may be prescribed to give to the said person notice of the complaint and of the time and place aforesaid, the court may, if it thinks it reasonable in all the circumstances to do so, proceed to hear and determine the complaint at the time and place appointed for the hearing or for any adjourned hearing in like manner as if the said person had then appeared.

Mr. Renton

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment arises from the fact that a magistrates' court has no general jurisdiction to hear a complaint where one of the parties resides outside England and Wales. It is no disrespect to the Welsh but a matter of interpretation that the word "England" only is used in the Amendment. That is the usual form. With an attachment of earnings order made in a magistrates' court, the fact that there is no jurisdiction to hear a complaint where one of the parties resides outside England and Wales could mean that if the woman later leaves the country the man could not get a complaint for the variation or discharge of the order on its feet, even although he might have a very good case—and the order would remain binding on the employer, which would be a very strange result. I am sure that the House will agree that that is clearly wrong.

The effect of the Amendment is to confer jurisdiction on a magistrates' court to hear complaints for variation or discharge, even though one of the parties—it may be either the husband or the wife—has gone to live outside England and Wales. However, provision is made for the party who has gone abroad to be notified in the appropriate manner whenever possible.

Question put and agreed to.

Lords Amendment: In page 16, line 23, at the end to insert: ( ) A complaint for an attachment of earnings order may be heard notwithstanding that the complaint was not made within the six months allowed by section one hundred and four of the Magistrates' Courts Act, 1952.

Mr. Renton

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is a purely technical Amendment. Section 104 of the Magistrates' Courts Act, 1952, provides: Except as otherwise expressly provided by any enactment, a magistrates' court shall not … hear a complaint unless … the complaint was made within six months from the time when the matter of complaint arose—a sort of statutory limitation. Section 74 (2) of this Act—which, by the way, has not been amended by one of the Lords' new Clauses which we considered earlier—provides that a complaint for maintenance arrears under the existing procedure may be made at any time, notwithstanding the limitation period in Section 104.

It is desirable to make a similar exception for a complaint for an attachment of earnings order. In other words, we do not want attachment of earnings orders to be frustrated by a six-months statutory limitation period, bearing in mind—and this is the crux of the matter—that there has already been a court order made, namely, a maintenance order, and the attachment of earnings order is merely a method of enforcement. As far I know, we have never had statutory limitation periods applied to orders of the courts.

Question put and agreed to.

Lords Amendment: After the Amendment last inserted, insert: ( ) For the avoidance of doubt it is hereby declared that a complaint may be made to enforce payment of a sum due and unpaid under a maintenance order notwithstanding that a previous complaint has been made in respect of that sum or a part thereof and whether or not an order was made in pursuance of the previous complaint.

Mr. Renton

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is another technical Amendment, and is very much a lawyer's point. It is for the removal of a lawyer's doubt, and starts off with the words, "For the avoidance of doubt". There is a general rule of law known to the lawyers as the principle of res judicata—that is the robust anglicised pronunciation of the courts—whereby once a court has made an order one way or another no other court can consider the same matter and make any other order, except, of course, a court of appeal by way of appeal. It is just possible that, unless we remove the doubt, the principle of res judicata might be thought to prevent an attachment of earnings order from being made recovering an amount for which a complaint has previously been dismissed.

The sort of circumstances that might arise are these. A wife would think that she has ground for an attachment of earnings order. She would go to the court and prove her arrears, but, unknown to her at the time she went to court, her husband had lost his job and had no earnings which could be attached; and so the application would be dismissed. A few weeks later, the husband might win something on the football pools or might find himself once more in a very good job. We would not wish the principle of res judicata to apply so as to frustrate the wife from going to the court again and trying once more to get an attachment of earnings order. The Amendment will ensure that the wife will not be frustrated in that way.

Question put and agreed to.