Anson v Trump
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE OTTON,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 07 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0407-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBEN1 97/0834 CMS1 |
| Date | 07 April 1998 |
[1998] EWCA Civ J0407-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR MAWREY QC SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand
London WC2
The Master Of The Rolls
(Lord Woolf)
Lord Justice Otton
Lord Justice Robert Walker
QBEN1 97/0834 CMS1
MR M ROBERTS (Instructed by Messrs McNulty & Co, Hampshire RG21 7QQ) appeared on behalf of the Appellant
MR A BURNS (Instructed by Messrs Radcliffe Crossman Block, London SW1P 3SJ) appeared on behalf of the Respondent
I will ask Lord Justice Otton to give the first judgment.
This is an appeal from an order made on 12 December 1996 by Mr Richard Mawrey QC, sitting as a Deputy Judge of the High Court in the Queen's Bench Division. He dismissed a summons to set aside a default judgment, which had been entered against the defendant on 22 November 1996, and a concurrent application for a stay. He also dismissed a notice of appeal to the judge in chambers against the order of Master Murray made four days later on 26 November 1996. By this appeal the appellant seeks to set aside the default judgment and the decision of Master Murray.
The plaintiff is Lady Elizabeth Anson who is in the business of organizing parties for the rich and famous. The defendant is Mrs Ivana Trump. She is the former wife of Donald Trump, an American tycoon. She is described as a prominent international business woman and socialite. In June 1993 she was minded to give a surprise party to her fiancee. She approached the plaintiff who agreed to organise a party for 20 couples which involved hiring an exclusive restaurant and hotel, Le Manoir aux Quat' Saisons, in Oxfordshire. The party took place over the weekend of 19/20 June 1993. The defendant paid a deposit of £10,000. On 25 June the plaintiff duly rendered her bill for the balance of the account in the sum of £26,497.32, thus making the total account in the region of £36,500. The defendant asserts that the agreement was that the party would cost only a little under £25,000 or, in the alternative, that the total bill was excessive and that she should be liable only to pay a reasonable amount for the plaintiff's services.
By the time the proceedings were commenced by writ on 11 November 1994, some payments had been made by the defendant against the sum claimed. By the time the amended statement of claim was served on 28 June 1996, further sums had been paid and the sum outstanding, as far as the plaintiff was concerned, was reduced to approximately £12,000. The defendant has in effect paid to the plaintiff the sum which she contends she was liable to pay for the party in the first place.
The appeal is concerned primarily with procedural matters. In May 1996 the plaintiff sought to amend her statement of claim. She made application to Master Murray, who made an order dated 14 June which was somewhat unusual. He allowed the application to amend the statement of claim, and allowed the original statement of claim to be removed from the record and a new statement of claim to be substituted. At the same time he ordered that the defence should also be withdrawn. He directed that a new defence be served within 21 days after the service of the amended statement of claim.
The amended statement of claim was duly served on 28 June 1996. It is common ground that no defence was served within the 21 days ordered, nor indeed was any defence served in the succeeding five months. The plaintiff, perhaps disappointed by the lack of progress of such a simple claim, changed her solicitors. The new solicitors discreetly warned the defendant's solicitors that they intended to enter judgment on 22 November. The defendant's solicitors did nothing in between. They did not take out a time summons to extend the time for delivery of the defence. On the morning of 22 November 1996, the plaintiff's solicitors, shortly after the opening of the court offices, signed judgment in default for the original sum claimed. On the same day, in the morning and shortly before the default judgment was signed, the defendant's solicitors faxed a defence to stand as the amended defence. It was, in essence, identical with the original defence with some minor amendments. The defendants do not contend that the plaintiffs knew that the defence had been served by fax at their offices before the representative of the solicitors signed judgment in the High Court office. The matter went back to Master Murray on 26 November who refused a stay of execution on the defendant's application. However, later that day a stay was granted by Sir John Wood in chambers.
The first issue on the appeal is a short point: can a default judgment be entered where a defence is served outside the 21 day period ordered by the Master, but prior to the entry of judgment? Is such a judgment regular or can it be set aside ex debito justitiae or otherwise as of right? The defendant purported to serve the defence out of time and without leave to serve late. This was done by fax on 22 November. It was transmitted at about 9.42 am according to the clock on the defendant's fax machine. It was received by the plaintiff's solicitors between then and 10.05, when it came to the attention of the responsible person in the solicitor's office who had not departed for court. The representative who was to seek judgment at court at 10 am had already left the office.
Order 19 rule 2 provides:
"Where the plaintiff's claim against a defendant is for a liquidated demand only, then if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any."
The commentary immediately beneath the text reads as follows:
"If before a judgment is entered, the defendant serves a defence even though it be out of time, judgment in default cannot be entered ( Gill v Woodfin (1884) 25 Ch D and Gibbings v Strong (1884) 26 Ch D 66 CA)."
It is also to be noted that Order 19 rule 7(4) provides:
"Defence served after default—A defence served after expiration of the prescribed time but before judgment has been given cannot be disregarded, and will generally prevent the plaintiff from entering judgment, even though it is not served until after the plaintiff has served his summons or notice of motion for judgment under this rule, but the defendant may be ordered to pay the costs occasioned by his delay."
There is again a reference to Gill v Woodfin and Gibbings v Strong:
"In such a case the court will have regard to the contents of the defence served out of time, and deal with the case in such a manner that justice can be done."
Having considered Order 19 rule 2 the learned judge said:
"I take the view that the words 'if a defendant fails to serve a defence on the plaintiff' must be read as 'in accordance with the rules or orders made under the rules' otherwise those rules and any orders would be completely nugatory. If when Master Murray orders a defence to be served within 21 days this simply means that the defendant can serve a defence at any time she likes up to the point in time when, as it were, the rubber stamp is put on the judgment in the Law Courts, then it seems to me that that makes a mockery of r.2(1) and indeed of orders of Masters such as Master Murray.
In my judgment the correct way to read Ord 19 r 2 is to this effect. Where time has been limited for the service of a defence then the defendant has up to the expiry of that time to serve his or her defence. If the defendant does so within that time, then the defendant has complied with the rules or the order. A plaintiff who is foolish enough to sign judgment before the expiry of the time is liable to have that judgment set aside ex debito justitiae because the plaintiff has not waited [unti1] the time has expired. Once the time has expired, however, it seems to me that the defendant is at risk. If the defendant serves a defence, that defence is not a nullity in the sense that it is completely valueless. It is, however, irregularly served.
….
Once the time has expired, without a defence being served in that time, and the plaintiff thereafter [signs] judgment, that judgment in my judgment is regular but of course is liable to be set aside on application by the defendant."
Mr Michael Roberts, on behalf of the defendant, submits that although the judge said that the argument made a mockery of the wording of Order 19 rule 2, that approach overlooks two matters. First, if in fact the plaintiff does not enter judgment at the end of 21 days or a considerable time thereafter, there is no reason in principle why the defence should not be valid. By her actions in not entering judgment at the end of the 21 day period a plaintiff had effectively waived the defendant's obligation to serve within that period and impliedly consented to an extension of time. In particular, he relies upon the passage in the commentary to Order 19 rule 2, and the two 19th century decisions to which reference has been made. I have considered those decisions with great care. They must be considered in the light of the procedural rules then existing.
We have not been supplied with the text of the Rules of the Supreme Court in 1875, but in Gibbings v Strong Earl of Selborne, LC, refers to the rule in his judgment at...
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