Setting aside default judgment - Vinos v Marks & Spencer & CPR 7.5

A_Geordie

Hi, 

This is a post likely aimed at the regulars of the forum but I was asked by a friend to look over their application to set aside a default judgment and I noticed the reference to the M&S case in their skeleton argument in relation to striking out/dismissing the claim for not being served within the 4 month period under CPR 7.5. When I asked them where they got this from they told me that they found it from looking at this forum. 

I just wanted to say that that line of argument is misconceived. CPR 7.5 relates to service where the claimant rather than the court, is serving the claim form and that it must be served within 4 months from the date the court has issued the claim form to the claimant. Claims issued by the CCBC under via the Money Claim Online process are issued and served by the court, not the claimant. 

Another point I would make is, CPR 7.5 is concerned with whether the claim form has actually been served, not whether it was served to the correct address which is a separate issue and of course is a good ground to set aside a default judgment. Paragraph 5.5 of Practice Direction 7C (Money Claim Online) says that: 

When the court issues a claim form, it will –

(1) serve a printed version of the claim form on the defendant; and

(2) send the claimant notice of issue.

Paragraph 5.7 of PD 7C then goes on to say: 

The claim form will be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not. ‘Business day’ has the same meaning as in rule 6.2(b).

Both paragraphs above make it pretty clear that the court will serve the claim form on the defendant and it will be deemed served 5 days after the date of issue. Trying to argue that the claim form was never served within the 4 month period of the date of issue or it was never served at all is just a bit of a nonsense because it's not the claimant's job to serve the claim form under the Money Claim Online rules. All one has to do is confirm with the court whether there is a record on the system that the claim form was issued and if it was, absent any other evidence it will be deemed served, defeating any suggestion that it was not served within time or served at all. Even if, let's say the court fails to serve the claim form on the defendant, rule 7.5 is only concerned with the Claimant's failure to serve within the relevant period, not the court and I don't believe there is any sanction or penalty where the court fails to do so, I'm just assuming that time to acknowledge/defend doesn't start to run until it has been issued and served on the defendant and would be up to the claimant to chase. 

Just thought I would flag this up because I think at some stage or another, anyone with common sense will very quickly be able to see that what is being argued is a non-starter. Whether you guys decide to continue pushing this argument is entirely up to you but I thought it would be sensible to make you aware.

Coupon-mad

@Johnersh is a solicitor poster and he will be interested in your view, which doesn't match his.

We have seen several cases won with the '4 months dead' argument - i.e. entire claim dismissed as well as CCJ set aside and £275 ordered to be paid back to the victim, by the parking firm.

We see pretty much EVERY CCJ set aside here and no-one pays the claimed amount.  Assuming you are a solicitor(?) if your firm deals with these cases do you have such success as we do? 

Interested to know.

And our exhibits are not just Vinos. We use 4 case authorities to support the argument, as seen in this thread:
https://forums.moneysavingexpert.com/discussion/6351901/getting-ccj-set-aside-for-parking-ticket-even-if-ai-didnt-let-dvla-know/p1

That's another example of where the argument worked.  Firstly the Judge thought as you did but during the hearing, he was convinced by the skeleton argument and 4 authorities linked there, that the claim was indeed dead.

A_Geordie

Hi Coupon-mad

Yes I am a solicitor, no I am not in private practice anymore, just in-house now. I am not a litigation lawyer by trade but I've dealt with and worked on enough to know my way around most of the usual CPR provisions so I would like to think I have a decent understanding. 

I understand that these arguments may have worked but we are just talking about County Court judges and I'm guessing most of the time these arguments are not opposed by the other side. I think I did see some other cases referred to although I haven't had a chance to read them in full the impression I get is that they all have one thing in common, which is that service of the claim form was left with the claimant and not the court. If the argument works then great but I just think eventually, someone is going to push back and then when you peel the first layer and delve into the rules, you will find that the argument fails completely.

To give some further context, rule 7.5 needs to be read in conjunction with Part 6 and in particular, rule 6.4 which creates the presumption that the court will serve the claim form unless the claimant informs the court that it wishes to serve the form or if there is some rule that says the claimant must serve rather than the court. In both cases, where service must be effected by the claimant, the court would issue the claim form to the claimant which starts the clock running for the 4 month period in order for the claimant to then serve it on the defendant. 

At a basic level, if all claims under the Money Claim Online process are issued and posted by the court, it would be physically impossible for a claimant to comply with rule 7.5 at any stage of proceedings. That to me means one of two possibilities: either there is an error in rule 7.5 and its drafting or the rule was only ever intended to apply where the obligation is on the claimant to serve the claim form - my money is on the latter based on rule 6.4 and other parts of the CPR.

I'm also curious to understand, if the rules that I referred to in my last post are clear that once the form is posted by the court it is deemed served on X date, how can you then argue that it was never served?

I will round off tonight by saying, if this argument had any legs at all, why can't I find any reported cases on this? There are hundreds and hundreds of cases where the claim has been served to the wrong address and default judgment entered but I am yet to see any binding authority where the court has accepted that a claim form served at the wrong address within 4 months of the claim form being issued and subsequently default judgment was obtained, meant that the claimant failed to meet the requirements of rule 7.5. If this were a thing, everyone would be using it as an easy way to get rid of a claim. 

Grizebeck

@A_Geordie interesting as you point regarding service makes sense.
Looking at https://www.civillitigationbrief.com/?s=late+service&submit=Search (which i find a most useful site), appeals on the issue of late service all revolve around "personal" service of the claim so to speak 

Johnersh

@A_Geordie
Isn't this just about forumites needing to take care? The cpr is a complex set of rules and people need to make sure they understand what is being said. What's good for the goose may not be for the gander. 

I last referred to Vinos in a case where the claim was served, the PoC struck and then C had an obligation to file and serve manually or the claim was struck. The scenario was analogous in terms of applying with a rule or order. That scenario engages all the usual rules regarding service and time limits since it is a claim with particulars served separately. It is a different scenario to MCOL issue/service where all steps have been followed correctly. 

I would absolutely agree that the CPR is all that one needs for claim forms that include PoC on the face of them served via the portal. Those are indeed served.

However, if (as in some cases) the wrong address was provided to the court, it is fair and reasonable to expect a set aside. One cannot simply serve on any old address and assume the protections of a last known address will apply. 

If a judgment is later set aside on the basis that the claim form was not served on the correct address (as is relatively common), then it has never been correctly  served. Since the provisions of the MCOL PD supplement (not supercede) CPR 7 it follows, in my view, that there is an issued claim which is now unserved, which can expire.

I see the basis on which you make the argument. C may well raise the same points. I am happy to agree to disagree. We both know law involves interpretation: I simply fail to see why you say a claim form sent to an incorrect address via an online portal should enjoy greater protection than a claim form sent to an incorrect address by a solicitor. I don't think most DJs would accept that either. 

I would agree with you in relation to other reasons for set aside: if the claim form went to the correct address but D was on a 1 month cruise, s/he might get judgment set aside so as to respond, but there would be no basis for arguing failed service. 

In any case, it is no panacea. C can usually just issue a fresh claim form for the £35 or so that it costs them. My view is that they should be made to do that, where they have fallen into error. 

In relation to reported cases, that's simple isn't it? There is rarely sufficient interest in a parking case for transcripts to be obtained (disproportionate to the sums in dispute) or for the person from lawtel to toddle down to court. I've done hundreds of hearings that have never been reported. I don't pretend that most of them are remotely novel!

Galloglass

he cpr is a complex set of rules and people need to make sure they understand what is being said. What's good for the goose may not be for the gander. 

As stated by Lord Sumption - "the rules on service were deemed to be "sufficiently accessible and clear".



https://www.clydeco.com/en/insights/2018/02/civil-procedure-barton-v-wright-hassall-llp-suprem

bargepole

I agree with the original post.

If it can be shown that the claim form was served to an incorrect address by the CCBC, then it becomes a mandatory set aside pursuant to CPR 13.2. 

I've dealt with many of these for clients, and the usual procedure is that the Judge will automatically set aside Judgment, and order the C to file and serve a correctly addressed claim form within 14 days, and the D to file and serve a fully pleaded Defence 14 days after that.

Whether the £275 application fee for the N244 can be recovered is a bit of a grey area, some DJs will order the C to refund that straight away, while others will say costs reserved until final hearing.

A_Geordie

Hi Jonersh, 

First of all, I agree that care should be taken and indeed the rules are very complex where there is numerous cross-referencing needed in order to understand the requirements.

Respectfully though, I am just not convinced that what you are saying is correct. We can agree to disagree I am fine with that, it's all part of the debate and eventually (or maybe never) one of us is going to be wrong if this sort of argument moves up the chain on appeal.

However, if (as in some cases) the wrong address was provided to the court, it is fair and reasonable to expect a set aside. One cannot simply serve on any old address and assume the protections of a last known address will apply. 

I agree with this point, but that is more to do with whether the default judgment was regular or irregular rather than whether or not the claim form has been served for the purposes of rule 7.5. 

If a judgment is later set aside on the basis that the claim form was not served on the correct address (as is relatively common), then it has never been correctly  served. Since the provisions of the MCOL PD supplement (not supercede) CPR 7 it follows, in my view, that there is an issued claim which is now unserved, which can expire.

I can see your argument, but as I read rule 7.5, it is concerned with the question of whether the claim form has been served within 4 months using one of the approved methods, not whether it was served within 4 months and at the defendant's correct address. That would effectively imply an additional condition that was never written into the rule. There is also the added issue that it explicitly calls out the claimant and not the court so it comes back to my earlier point that, either the draftsperson made an error when writing the rule or it was only intended to apply to personal service by the claimant.

Setting aside a default judgment due to invalid service of the claim form or otherwise does not in my opinion extend to saying that the claim form was never served at all. It was served and it can usually be proven, just not at the correct address and because of that reason, the relevant time for acknowledging or filing a defence never expired so the request for judgment was irregular, so quite rightly the judgment should be set aside as of right under rule 13.2.

Setting aside a default judgment including service of the claim form would be akin to strike out/dismissal of the claim entirely but it is common in those kinds of situations that if a court strikes out a claim, it would follow as part of that same order for the claimant to file and re-serve the claim form and/or particulars of claim within a period of time. In that scenario, I would view the court as granting an extension of time for the purposes of rule 7.5 under rule 7.6(3)(a) certainly in respect of a claim issued under the Money Claim Online rules. 

I'm sorry I am trying not to go into great detail on the rules as I just wanted to highlight the potential issue of making this argument, though I am more than happy to discuss separately if anyone is interested.

Johnersh

Setting aside a default judgment due to invalid service of the claim form or otherwise does not in my opinion extend to saying that the claim form was never served at all. It was served and it can usually be proven, just not at the correct address

If C fails to make any or any adequate checks, then they have failed to comply with any of their obligations under 6.9(3) or 6.9(4), so the mere fact of court dispatch can't very well amount to good service. 

I agree that in general terms a claim form doesn't have to arrive and can still be valid (dispatch before midnight) but you can only rely on deemed service if you are in fact serving to the correct recipient. 

So all of this may come down to a finding as to whether there is mere non receipt or a claimant failure. 

I don't disagree that 7.5. was drafted around the claimant service provisions and can be read exactly as is suggested to me, but in 1998 MCOL didn't exist. To that extent absolutely parts of the cpr are poorly drafted. 

Put at its simplest, I take the view that if the claim form isn't properly served it's gone. C has 6 years to bring a claim, they can just reissue if still within time. Lots of authorities for that and the general proposition that claims should be served well within time, that allow such fallback provisions to be adopted. 

Johnersh

As stated by Lord Sumption - "the rules on service were deemed to be "sufficiently accessible and clear".

Ha! There is a graveyard of case law that suggests otherwise. 

A_Geordie

I suppose we could harp on all day about this and restate the arguments in different ways so I will leave it there and accept that we have to disagree with each other's points. I'm sure there are already authorities out there on this point or something in the White Book that helps to clarify but as you say, it is a novel argument and it's also Christmas so I'm in wind down mode and can't be bothered to go beyond this discussion. 

Just a comment on your other point, I don't think the claimant could simply file a new claim though if the court has struck out/dismissed the original claim for failing to comply with rule 7.5, because they would be re-litigating the same cause of action and of course that's a no go under the res judicata doctrine. 

Anyway, I've got out what I needed to say, an interesting debate and to those who wish to use this line of argument, I wish them luck.