Direct attachment of earnings please HELP

Well im having an amazing last few weeks, firstly i have been banned from driving for six months because of mistakes by the court and the sheer complexity of my address. I have proven that we have real issues with the address as it used to be one big business and now it has been split into two businesses and one residential address (that we live in) i have just received a direct earnings attachment through my employer saying they have a legal obligation to deduct 20% of my earnings, now having done some digging it is from a former friend who is the claimant. Now as i have said i have not received any information on this because of my address, i have absolute proof of this as the MOD could not deliver to correct address, Northern Power could not locate the address when we had a power cut and my own GP can not see the address when you go to book an appointment online, when i called the county court i was told that i could issue a "stay of writ" and paid £14 to do so, i am not sure what has happened as i still have my employer saying they will deduct the money. I called the County court again today and was told that they received a request to stop the attachment of earnings, i said i want this to be returned to the courts as so that i can defend this as A) I do not owe this person any money at all and B ) I have received no paperwork at all for this in anyway, what i was told was that this would go in front of a judge to take a look at it (it looked as though my previous request had been dismissed and he said i should have received an order which i have not) I am usually paid on the 26th of each month and this is really going to hit me hard and hurt the family income, surely there is something i can do here as this is not right, i do not owe this persona anything and i have received NO paperwork. The court person did say from now on they will send everything via email rather than mail because of the address issues. My second question is can an employer legally deduct money in this way when it is not a criminal matter? i am not the most legal of minds but i do believe that i have read somewhere that you can challenge your employer on this as it is not lawful. Please if anyone...….anyone at all can help before i completely lose it mentally i would greatly appreciate it, we already have the death of my father and my wife's nan to deal with in the same week and this...…this is just a step to far. I have already contacted Royal Mail again.......to remedy our address.

I believe you need to inform your employer that this matter is in dispute.

Employment Rights Act 1996 Sec 13 (1) (b)

13 Right not to suffer unauthorised deductions.

(1)An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

Just thought i had better relay this response, so i contacted NCC to request a copy of the order as i needed the addresses i wanted to first submit a DSAR and Affidavit , i was told that they no longer held this information and it has been passed to my local court (Huddersfield County Court) so i requested the information from them, they have just responded saying " Thank you for your email.

Ordinarily I would send a duplicate notice of issue however there is no notice of issue on the system.

The claim, issued at the County Court Business Centre, should have been issued by that court and notice sent to all parties." and gave me the claimant's email address and contact mobile number. so this further enforces my argument that i didn't receive any paperwork regarding this case, Northampton say that Huddersfield have it, and Huddersfield say that NCC have it. So surely no judge should be able to reject a statutory declaration and have this sent back to the courts so that i can defend? i need them to half the direct earnings attachment before the 25th as i am due to be paid n the 26th, so i am going to the courts today, is there any advice that can be given please?

daveiron wrote:I believe you need to inform your employer that this matter is in dispute.

Employment Rights Act 1996 Sec 13 (1) (b)

13 Right not to suffer unauthorised deductions.

(1)An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

Thank you very much for this, i had been trying to find out this information, i had read something similar but i could not for the life in me think what it was.

Ok i wanted to make sure that i had all my ducks in a row first, Huddersfield CC stated that they do not hold any of the case paperwork, so again contacted NCC and gave them my case re number, they asked for my surname and last part of address and postcode. They had a different postcode, the CCJ was issued on 13.10.2020, and i have lived at this address for nearly 7 years, the claimant also knew this. So where has the paperwork been sent as it has certainly not been to myself and we have been on the electoral role for the duration. I have contacted my finance department as per Daveirons response and also informed them of why the case is in dispute and my findings today. Should my employer ignore my findings and go ahead with the order can i take action against them ?

This is all getting very confusing, after trying to chase down  a copy of the original order, and being told that they did not hold this information, i then reverie this today, it states that i made the application on the 5th and it was rejected on the 7th, yet no one had told me or even why, this is the second time they have done this as i followed their instructions before and was awaiting a date that i could be heard in court. I never received anything and thought it was a backlog, i don't understand what is happening here i really don't. I fall into the criteria as i knew nothing of this case until the direct earnings attachment, and i wanted to defend this in court. To add more fuel to the fire the courts had a different postcode for me , and this adds further to the fact i never received any paperwork. I just want this to be heard in court and i am being ignored, surely they can not do this? I'm sorry my mental state is not good,  i honestly feel as though i can not take anymore and experiencing thoughts i didn't think that i would, i already have PTSD and this is just making me worse. This was their response in the email


"  UPON the Court considering the Defendant’s application notice of 05 June 2023.
AND UPON it appearing that the Defendant is making the same application that has already been considered and
dismissed by Deputy District Judge Ellington on 13 February 2023.
AND UPON the Court noting that if the Defendant has complaint with the order made by the Court on 13 February
2023 then the correct course of action would be to seek the Court’s permission to appeal that decision rather than
making the application afresh.
IT IS ORDERED THAT
1. The Defendant’s application of 05 June 2023 is dismissed.
2. This Order has been made by the Court of its own initiative without a hearing, the parties have the right to
apply to have the Order set aside, varied or stayed pursuant to Rules 3.3(5) and 3.3(6) of the Civil Procedure
Rules 1998 such application to be sent and delivered to the court (together with any appropriate fee) to arrive
within seven days of service of this Order.
Dated 07 June 2023
The court office at the County Court at Huddersfield, Queensgate House, Queensgate, Huddersfield, West Yorkshire, HD1 2RR. When corresponding with the court,
please address forms or letters to the Court Manager and quote the claim number. Tel: 01484 421043 Fax: 0870 7395832. Check if you can issue your claim online.
It will save you time and money. Go to www.moneyclaim.gov.uk to find out more.
Produced by:Jane Walls
N24 General Form of Judgment or Order "

Ok this is making me ill and i can not stop looking to see if there is anything that i can do, i have no experience in any of this and i don't know if i submitted the wrong form, did i not fill it in correctly ? i did find this, now i only paid £14 which is what i was told, should i have done this? as i have no idea what i have done now that i see this.



To set aside a default judgement an application to court using the relevant court form should be made. A fee is payable for the application. The application notice must state the grounds for applying to set aside judgement and whether the application is made under CPR 13.2 or CPR 13.3 or both. A draft of the court order requested should be attached to the application form.

The application must be supported by written evidence in the form of a witness statement verified by a statement of truth. The evidence should establish the factual basis for the application and may include:

Evidence that the Defendant did not receive the claim form and/or the particulars of claim (although this does not give you the automatic right to have the default judgement set aside)
Evidence of defective service
Evidence that there are incorrect parties to the proceedings
Evidence as to why the Defendant allowed a default judgment to be entered
Evidence as to why there was any delay in making the application to set aside the judgment
Details and evidence of why the Defendant has a real prospect of successfully defending the claim or any other reason why the judgment should be set aside or varied or why the Defendant should be allowed to defend the claim.
Documentary evidence, if available, to confirm the position.
As an alternative, in certain circumstances, it may be possible to obtain the consent of the Claimant to allow the default judgement to be set aside. If this is possible, a consent order is agreed between the parties and filed with the court for approval.

not really had a chance to read through this properly and understand what has happened but it appears that you made some form of application or complaint against the original decision or order back in february which was dismissed, then tried again in june.

this is a civil court matter and any application to set aside an order or vary it or have it stayed must be done correctly, using the correct CPR rules and also submitting a witness statement and evidence to support the application. failure to do this will give any judge the ammunition to just dismiss it without even bothering to really look at it, fair ? of course not but that is the civil injustice system.

I think we need to go back to what you did at the beginning and how you did it, how you applied to the court and what evidence you sent in with any application and what you said in your statement, here we will probably find that you did not 'play' by their rules making it easy for them to dismiss your application.

this, for me, is where we need to start.

I also read about a statutory declaration which is usually in a magistrates court ? so there also appears to be 2 different cases being discussed here ?

aologies if i have got this wrong ?

Sorry i am probably being really confusing here, i am really struggling with PTSD from the military and this has put me in a bad place mentally, to the fact that i have had suicidal thoughts and have daily struggles to make it just go away. I'm not a bad person but life is kicking me to ground daily and I'm struggling to get back up. I shall try and create a timeline of events and hopefully its easy to read.

December 2022:
I receive a direct attachment of earnings notice via my employer, i can the Huddersfield county court and they advise me to complete an N244 and pay the £14 fee, in the statement i ask for this to be heard in court as A) I have received no paperwork and can prove we have serious issues with my address for this B) I have a witness who was privy to the conversation where the claimant said he did not want any money back C) The claimant had made threatening and suggestive comments to my wife for money D) Northampton CC had an incorrect postcode for me even though i have been at the same address for seven years and the order was made on 14.10.2020. I heard nothing and i am ignorant to court issues as i have zero experience so i was expecting some communication from the courts for a date to be heard. I hear nothing until again on
12.06.23
My employer email to notify me of a direct attachment of earnings, again i call the court, they can see that i have submitted an N244 in February, and say i can submit another N244 (I record all calls so that i can use as notes) which i do so, in the meantime i request a copy of the full order and paperwork as i have never received them. NCC say that all data is now controlled by the Hudds court, Hudds court say that NCC have the data and i am left in limbo all of this adds time onto the process, and yesterday i receive an email from the Huddersfield CC with the claimants address that i had been asking for along with these comments which i don't understand fully, but reading between the lines i have been poorly advised by whomever took my call at Hudds and told me to submit another N244 , maybe i should have appealed the appeal? if so i have no idea how to do ths and my mental state is deteriorating fast, please can anyone.....anyone help me.

" " UPON the Court considering the Defendants application notice of 05 June 2023.
AND UPON it appearing that the Defendant is making the same application that has already been considered and
dismissed by Deputy District Judge Ellington on 13 February 2023.
AND UPON the Court noting that if the Defendant has complaint with the order made by the Court on 13 February
2023 then the correct course of action would be to seek the Courts permission to appeal that decision rather than
making the application afresh.
IT IS ORDERED THAT
1. The Defendants application of 05 June 2023 is dismissed.
2. This Order has been made by the Court of its own initiative without a hearing, the parties have the right to
apply to have the Order set aside, varied or stayed pursuant to Rules 3.3(5) and 3.3(6) of the Civil Procedure
Rules 1998 such application to be sent and delivered to the court (together with any appropriate fee) to arrive
within seven days of service of this Order.
Dated 07 June 2023
The court office at the County Court at Huddersfield, Queensgate House, Queensgate, Huddersfield, West Yorkshire, HD1 2RR. When corresponding with the court,
please address forms or letters to the Court Manager and quote the claim number. Tel: 01484 421043 Fax: 0870 7395832. Check if you can issue your claim online.
It will save you time and money. Go to www.moneyclaim.gov.uk to find out more.
Produced by:Jane Walls
N24 General Form of Judgment or Order

it appears to me that your reasons for setting aside were not accepted by the Judge in your original application, now when a judge makes an order you should have a period of time to vary or set a side that order but i will bet you never received that order so lost that right which is an argument in itself.

your application, it would seem, from what i can see was really very poor in terms of what was needed A ) is ok but would need evidence of the issues you have and the fact that the court itself used the wrong postcode B) not good at all, you have hear admitted that you had the money the claimant is claiming but someone heard that you didnt have to pay it back, did you get a written statement form this person and file it with the application ? if not then the judge would just dismiss that. C) any evidence submitted of this ? and that would likely be a criminal matter and not civil so likely the judge dismissed that too D) again not helpful as it is just about not receiving claim no defence as to why you dont owe any money.

your obviously serious mental health condition could help you a lot with this but anyone who could really help you would need to see all of the paperwork and have the opportunity to then ask you certain questions

although i dont like to go this route i would strongly suggest you try and get help from a solicitor, you can get a free 30 minutes with any solicitor, you may also get some form of legal aid due to your condition which means you won't have to pay anything. A solicitor would know how to stop this in its tracks and make the right application to do so.

this has gone so far in the system i now i don't think you could handle it on your own even with help from this site

THIS IS OF COURSE ONLY MY OPINION OTHERS MAY BE ABLE TO HELP YOU MORE THAN I CAN

I have looked into this, but sadly the amount of money they want is just out of my reach, i am working so i am not entitled to any aid with my salary. Just for a solicitor to begin its £500, and then another £500 to to try and set the judgement aside (that's if they can) now if i could do a payment plan its more than affordable but up front i just cant. Most want £1000 just to start, is there anyway that i can appeal the appeal? surely this isn't right, i do NOT owe this money, and because of fault not of my making (the address) i am being forced to pay £11k which i just do not owe. No one at the courts advise me to do all of this they just said fill out the form. Honestly i just don't think i can go through all of this my mental state is just shot, and the only way i see out is just to go.

have you looked into any legal aid help in respect of your illness ? maybe go to the CAB and explain things to them ? they are good at getting financial help for things ?

yes you can try and appeal the appeal but do you know how to correctly do it having had it thrown out twice ? would take weeks to learn just posting on here and then it may not work.

do you have a mental health therapist ? they can also help with this sort of thing ?

i really dont know what else you can do other than try and appeal against the original decision if you are positive you do not owe this money and can prove it then you have a chance.

Sorry to hear about your PTSD and troubles buddy, but you really are in good hands here in terms of the great folk trying to help you. Stand firm. Clearly you’ve faced much bigger challenges (and legitimate threats) in life. This is all paperwork that simply needs to be tackled appropriately, and from my experience, you have (kind) experts here.

waylander62 wrote:have you looked into any legal aid help in respect of your illness ? maybe go to the CAB and explain things to them ? they are good at getting financial help for things ?

yes you can try and appeal the appeal but do you know how to correctly do it having had it thrown out twice ? would take weeks to learn just posting on here and then it may not work.

do you have a mental health therapist ? they can also help with this sort of thing ?

i really dont know what else you can do other than try and appeal against the original decision if you are positive you do not owe this money and can prove it then you have a chance.

Ok so i use people per hour quite a lot for my work, i just put it out there that i needed to hire someone that could help, someone came through from Spectrum Law and after some digging around i have seen that they are pretty decent and not out to fleece people of their money when struggling. He asked for the orders and any document's that i had, i sent through the only order that i have and that was the rejection in June as i have received nothing prior (the initial N244 i submitted that was rejected in February this year). He also asked for my competed N244, he asked if i had out in the N244 out that i had no prior knowledge until i received the attachment of earnings, i told him i had not as i had never completed one before but i thought that i had said that in some way shape or form. He did say that that should definitely have been entered into my defence as the judge will have wondered how i new about the AOE if i had received no mail (yes my mistake but honestly im legally silly when it comes to this) anyway the short version is this, he has asked me to submit a SAR to both courts for all information that they hold, he then wants me to put the events in chronological order along with any documents received and a statement of events to back up the information given. He has told me to contact when i have this and send to him, he will then appeal the appeal, he will explain that it ahs been rather messy due to the conflicting information given via the courts, and the fact that there was never a first order sent out or if there was no one seems to have it, because had we known about it we would not have submitted a second. He has said that the courts have clearly made mistakes here, but in his words "you raise this and they simply say they are not legally trained" even though they should at least know the correct process and should never have allowed another N244 to be submitted. So maybe i wont be able to stop the order this month although i did contact my finance department and informed them of this below, i am thinking that it could be a pincer attack (sorry im a veteran ) and try and halt them if not completely stop them until i can be heard in a court, would this argument work, is this something that i have a valid argument for ?

I also want to say this, i was at a very low and dark place because of my PTSD from the military and i do not want the drugs they try and peddle to help as they don't help at all, and this was almost the final nail, but i have to say thank you so much for the help i have received, and i mean that, people have taken their time out to help someone that they do not know, there are still some decent people out there willing to help.

" Employment Rights Act 1996 Sec 13 (1) (b)

13 Right not to suffer unauthorised deductions.

(1)An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.
"

Good to hear you have found one to one help, Just a word of caution,
ensure you have any agreement with them in writing.
As you mentioned, all of your evidence that you can provide could and no doubt
will be critical,so spend time on it. I also think you should gather evidence of
your PTSD ,that should go a long way if all else fails.
Please keep us informed .

good to hear that you are getting somewhere, it is imperative that you get ALL of the information from the courts

also make notes of how the courts messed you about and times and dates if you can, any and or all information you can gather can only help.

daveiron wrote:Good to hear you have found one to one help, Just a word of caution,
ensure you have any agreement with them in writing.
As you mentioned, all of your evidence that you can provide could and no doubt
will be critical,so spend time on it. I also think you should gather evidence of
your PTSD ,that should go a long way if all else fails.
Please keep us informed .

Thank you and Waylander, you both have helped more than you know, sometimes even the slightest suggestion of something can change things more than you could imagine, and the suggestion of a solicitor just put the idea in to use PPH, usually i do not like to use solicitors as they are not what i stand for, knowledge should be free or a fair price which we all know it is not. I will make sure that i take the time to collate everything and make sure my defence is as good as it can be, of that i promise. I will speak my GP and the veterans agency as they are aware of my PTSD and the injuries i sustained , would this be separate from the legal paperwork? also would argument provided by yourself work to try and slow it down from their end ?

i would suggest you get as much information on your health condition as possible from qualified professionals in particular
times and dates etc. going back years.

not sure what you mean by slow it down from their end ? who's end are you referring to. ?

Ok so i contacted the courts and asked for a copy of the Feb2023 order(after i submitted an N244 for in Dec2022 and this is what it stated, i don't understand this as i made the application and i was waiting for anything from the courts so that i could defend in court. And the reason for rejection was that i didn't attend...…even though my N244 states why i didn't attend (the original court hearing) for the N244 claim i wasn't even aware i would need to attend anything, even the email i received from Huddersfield CC states "your claim has been made, you will receive a notification informing you of a date to appear in court" this whole thing has been completely mishandled by the courts service it really has, along with this and my temp driving ban (that i have posted about, and again because of the complexity of my address) the courts are not fit for purpose, they are meant to be fare and you as a human being are meant to have the right to a fair and proper trial and face your accuser, something i have not been afforded in either matter.

Dear Sir/Madam
Re: Case Number: G6QZ25Y7 Mr xxxxxxxxv Mr xxxx xxxx xxx
Thank you for your e-mail dated 22 June 2023 which was referred to District Judge Akers. Please
see below judges response.
( Please see copy of enclosed order dated 14.02.23. Judge Ellington dismissed the application
because the Defendant failed to attend)
If you wish to appeal the decison you can access further information on the government website
(see link) Appealing against a court decision in civil and family cases (EX340) - GOV.UK
(www.gov.uk) or seek independant legal advice.
Yours sincerely

then it would appear you need to appeal judge ellingtons order on the grounds that you were not notified of any hearing

they would have sent you directions for the hearing meaning: what you need to do and by when and the date of the hearing.

might help you if you ask for copy of the court directions for the hearing, in particular the full address details they used, could hold evidence that they got your address wrong.

waylander62 wrote:then it would appear you need to appeal  judge ellingtons order on the grounds that you were not notified of any hearing

they would have sent you directions for the hearing meaning: what you need to do and by when and the date of the hearing.

might help you if you ask for copy of the court directions for the hearing, in particular the full address details they used, could hold evidence that they got your address wrong.

I am sorry for all the questions i really am, you must be getting annoyed, Judge Ellington dismissed my claim in Feb of 2023, in my N244 it states quite clearly that i knew nothing of this because i had received no paperwork, and told him of the complications with my address, yet the judge rejects because i "didn't attend" i know this...…and the reason why i didn't was the basis of my N244...…well along with other relevant entries. Did this judge even read anything in the N244 and just dismiss it because i had maybe not followed correct procedure in its entirety with evidence attached? I am sorry but his reason has really confused me, had my N244 been read fully then he would know that A) I didn't attend and B ) Why as i outline why.

i cannot speak for a Judges reasoning, all i can do is 'guess' what has happened

each of your posts gives just a little bit of information which we are, i am certainly, trying to piece together.

from what i can gather is that you made an application at the beginning of the year, the court then called a hearing for you to be heard at that hearing, giving you the opportunity to explain to the Judge, in court.

you would have been sent, by the court , directions for the hearing. now from what i can gather you did not receive those directions so did not even know about the hearing and therefore did not show up.

The Judge dismissed your application on the grounds of not bothering to show up ( in his head thats what he thinks and sees an empty court room ) so he dismisses the application on those grounds.

depending on what you then said in your second application the Judge didn't see any reason for changing his decision.

soo.... in my opinion we need to clarify this and go back to the original application made and if you say you didnt get any of the paperwork ( i dont disbelieve you ) we need to find out WHY ?

so ask the court for a copy of the directions for the first hearing including the address to which they were sent there you might find your greatest argument for continuing on...

i cannot think of any better way to explain my 'guess' on this.

You (M. Walker) are very fortunate that you have someone very intelligent (and patient) supporting you, in the form of Waylander62. He has helped me and educated me no end

Ok so im stuck at the moment, i have submitted a SAR to the courts and should have had that back on 24..07.23, i have since sent two gentle reminders and they have ignored me, i have also submitted a complaint to the ICO. I need this information so i can proceed with my N244 but cant, what do i do now please anyone? I've paid £500 so far as part of the attachment of earnings and i just can not afford it, i shouldn't be paying this as its a complete lie and its making my PTSD and my general health turn for the worst.

i am not really sure what else you can do, have you tried ringing the court and asking for a copy of the paperwork ?

you should be able to obtain this with a simple phone call. I know you have submitted a DSAR to the court but have you had any form of reply to this ? at all ? any acknowledgment of receipt of the DSAR ?

have you telephoned the Court and asked them about your DSAR ?

below is something i have had filed for years i will try and copy and paste it, maybe it is something you could use ? i have never done this myself but have never not been able to get a copy of the paperwork.

it may be too complicated for you to understand but i have nothing much more i can offer, it has been over a month since you last posted about this

04/06/2013
Equitability
The interesting and important nature of a ‘void’ order of a Court is not fully understood and appreciated in England and this article is written to assist the understanding of a ‘void’ order and to assist legal professionals in any concerns they may have in submitting to a Court that its order is void, if indeed it is void.
In Anlaby v. Praetorius (1888) 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that:
“A plaintiff has no right to obtain any judgement at all”.
A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.
In Fry v. Moore (1889), 23 Q.B.D. 395 Lindley, L.J. said of void and irregular proceedings that it may be difficult to draw the exact line between nullity and irregularity. If a procedure is irregular it can be waived by the defendant but if it is null it cannot be waived and all that is done afterwards is void; in general, one can easily see on which side of the line the particular case falls.
A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).
A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]).
In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.
It is important to note therefore that in the case of orders of Courts with unlimited jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is expressly shown to be so. In the case of orders of the Courts of unlimited jurisdiction where the jurisdiction is not expressly shown to be limited, the orders are either irregular or regular. If irregular, it can be set aside by the Court that made it upon application to that Court and a person affected by the irregular order has a right –ex debito justitiae – to have it set aside. If it is regular, it can only be set aside by an appellate Court upon appeal if there is one to which an appeal lies (Lord Diplock in Isaacs v Robertson (1984) 43 W.I.R. PC at 128-130). However, where the Court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the Court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply.
Similarly, if the higher Court’s order is founded on a lower Court’s void act or invalid claim then the higher Court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER).
The main differences between a ‘void’ and ‘voidable’ order or claim is that:
(i) a ‘void’ order or claim has no legal effect ab initio (from the beginning/outset) and therefore does not need to be appealed, although for convenience it may sometimes be necessary to have it set aside (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] and Firman v Ellis [1978]) whereas a ‘voidable’ order or claim has legal effect unless and until it is set aside. Therefore, while a void order or claim does not have to be obeyed and can be ignored and its nullity can be relied on as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461), a voidable order or claim has to be obeyed and cannot be ignored unless and until it is set aside; and
(ii) a ‘void’ order can be set aside by the Court which made the order because the Court has inherent jurisdiction to set aside its own void order (Lord Greene in Craig v Kanssen [1943]) whereas a ‘voidable’ order can only be set aside by appeal to an appellate Court.
A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the Court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]).
The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.
Although an appeal is not necessary to set aside a void order, if permission to appeal is requested and if out of time the Court should grant permission because time does not run because the order is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v Kanssen [1943].
A void order is incurably void and all proceedings based on the invalid claim or void act are also void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing (Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
A void order is void even if it results in a failure of natural justice or injustice to an innocent third party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601).
It is never too late to raise the issue of nullity and a person can ignore the void order or claim and raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
In R v. Clarke and McDaid [2008] UKHL8 the House of Lords confirmed that there is no valid trial if the bill/Indictment has not been signed by an appropriate officer of the Court because Parliament intended that the Indictment be signed by a proper officer of the Court.
In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it.
It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’; and in the case of a criminal trial if there has been a fundamental technical defect the Court can order a new trial (venire de novo – may you cause to come anew).
Chronology of some case laws relating to void orders:
1888:
In Anlaby v. Praetorius (1888) Fry L.J. stated on the issue of void proceedings that:
(i) a plaintiff has no right to obtain any judgement at all.
1889:
In Fry v. Moore (1889) Lindley, L.J. said that:
(i) it might be difficult to draw the exact line between nullity and irregularity. If an order is irregular it can be waived by the defendant but if it is null then it renders all that is done afterwards void. In general one can easily see on which side of the line the particular case falls.
1921:
Crane v Director of Public Prosecutions [1921]:
(i) if an order is void ab initio (from the beginning) then there is no real order of the Court.
1943:
In Craig v Kanssen [1943] Lord Greene confirmed that:
(i) an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside;
(ii) so far as procedure is concerned the Court in its ‘inherent jurisdiction’ can set aside its own order and an appeal from the order is not necessary; and
(iii) if permission to appeal is requested and if out of time the Court should grant permission because time does not run because the point is that the order is invalid and the person affected by it has the right to have it set aside.
1953:
In Wiseman v Wiseman [1953] 1 All ER 601 – Lord Denning confirmed that:
(i) The issue of natural justice does not arise in a void order because it is void whether it causes a failure of natural justice or not;
(ii) a claimant or defendant should not be allowed to abuse the process of Court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act is void even if it affects the rights of an innocent third party.
1961:
In MacFoy v United Africa Co Ltd. [1961] Lord Denning confirmed that:
(i) a void order is automatically void without more ado;
(ii) a void order does not have to be set aside by a Court to render it void although for convenience it may sometimes be necessary to have the Court set the void order aside;
(iii) a void order is incurably void and all proceedings based on the void order/invalid claim are also void.
1963:
In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that:
(i) a fundamental defect in proceedings will make the whole proceedings a nullity;
(ii) a nullity cannot be waived;
(iii) it is never too late to raise the issue of nullity; and
(iv) a person affected by a void order has the right – ex debito justitiae – to have it set aside.
1978:
In Firman v Ellis [1978] Lord Denning confirmed that:
(i) a void act is void ab initio
1979:
Lord Denning, in his book ‘The Discipline of Law’ – Butterworths 1979 – page 77, states:
(i) although a void order has no legal effect from the outset it may sometimes be necessary to have it set aside because as Lord Radcliffe once said: “It bears no brand of invalidity on its forehead”.
1985:
Wandsworth London Borough Council v. Winder [1985] A.C. 461:
(i) a person may ignore a void claim and rely on it as a defence when necessary.
2003:
In Bellinger v Bellinger [2003] the House of Lords confirmed that:
(i) a void act is void from the outset; and
(ii) no Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem because doing so would mean reforming the laws which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform it.
Conclusion based on the case laws referred to above:
(i) an application to have a void order set aside can be made to the Court which made the void order;
(ii) the setting aside must be done under the Court’s inherent power to set aside its own void order;
(iii) the Court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside;
(iv) an appeal is not necessary because the order is already void;
(v) if permission to appeal is sought and if sought out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity; and the person affected by the void order has a right to have it set aside;
(vi) a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed;
(vii) the whole proceedings is void if it was based on a void act;
(viii) a void order does not have to be obeyed because it has no legal effect from the beginning;
(ix) as it is never too late to raise the issue of nullity a person can ignore the void order and rely on nullity as a defence when necessary;
(x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party;
(xi) an order of a Court of unlimited jurisdiction is only void if it can be expressly be shown that the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or void act;
(xii) no Court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the Court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament.
Shirley Lewald, – 10 July 2010
Updated: 6 February 2011