Some Court rules make a nonsense of fighting the good fight.
And don’t insurance companies know it. Never will they back down, or concede, or acknowledge their own systemic failings.
If the Court rules work for them, they’ll use them. It’s all part of the commercial world, isn’t it? The commercial world, that is, where minions on State Benefits (if they can get over the intrusive, unsympathetic, demanding, system that bolts all the doors to keep people out) take handouts from their local church to have enough food to feed their families.
If you’re not a lawyer, you might want to miss out some of what follows, because I’m going to have to go into the nitty gritty of the Civil Procedure Rules – which, frankly, squeeze the life out of most sentient humans. But there it is. I’m a lawyer, so here’s the story.
CPRD 12.1 describes a default judgement in these terms: “A default judgement is judgement without trial were a defendant has failed to file either – (a) an acknowledgement of service, or (2) a defence.”
CPR 12.5(3) explains that: “Where the claim is for an unspecified amount of money a default judgement obtained on the filing of a request will be for an amount to be decided by the court and costs.”
You might be forgiven for thinking that’s that then. Judgement obtained. You’re now 90% home and dry.
Wrong.
Wrong in so many ways.
When you’re a litigation lawyer, you might imagine that, because since the case of Mitchell Judges have done their damndest to make lawyers howl in pain because of the word ‘sanction’, you might expect that there would be some coherent integration between the workings of various parts of the CPR.
Wrong.
The heinous, procedurally overcomplicated process of seeking relief from sanction which applies only when a party has breached an order made by a Judge, represents a whole book of satellite litigation that doesn’t even touch the systemic incompetence associated with permitting a default judgement to be entered against you.
Let me put it simply.
If you as a Defendant are so incompetent as to allow a default judgement to be entered against you, thereby removing your entitlement to defend, none of the oppressive consequences of a breach of a court order apply to you. You can continue as if nothing has happened, get your own expert evidence, use video surveillance to catch out your opponent, argue everything you want to fight the case (other than liability).
Hence, it is as if the default judgement means less than nothing.
To illustrate this absurdity, consider this. Accident at work on a car-making production line. Liability disputed. Then admitted. Then silence.
Getting more and more frustrated, with my client living on handouts from his church, needing money, that is, needing an interim payment, I write, call, email, the car manufactures insurance company. Silence. I do it all again. Silence. Again. For months.
Finally, I issue proceedings, send copies to the insurance company, telephone to ask them if their insured has been served by the court. Because I want them to help! Pathetic. Why would I do that? I even ask them if they are intending to put in a Defence. They tell me they still work with paper files, they will make sure the handler (who hasn’t changed, despite lies told later) will get back to me. Silence.
Enough. I enter default judgement. I send them the default judgement. I call them and say, really? Really really really? Are you going to deal with this case? They say that the file handler is “walking” the file over to the solicitors. Yes, “walking”. Not a metaphor. A description of a physical act.
The solicitors serve a so-called Defence as to quantum. I say that’s irrelevant.You’re insurers burned their boats. Swing. They ignore me. They tell me I’m wrong. They don’t apply to set the Judgement aside. They don’t say we’re sorry we really did behave badly, didn’t we, now we’ll do everything we can to put it right.
I ask: is it not an abuse to do by the back door what you know you can’t do by the front, namely, argue everything you would have argued if you’re insurer clients had not wilfully and repeatedly ignored my attempts to get them to do the job properly.
They say nothing. There is no authority. There is nothing that supports my position.
Judgement means zilch.
What then is value of default judgement? Less than nothing. Even with months and months of incompetence, followed by lies about the reason for the incompetence, there is no remedy.
Whereas, if my client steps on the wrong paving stone, the Defendant will argue he’s been playing hopscotch, his injury at work was trifling, nothing for which he should be paid more than a fiver, or perhaps, better still, since he’s stood on the wrong paving stone, he’s fundamentally dishonest.
Something is rotten in the state of Denmark.