Debt: Claimant’s explanation inherently implausible
A claimant who filed a request for judgment on the Money Claim Online (MCOL) system, knowing the defendant’s alleged admission had not been made, has been found liable for the tort of abuse of process.
It faced the prospect of having to pay out thousands of pounds in damages to the defendant as a result.
District Judge Branchflower in Barnsley described abuse of process as “a tort of some antiquity and considerable obscurity”.
He rejected the explanation by a director of Total Extraction Ltd and one of his employees that it was a simple mistake and that they had meant to request judgment in default of acknowledgement of service.
He noted that 14 days had not expired since the claim was issued and the MCOL system explicitly warned the user only to select judgment by admission if they have a copy in writing and can produce it if the court requests.
The judge said other mistakes that would have needed to occur made this version of events “inherently implausible”.
He found that employee Gabrielle Toms “knowingly, and not by mistake, selected the option for judgment by admission”. He described both Ms Toms and director Mark Willis as “unimpressive” witnesses and said he had the “clear impression Mr Willis was not being entirely frank in his evidence”.
Total Extraction Ltd v Aircentric Ltd [2021] EW Misc 21 (CC) – dating back to last year but only published yesterday – was a simple debt action. Though there were various disputes between the parties, before the issue of proceedings, the defendant made a significant part payment of the sum that was said to be due.
The claim for the remaining £7,248 was issued online on 29 January 2019, while the following day the defendant paid a further £5,280.
The defendant had until 17 February to acknowledge service but its attempt to do so on 12 February was rejected because, on 8 February, the claimant had filed the request for judgment based on a purported admission by the defendant that it owed all the money still due.
The judgment was set aside in April and three months later the court recorded that the defendant no longer intended to actively defend the balance of the claimant’s claim on the basis that it was not commercially viable to do so.
By then, the defendant had issued a counterclaim alleging that the claimant was liable under the tort of abuse of process for wrongly causing judgment to be entered against it, causing nearly £42,000 of special damages arising from the lost contracts and inability to procure parts and supplies caused by the withdrawal of credit lines.
DJ Branchflower said Ms Toms or Mr Willis may have “erroneously, but innocently” believed the £5,280 payment amounted to an admission, but that was not their case.
He added that, if he was wrong in holding that wrongfully entering judgment amounted to the tort of abuse of process, “then it seems to me that it should undoubtedly be treated as one of the special cases of abuse of civil legal process”.
The judge said he would give directions to determine quantum but the case was subsequently settled.
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