Did Dilyn the dog eat the writ?
14 May 2021
We recently learned judgment was entered against Boris Johnson for “an unpaid bill of £535”. The details were not particularly clear. Reports suggested Boris would apply to strike it out, seeking “a declaration that it is without merit” and it now seems he has succeeded.
Judgment appeared to have been entered in default, meaning Boris failed to file a defence within the requisite 14 day period.
If a defendant overlooks a claim, the claimant is entitled to apply for judgment. This is a simple process. For money claims it involves little more than ticking a box and filing the form at the court. A judgment is later issued without the matter coming before a Judge at all.
So where did this leave Boris (and others who might find themselves in this situation)?
Irregular or regular?
The starting point is to assess the claim and procedural steps that have been taken.
If the judgment was entered “irregularly” (e.g. debt already paid, claim papers not served properly, judgment entered prematurely) Boris was able to apply for it to be set aside as of right under CPR 13.2.
Things would have been more involved if Boris simply dropped the ball, and judgment was entered “regularly.” Boris’ application was then be at the discretion of the court (not as of right). The burden was on him to show (1) he has a real prospect of successfully defending the claim on its merits or (2) there is some other good reason why judgment should be set aside. In exercising its discretion, the court would have taken account of how quickly Boris made his application and consider the nature of the defence, any prejudice the claimant is likely to suffer if the judgment is set aside, as well as the overriding objective which requires the court to deal with cases justly and at proportionate cost.
The dog ate my claim form…
What if Dilyn ate the claim papers and Boris never saw them?
Judgment would have been entered regularly nonetheless and Boris reliant on the discretion of the court. There are obvious evidential issues with this position but if he established he never saw the claim (and his defence met the merits threshold above), he would have enjoyed some sympathy from the court.
I live next door…
What of the fact that Boris lives in the larger (freshly appointed) apartment above No. 11 Downing Street, not No. 10?
Even if the claim was served at No. 10, this is unlikely to have helped: CPR 6.8(a) provides “the defendant may be served with the Claim Form at an address at which [he] resides or carries on business within the UK …” (emphasis added).
Thus, it was permissible to serve Boris either at No. 11 (where he resides) or No. 10 (where – it may be said – he carries on business).
Say my name…
Boris’s full name is of course Alexander Boris de Pfeffel Johnson. If the claim was prepared in the name of “Boris Johnson”, was the judgment vulnerable on the basis it was brought in a wrong or incomplete name?
Para 2.6 of PD16 provides that, “the claim form must be headed with the title of the proceedings, including the full name of each party. The full name means, in each case where it is known… in the case of an individual, his full unabbreviated name and title by which he is known.”
However, this argument would have been unlikely to gain much traction. Boris would be sufficiently identified and the court would have had the power to vary the judgment to correct the position.
Get set aside application done
So true to his word, Boris did indeed file his application to set aside the judgment. Indications are that he got things done, with the claim struck out.
This was on the basis that it disclosed no reasonable grounds for bringing the claim and/or was an abuse of process (CPR 3.4(2)). From reports it appears that the court determined the claim to be “totally without merit”, something it must record in its judgment and then decide whether the claimant should be subject to a civil restraint order (CPR 3.4(6)).
For those of us continuing to work remotely, this story is a salutary reminder to maintain robust processes to monitor post and papers being served.
Where a debt has been overlooked and the claim is accepted, a defendant’s best approach is to pay the judgment sum promptly. Interest runs at 8% under the Judgments Act in the meantime. If the debt is paid within 1 month of the judgment, it is possible to apply for a certificate of cancellation. This means the judgment will not feature in the register of judgments and may help to preserve a credit rating. After 1 month it is only possible to apply for a certificate of satisfaction - the judgment will still feature on the register for the next 6 years but will be marked satisfied.