Tanir v Tanir

Where a claim form is to be served by the court under CPR 6.18, the court must establish that it was in fact posted, or that the surrounding facts do not cast doubt on posting, before the deeming provision can operate. A judgment in default wrongly entered because service was not established must be set aside under CPR 13.2. The court cannot avoid that mandatory consequence merely because the claimant may later obtain summary judgment or dispense with service. Procedural safeguards remain important, particularly where the judgment includes money and costs orders.

The claimant sought enforcement in England of a Turkish judgment for a loan and related sums. Judgment in default was entered after the defendant failed to acknowledge service. The defendant applied to set it aside, arguing that the claim form had never been served and, alternatively, that he had a real prospect of defending the enforcement claim.

Master Leslie dismissed the application, finding prima facie evidence of service and rejecting the proposed defences. The defendant appealed. The central issues were whether service by the court had been established for the purposes of CPR 6.18 and CPR 13.2, and, if the judgment was regular, whether it should be set aside under CPR 13.3.

1. Appeal allowed under CPR 13.2. The court records, including the incomplete notice of issue, did not establish that the court had posted the claim form. The correct address appeared on the claim form, but there was no reliable record of the date or method of service, and the defendant denied receiving the proceedings.
2. CPR 6.18(2) operates on the premise in CPR 6.18(1) that the court has served the claim form by post. The deeming provision therefore requires evidence that posting occurred, or at least surrounding facts which do not give reason to doubt it. There is no general presumption that proceedings were served merely because service was the court’s responsibility. This approach was applied from Patel v Smeaton [2000] unreported.
3. Because the judgment was wrongly entered in default of acknowledgment of service, CPR 13.2 required it to be set aside. The court declined to fashion a procedure avoiding that consequence by relying on the possibility of future orders dispensing with service or permitting an immediate summary judgment application. The guidance in Nelson v Clearsprings (Management) Ltd [2007] 1 WLR 962 did not justify such a course on these facts, particularly where the claimant had made no such application and the judgment included money and costs orders.
4. The alternative CPR 13.3 issue was academic. Had the judgment been regular, permission to appeal on that ground would have been refused. The alleged conflict of evidence did not provide a real prospect of establishing fraud. Berezovsky v Russian Television and Radio Broadcasting Company [2009] EWHC 1733 (QB) was materially different. The Turkish collection refusal compensation was functionally comparable to the French-law concept considered in SA General Textiles v Sun & Sand Ltd [1978] 1 QB 279, and no public-policy defence arose. The proposed counterclaim for attorney’s fees also disclosed no real prospect of success.

• High Court (Queen's Bench Division): Master Leslie dismissed the defendant’s application to set aside the default judgment and continued interim charging orders. On appeal, the High Court found the judgment irregular and allowed the appeal under CPR 13.2. The alternative CPR 13.3 ground was academic and would have been refused.