Fee (AP) v The Child Maintenance and Enforcement Commission [2014] ScotCS CSOH_32 (20 February 2014)

Fee (AP) v The Child Maintenance and Enforcement Commission [2014] ScotCS CSOH_32 (20 February 2014)

The sheriff was not precluded by section 33 of the 1991 Act from considering a defence of non-notification of the IMAs; the pursuer could competently have raised this issue before the sheriff. The pursuer has not averred exceptional circumstances or a miscarriage of justice sufficient to justify reduction of the liability orders on the ground of non-notification alone. However, the issue of informal payments to the ex-wife and whether the sheriff could have considered them may justify inquiry.

Citation
[2014] ScotCS CSOH_32
Parties
Pursuer: Alan Fee (AP); Defender: The Child Maintenance and Enforcement Commission
Jurisdiction
Scotland
Judgment Date
20 February 2014
Procedural Posture
Action for Reduction of Liability Orders (civil) / Procedure Roll Debate (interlocutory)
Outcome
Proof before answer allowed on specified issues; action not dismissed at this stage.
Legal Topics
Child Support Liability Orders, Notification Requirements, Reduction of Decrees, Competent and Omitted Plea, Statutory Appeals Process
Family Law Administrative Law Civil Procedure Child Support Liability Orders Notification Requirements Reduction of Decrees Competent and Omitted Plea Statutory Appeals Process

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Parties

Alan Fee (AP)

Pursuer

The Child Maintenance and Enforcement Commission

Defender

Procedural Posture

Action for Reduction of Liability Orders (civil) / Procedure Roll Debate (interlocutory)

Legal Issues

  1. 1 Whether the pursuer is entitled to reduction of liability orders for child maintenance on the basis of non-notification of interim maintenance assessments (IMAs)
  2. 2 Whether the sheriff was precluded from considering non-notification as a defence under section 33 of the Child Support Act 1991
  3. 3 Whether the plea of competent and omitted applies to bar the pursuer's claim

Ratio Decidendi

The sheriff was not precluded by section 33 of the 1991 Act from considering a defence of non-notification of the IMAs; the pursuer could competently have raised this issue before the sheriff. The pursuer has not averred exceptional circumstances or a miscarriage of justice sufficient to justify reduction of the liability orders on the ground of non-notification alone. However, the issue of informal payments to the ex-wife and whether the sheriff could have considered them may justify inquiry.

Court Disposition

Proof before answer allowed on specified issues; action not dismissed at this stage.

Orders

  • Allow proof before answer on (1) whether pursuer received notification of IMAs, (2) whether he could have appealed to the tribunal based on subsequent letters, (3) whether informal payments were made and their value, (4) whether IMAs could have been reduced by such payments.
  • Question of expenses reserved.