Administration of Justice Act 1970

PART II Sections 9 and 20 as amended

9 (2) An attachment of earnings order made to secure maintenance payments shall cease to have effect—

(a) upon the grant of an application under section two of this Act for the registration of the related maintenance order under Part I of this Act, notwithstanding that, in the case of an application under subsection (1) of that section, the grant may subsequently become void under subsection (2) thereof;

(b) where the related maintenance order is registered under the said Part I, upon the giving of notice with respect thereto under section five of this Act;

(c) upon the making of an order of commitment or the issue of a warrant of commitment for the enforcement of the related maintenance order, or upon the exercise for that purpose of the power conferred on a magistrates' court by subsection (2) of section sixty-five of the [1952 c. 55.] Magistrates' Courts Act, 1952, to postpone the issue of such a warrant;

(d) upon the discharge of the related maintenance order while it is not registered under Part I of this Act;

(e) upon the related maintenance order ceasing to be registered in a court in England, or becoming registered in a court in Scotland or Northern Ireland, under Part II of the [1950 c. 37.] Maintenance Orders Act, 1950 ;

and where an attachment of earnings order so made ceases to have effect as aforesaid the proper officer of the prescribed court shall give notice of the cessation to the person to whom the order was directed:

Provided that where the related maintenance order is discharged as mentioned in paragraph (d) of this subsection and it appears to the court discharging the order that arrears thereunder will remain to be recovered after the discharge, that court may, if it thinks fit, direct that this subsection shall not apply.

(4) Where, in the case of an attachment of earnings order made by the High Court or a county court to secure maintenance payments, it appears to the collecting officer of the court that—

(a) the aggregate of the payments made for the purposes of the related maintenance order by the debtor (whether under the attachment of earnings order or otherwise) exceeds the aggregate of the payments required up to that time by the maintenance order; and

(b) the normal deduction rate specified by the attachment of earnings order (or where two or more such orders are in force in relation to the maintenance order, the aggregate of the normal deduction rates specified by those orders) exceeds the rate of payments required by the maintenance order; and

(c) no proceedings for the variation or discharge of the attachment of earnings order are pending,

the said officer shall give the prescribed notice to the person to whom he is required to pay sums received under the attachment of earnings order and to the debtor, and the court shall make the appropriate variation order, unless the debtor requests it to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request.

In this and the next following subsection " the appropriate variation order " means an order varying the attachment of earnings order in question by reducing the normal deduction rate specified thereby so as to secure that that rate (or, in the case mentioned in paragraph (b) of this subsection, the aggregate of the rates therein mentioned) is the same as the rate of payments required by the maintenance order or is such lower rate as the court trunks fit having regard to the amount of the excess mentioned in paragraph (a) of this subsection.

(5) Where, in the case of an attachment of earnings order made by a magistrates' court to secure maintenance payments, it appears to the collecting officer that the conditions specified in paragraphs (a) to (c) of the last foregoing subsection are satisfied, that officer shall make an application to that court for the appropriate variation order, and the court—

(a) shall grant the application unless the debtor appears at the hearing thereof and requests the court to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request.

20 (1) Notwithstanding anything in this Act or Part II of the Administration of Justice Act 1970, the clerk of a magistrates' court who is entitled to receive payments under a maintenance order for transmission to another person shall not—

(a) apply for the registration of the maintenance order under Part I of this Act or give notice in relation to the order in pursuance of subsection (1) of section five thereof; or

(b) apply for an attachment of earnings order to secure payments under the maintenance order or (except as required by section 9(5) of this Act) an order discharging or varying such an attachment of earnings order ; or

(c) apply for a determination under section 22 of the Administration of Justice Act 1970,

unless he is requested in writing to do so by a person entitled to receive the payments through him ; and where the clerk is requested as aforesaid—

(i) he shall comply with the request unless it appears to him unreasonable in the circumstances to do so ;

(ii) the person by whom the request was made shall have the same liabilities for all the costs properly incurred in or about any proceedings taken in pursuance of the request as if the proceedings had been taken by that person ;

and for the purposes of paragraph (ii) of this subsection any application made by the clerk as required by the said subsection (5) shall be deemed to be made on the request of the person in whose favour the attachment of earnings order in question was made.

(2) Subject to rules of court made by virtue of section 18(3)(c) of the Administration of Justice Act 1970, an application to a magistrates' court by virtue of subsection (2) of section four of this Act for the variation of a maintenance order and an application to a magistrates' court for an attachment of earnings order, or an order discharging or varying an attachment of earnings order, shall be made by complaint.

(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 to secure maintenance payments ; and where such a complaint is made against a person residing outside England, then—

(a) if he resides in Scotland or Northern Ireland, section fifteen of the [1950 c. 37.] 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

(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.

(4) For the purposes of section forty-three of the [1952 c. 55.] Magistrates' Courts Act, 1952 (which provides for the issue of a summons directed to the person against whom an order may be made in pursuance of a complaint)—

(a) the power to make an order in pursuance of a complaint by the debtor for an attachment of earnings order, or the discharge or variation of such an order, shall be deemed to be a power to make an order against the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court); and

(b) the power to make an attachment of earnings order, or an order discharging or varying an attachment of earnings order, in pursuance of a complaint by any other person (including a complaint in proceedings to which section 14(4)(b) of the Administration of Justice Act 1970 applies) shall be deemed to be a power to make an order against the debtor.

(5) An application to a magistrates' court for a determination under section 22 of the Administration of Justice Act 1970 shall be made by complaint; and on making a determination under that section a magistrates' court may in its discretion make such order as it thinks just and reasonable for the payment by any of the persons mentioned in subsection (2) of that section of the whole or any part of the costs of the determination (but subject to subsection (1)(ii) of this section) ; and costs ordered to be paid under this subsection shall—

(a) in the case of costs to be paid by the debtor to the person in whose favour the attachment of earnings order in question was made, be deemed to be—

(i) if the attachment of earnings order was made to secure maintenance payments, a sum due under the related maintenance order, and

(ii) otherwise, a sum due to the clerk of the court; and

(b) in any other case, be enforceable as a civil debt.

(6) . . . . . . . . . .

(7) 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 [1952 c. 55.] Magistrates' Courts Act, 1952.

(8) 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.