That was the County Court Judgment that was – and why everyone is entitled to a civil justice system that works at the speed it worked for Boris Johnson

13th May 2021

This time yesterday Boris Johnson had a County Court Judgment (CCJ) against him that had been entered back in October 2020.

Like anyone with a contested CCJ he faced the irksome process of applying to the court to set the judgment aside and, if the claim was ill-made, striking out the claim.

The application process can take weeks or months for normal defendants in this predicament – and Johnson faced having to also explain his delay in contesting the case.

And now: it is reported that the CCJ is no more.

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That is extraordinarily fast for the civil justice system.

It would seem that it may be that an application was not even needed – and the courts set aside the claim and struck out the claim by their own motion.

The claimant has wrongly made, it seems, a defamation claim in the wrong court and in the wrong manner.

As such, the court can act without reference to the parties and end the claim there and then.

But.

For the rest of us the civil justice system is nowhere near as prompt.

Claimants and defendants can wait years for a hearing date.

Those with wrongful CCJs can suffer for months until the court gets round to hearing an application for the CCJ to be set aside.

There is nothing wrong whatsoever with the courts acting so swiftly to set aside the CCJ entered against Johnson.

What is wrong is that the rest of us do not get the benefit of civil justice at this same commendable speed.

 

The County Court Judgment against Boris Johnson – an explainer

12th May 2021

[This post now has an Addendum]

Today’s Private Eye revealed that there is a county court judgment (CCJ) against Boris Johnson.

What can be worked out from this information?

First, it appears that it is a judgment against Johnson as a private individual, as the legal claim was not made against him as prime minister – we know this as this claim process cannot be used against central government entities.

Also note that it does not matter that Johnson’s full name is not used, and that the address is ‘Number 10’ when in fact he lives at Number 11, if those were the details provided by Johnson to the claimant.

Second, the legal claim was made online – we know this because of the court name and because of the ‘MC’ used in the case reference number.

Third, it appears to be a debt claim – as the claim appears to have been for a specified amount.

[UPDATE – this third observation seems not correct – see Addendum below.]

Fourth, it appears that the CCJ is a so-called ‘default judgment’ – this is a judgment that are entered against defendants if they either do not acknowledge the claim or do not defend the claim in time.

That it is a default judgment is suggested by the claim not having been allocated to an actual county court.

On the assumption that the CCJ is for a default judgment, then there are two likely explanations.

The first explanation is that the claim was not properly or validly served – that Johnson had no idea that there was a claim against him.

The second explanation is that the claim was properly and validly served but that, for some reason, the claim was not dealt with properly.

A default judgment is not directly about the merits of a claim – it is a procedural device which has the effect of making defendants take a claim seriously.

If a claim comes in and is, say, ignored then a default judgment will be entered.

Given the sheer amount of correspondence that is received in Downing Street, it is perhaps understandable that occasionally items are missed.

That said, for an October 2020 CCJ to be revealed in May 2021 indicates that:

(a) any final demand or letter before claim was missed/ignored;  

(b) the claim form was either not served or was missed/ignored; and

(c) a copy of the CCJ was missed/ignored.

What a default judgment does not necessarily indicate is that there were insufficient funds – for a CCJ can still be headed off even when a claim form is served as long as the defendant reacts promptly.

Therefore what the CCJ speaks to is not Johnson’s impecunity (at least not directly) but to Johnson’s disorganisation.

Somehow, someway it appears that Johnson (or his office) missed or did not respond to a final demand/letter before claim, a claim form and (most strikingly) the actual judgment and court order.

*

So what can Johnson do now?

He can seek to apply to the court to have the CCJ set aside.

But here he may face problems.

He can have the judgment set aside as of right if he did not actually receive the claim form.

But if the claim form was validly served then (in general terms), he can only have the judgment set aside at the discretion of a judge.

For a judge to exercise this discretion in Johnson’s favour he has (again in general terms) to show two things.

First, he would need to show that there was a defence to the claim – that he did not actually owe the money.

Second, he would also need to show that he had acted promptly – and here the calendar is against him.

Waiting until May to apply to have an October judgment set aside will not be an easy thing to explain to a judge – and one can imagine many judges being unimpressed by the delay, regardless of the merits.

*

Downing Street has now provided a statement.

From this statement it can be inferred that the claim was indeed validly served – else that would be the basis for the application and not the basis given.

Instead, the statement uses standard wording which goes to the exercise of a judge’s discretion.

(One suspects that the wording of the Number 10 statement was provided by a lawyer.)

Perhaps the claim was a prank – though it can be a quite serious and potentially criminal matter to issue a false legal claim.

There seems to be off-the-record briefing to political reporters saying that the claim was not ‘genuine’ – but even if this is the case, there was still a claim form and a CCJ missed by Downing Street and/or Johnson.

The fact that the claim may not have been well-made does not take away from the evident disorganisation which meant that a claim was served on and a CCJ received by Johnson and nothing appears to have been done about it.

*

It cannot be assumed that a court will set a CCJ aside even if the claim is not ‘genuine’, if there has been too much delay.

Courts are increasingly unwilling to give any relief from sanctions in civil cases – and a default judgment is a sanction for non-compliance. 

And there is, of course, a recent example of a civil court being unimpressed with a (former) government minister who did not comply with the civil procedure rules: Andrew Mitchell v News Group Newspapers Ltd.

In that case, Mitchell’s legal team did not get around to serving a costs budget in time – a delay which cost Mitchell about £500,000 – some thousand times more than this CCJ.

A court may be similarly unwilling to give Johnson a relief from this sanction.

*

MORAL

Always, always deal with legal correspondence quickly – for if this can happen to the prime minister, it can happen to you.

**

ADDENDUM – 13th May 2021

A report in the Daily Mail now provides detail on the claim – the piece is written by an experienced legal/courts reporter.

It appears that the claim is not for a debt – even though it is for a specific amount.

If the claim was brought on the basis and in the way described, it is likely that the court will set aside the judgment and strike out the claim.

The only problem would be delay – and although anyone who has appeared before county court judges can imagine a judge refusing such an application – delay will probably not be fatal to Johnson’s application in the reported circumstances.

 

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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How proper funding and resourcing means fewer miscarriages of justice

25th April 2021

After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.

And often the miscarriage comes down to the evidence before the court.

In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.

The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.

(See my Horizon posts here and here.)

*

In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.

And so the scales tip to one side.

To dislodge such (on the face of it) compelling evidence is a difficult task.

To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.

To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.

To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.

And the main safeguard, of course, is (or should be) the forensic process itself.

Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.

There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.

*

But.

Disclosure exercises are sometimes not easy – or cheap.

A properly resourced prosecution authority is not cheap.

Proper case preparation is not cheap.

And skilled in-court lawyering and cross-examination is not easy – or cheap.

For justice to be served, however, requires all of this is done well – which requires funding and other resources.

Else the court will be prone to placing the wrong weight on evidence before it.

Or as techies put it: Garbage In, Garbage Out.

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Further thoughts on the Post Office Horizon case

24th April 2021

Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.

(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)

The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.

The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.

It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.

Paragraph 929 is a judicial classic.

The judge is a credit to the judiciary.

*

But.

That civil judgment is from late 2019.

The criminal convictions were quashed yesterday.

And the wrongful convictions date back to 2003.

This means there has been a wait of, in some case, nearly twenty years for justice.

However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.

Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.

Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.

But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.

And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.

*

One or two people have complained about the the legal fees in this case.

It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.

To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.

That the lawyers who did this successfully were remunerated should not be controversial.

And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.

Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.

*

There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.

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The Post Office case is damning, but do not blame ‘computer error’ – it is very much the fault of human error of Post Office managers

23rd April 2021

There are few, if any, criminal appeal judgments as damning as today’s appeal judgment on the post office cases.

This is an appeal judgment that will (or should) sound through the generations, as a detailed description of how the criminal justice system can go wrong.

*

But.

It would be an error to dismiss it as just a grand example of ‘the computer says no’.

Computers, like any automatic processes, will be prone to faults.

The problem was not so much the Horizon software but a sequence of horrible, deliberate decisions made by human beings – about whether to bring prosecutions, to contest civil cases, and to avoid the disclosure of relevant documents.

Every single manager involved in these prosecutions and in opposing appeals are far more culpable than any of the poor defendants.

Yet, unlike the defendants, the Post Office managers are not (generally) named in this judgment: they have their gongs and their pensions and their self-serving supposed exculpations of ‘lessons learned’.

So damning is this judgment that, no doubt, every person reading it will have a view on which of their legal and political opinions will be affirmed by the judgment.

For this blog, the damning Post Office judgment affirms that private prosecutions are generally a bad thing – whether they are brought by the Post Office or anyone else.

Some organisations – and individuals – enjoy the swagger and the bluster of being able to bring (and threaten) cases aimed at criminalising and penalising others.

But as the noted jurist Benjamin Parker averred: with great power comes great responsibility.

And the power to criminalise and penalise others is one of greatest powers and responsibilities of all.

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Lawyers often boast of being ‘fearless’.

Prosecutions should be – genuinely – fearless: but being fearless including being free of the fear of not proceeding with the prosecution because of the reason of embarrassment.

For, as the damning Post Office judgment shows, it was the fear of embarrassment that meant that things were not said and disclosed that should have been said and disclosed.

The damning Post Office judgment also shows what will happen when the power and the urge to prosecute is free from any checks and balances.

It shows what will happen when defendants do not get the materials and the advice that they need so as to be properly defended.

Yes: the appeal points to the dangers of automation and computerisation – but the appeal points harder at the dangers where managers and other decision-makers hide behind automation and computerisation.

And the delay in this appeal judgment – ten or so years after the miscarriages of justice – also shows the inefficiency of a criminal justice system that can often be so quick to impose criminal liability in putting right things when they go wrong.

Nobody – other than the defendants – come out of this judgment well.

Not least the criminal justice system itself.

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Colin the Caterpillar and the Art of War – why it is sometimes sensible not to enforce your legal rights

17th April 2021

Marks and Spencer has decided to add to the gaiety of the nation by issuing a legal claim in respect of Colin the Caterpillar, a chocolate cake.

The actual legal claim does not appear to be publicly available, but the news reports are that the action was launched in the last week at the high court.

Marks and Spencer is quoted as saying:

“Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value”. 

It must have seemed a good idea at the time.

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Hilarity has ensued.

The respondent to the claim, Aldi appears not to be taking the legal threat seriously.

And nor are many people on Twitter and other social media.

This mash-up of our old friends at Handforth parish council stood out in particular:

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This has all the signs of a publicity disaster for Marks and Spencer.

So why did Marks and Spencer issue the claim?

And what should the company have thought about before bringing the action?

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There is no doubt that Colin the Caterpillar is valuable to Marks and Spencer.

The product has recently celebrated its thirtieth birthday.

And Marks and Spencer have been long aware of competitors’ selling similar products, with the store itself telling us this on its dedicated Colin the Caterpillar page:

“We were the first to retailer to sell a caterpillar, with many supermarkets since trying to emulate this crowd-pleasing cake”.

Colin also has his own Wikipedia page.

And not only does he have these pages, he also has registrations on the trade mark registry.

(Trade mark has two words, by the way – we are not Americans, thank you.)

From a quick (no-exhaustive) search, it would appear that the term ‘Colin the Caterpillar’ was registered in 2009 – though given it had been on sale previously it may have had other intellectual property protection beforehand.

 

This search also showed that last year in 2020 there was a further registration for Colin’s packaging:

The happy news can also be revealed that Marks and Spencer has also registered the term Connie the Caterpillar – though not her packaging.

All three registrations are in respect of class 30:

These registrations in practice and in principle confer a commercial monopoly in products within that class.

(Please note: although I have general knowledge of trade mark law, I am not a trade mark specialist, and there will be things I will have missed – and I am happy to hear from any trade mark specialists in the comments below.)

Here it is important to note that what is protected with these registrations is the name and the packaging of the cakes – and not the cakes and their ingredients themselves.

Colin the Caterpillar and his box are protected, not the concept of a chocolate roll with a happy face on it.

*

One of the problems with trade mark law and practice is, in very general terms, that if a protected thing becomes too generic, you can lose the legal protection.

That is why trade mark holders often seem over-vigilant in asserting their legal rights.

Disney for example will assert their rights fearlessly, despite the ridicule and opprobrium.

Readers of a certain age will also remember letters to the press from Portakabin.

No doubt Aldi itself has its own trade mark lawyers who will send out stiff letters to infringing competitors.

(Indeed there are marks registered to various Aldi entities that presumably they would want respected.)

And as Marks and Spencer itself admits on its own website, there are other stores seeking to ’emulate’ the Colin cake.

One tweeter helpfully provides us with examples:

As does another:

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So: the commercial predicament of Marks and Spencer was as follows.

The company had a popular, valuable and distinctive well-established product.

This was a product that took expense to make and also to promote.

The product was protected with registered trade marks for both its name and its packaging (as well as, no doubt, other intellectual property protections such as ‘passing-off’.)

The company faced competition from other stores with similar products.

Some of these rival chocolate caterpillars had similar names and packaging.

What was a company in that position do?

*

Here we come to the old distinction between having a legal claim and asserting it.

In essence: just because you have a legal right, it does not necessarily follow that it should be asserted or enforced.

And if a decision is made to assert and enforce a legal right, you have to think through the implications and reactions.

Some companies like Disney will know there is a negative reaction to their enforcement of legal rights – but in such cases the cost-benefit analysis is that the rights are too valuable to lose to the public domain.

And such a robust approach is common in industries where the commercial value is largely in intellectual property.

A cartoon mouse and a portable cabin are not especially complicated things – so what is bought, sold and licensed is often the intellectual property of thing, rather than the thing itself.

And much the same can be said of a long chocolate roll decorated with sweets and icing.

One can imagine how the commercial and legal teams at Marks and Spencer knew that competitors with products with similar names and packaging was creating a commercial and legal risk.

It may well be Cuthbert today, but tomorrow it could be Colvin, and before they knew it there would be Colin the Caterpillars everywhere in every store.

And Colin the Caterpillar’s registration renewal was coming up in 2028. 

What else could they do?

#SaveColin

*

But.

They should have thought it through.

Presumably there had already been pre-action correspondence between the parties – it is rare for a company to issue a claim in the high court without setting out the case first in correspondence, and there are costs implications if a party does.

And presumably Aldi had denied the claim in correspondence.

Aldi thereby knew what was coming – and not only its commercial and legal departments, but also its media teams and external PR advisers.

Marks and Spencer do not appear to have issued a press release about the claim, but somehow, some way the media soon knew about the claim.

Perhaps this was because of a vigilant court watcher, or a tip-off from somebody, or even part of a media strategy: who knows.

But once the claim was issued at the high court, the dispute went from one set out in private and confidential correspondence between the parties – and into the public domain.

In essence: you lose control of the story.

And when the story is as media-friendly as about chocolate caterpillars called Colin and Cuthbert then there is a high probability that the media will become aware.

But from the news reporting it seems that Marks and Spencer have been caught unawares – while the Aldi press office is having a party with social media generally.

So the question has to be asked: was/is protecting the Colin the Caterpillar name and packaging worth it?

Unlike a cartoon mouse or a portable cabin, Colin the Caterpillar does not go to the heart of Marks and Spencer.

Had Aldi promoted an own-brand range of goods called, say, St Michelle then that would have been different.

And – and I defer here to trade mark lawyers – it may have been perfectly possible to renew the trade mark in 2028 even taking the (current) challenge of Cuthbert at its highest.

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A view had to be taken on the risk of litigation against the risk of not litigating.

As the Art of War showed (and that is still the best practical guide to civil litigation) being able to attack is not the same as it being a good idea to attack.

Here one can ask McDonalds about McLibel – or the British Chiropractic Association and its illiberal and misconceived claim against Simon Singh.

And if the decision is made to litigate then a claimant must be prepared for what can happen next – in terms of commercial and media matters, as well as at law.

This is not to say that people and companies should not assert and enforce their legal rights – indeed, that is what legal rights (and lawyers) exist for – but that the decision to do so is always distinct and separate from being able to do so.

**

Declaration: as the blogger ‘Jack of Kent’ I helped co-ordinate the defence campaign in British Chiropractic Association v Singh and I practise in media law as a solicitor, although not in respect of chocolate caterpillars or supermarket stores.

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