In my first article on the Family Procedure Rules 2010 (FPR) (see tinyurl.com/hmjxnws), FPR 33.3 was subjected to close scrutiny. It was suggested that the frail framework was inadequate to bear the weight of the revolutionary interpretation for which the Red Book editors contend.

Since publication, I have been made aware of a High Court decision in which FPR 33.3(2)(b) has been utilised by Mostyn J. In Kaur v Randhawa [2015] EWCA 1592 (Fam), the judge, finding that money stashed in the respondent’s brother’s bank account belonged to the respondent (whose account had already been the subject of a freezing order), made a final third-party debt order against the bank in respect of the lump sum and costs due  to the applicant.

In paragraph 19 the judge commented that ‘(i)t is not necessary to make an interim… order here. Here the money is already frozen and the husband and brother are before the court’. Perhaps in those circumstances the order made is unsurprising: certainly, the judge did not require the applicant to apply using form N349. But the account under attack had been specifically identified, the bank was aware of the attack by reason of the freezing order, and the account was in credit in a sum sufficient to meet the entirety of the debt (and the fixed administration charge to which the bank would be entitled upon the making of the order). It will immediately be plain that these are far removed from the usual circumstances faced by a judge on a 33.3(2)(b) application.

Before we leave part 71 of the Civil Procedure Rules (orders to obtain information), just a reminder that the creditor must pay to the person ordered to attend court (‘the debtor’) his reasonable travelling expenses if requested to do so upon service of N39, or within seven days thereafter, and must confirm that they have either been paid or not requested in the affidavit (not witness statement) of service required by CPR 71.5.

Finally, if the debtor fails to turn up, it remains the case that the suspended committal order needed to move the process on can only be made by a circuit or High Court judge. This may cause delay in smaller hearing centres where there is no permanent circuit judge. Furthermore, it seems to be anomalous as, in the event of the arrest of the debtor for any failure to comply with the conditions of the suspended order (see CPR 71.8(4)(a)), the district judge is empowered to imprison or discharge him (CPR PD 71.8.4). Bearing in mind a district judge’s powers of committal in relation to breaches of Family Law Act orders and (what used to be called) anti-social behaviour injunctions, perhaps this procedure requires revision.

Now I would like to consider the making of an attachment of earnings on an FPR 33.3(2)(b) application order. The court will have the respondent’s answers to the questions put by the judgment creditor (if questioned before the judge) or the court officer. These will disclose any employment and identify the employer and the wages or salary paid, as well as the debtor’s outgoings.

If it is right that recent job creation has been focused on low-paid, part-time or ‘zero-hours’ contracts of employment, the law is yet to catch up with economic realities. It is not possible to calculate ‘protected earnings’ or a ‘normal deduction rate’ if pay and hours vary week to week. Obtaining a statement of the debtor’s past and anticipated earnings by service on the employer of form N338 may reveal a regular and predictable history of work provided and paid. But if it does not, the calculation of averages is of no use, as the mechanism of deduction by the employer is linked to actual and not ‘average’ pay. Furthermore, there is always the possibility that service of N338 may provoke the employer to dismiss the debtor in the context of the part-time or variable contracts under scrutiny.

I dealt with some of the procedural problems confronting the district judge if asked to make an attachment of earnings at a 33.3(2)(b) hearing in my first article. Assuming those issues are resolved and the debtor is in  regular employment with a regular wage or salary, is the applicant going to get the debt paid? Attachable earnings are defined as pay less income tax, national insurance and pension contributions. Pensions in payment and statutory sick pay count as earnings (section 24 of the Attachment of Earnings Act 1971). Further deductions must be made so as not to reduce the debtor’s income below such amount as the court considers he reasonably needs (the protected earnings rate or PER) (section 6(5)(b) of the 1971 act).

In the context of family money orders, as opposed to an ordinary debt-related application, calculation of the PER is complicated by factors such as the debtor living away from the former matrimonial home, and possibly having responsibility for housing costs in respect of two households. He may be responsible for two lots of the usual utility and housekeeping bills, as well as the costs of maintaining a new partner and her dependant children, to the extent that she cannot do so from her own assets or earnings. Then there are the costs associated with his contact with, or care of, the children of the broken marriage.

Add to these the cost of servicing credit cards and loans, the necessary cost of maintaining a car and travel to and from work, and there is unlikely to be much spare to pay the debt owed to the applicant. If there is a surplus of attachable income over expenditure, that amount is likely to become the normal deduction rate. I doubt there will be many such cases.

It will be seen that the task for the district judge is not straightforward and is similar in many respects to the disposal of an application for maintenance pending suit. However, there is no need for service of an N56 statement of means or the subsequent enforcement orders in forms N61 and N63, so the process from application to order for service on the employer is telescoped.

FPR 33.3 has been the subject of considerable discussion and it is widely recognised that the drafting is insufficient adequately to disclose its intended purpose. If it is not already there, it will surely be on the rules committee’s ‘to do’ list soon.

District Judge Peter Glover sits at Dartford County Court

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