17. Complainant A complains that HMCTS took too long to produce a court order that they required for their claim. They say once the order was produced there was an error with the date on it which in turn allowed the defendant longer to pay the judgement.
18. Complainant A says that due to this administrative mistake they lost the opportunity to enforce their order.
19. In response to Complainant A’ complaint HMCTS acknowledged that it made a mistake and that it did not send the judgement order promptly and when it did it was incorrect.
20. The judgment order was made by the court on 17 May 2018, HMCTS did not send it to Complainant A until 25 June 2018.
21. HMCTS typed the date of payment on the order as 10 July 2018 which was 14 days from when the order was sent to the parties. HMCTS acknowledged that this was wrong and an administrative error, the payment date should have in fact been 31 May 2018 which is 14 days from the date of the hearing.
22. In its final response HMCTS acknowledge that its delays meant there was a loss of opportunity to Complainant A, however it could not compensate them for the actions the defendant took to liquidate their company.
23. We can see there was a delay in issuing the court order. This was some 5 weeks after the court hearing. We asked HMCTS to explain to us the reasons for the delay.
24. It explained that the judge who made the order on 17 May 2018 did not specify when the 14 days should start from. The clerk did not check with the judge what their intentions were at the time and made the debt payable 14 days from the date the order was drawn.
25. HMCTS advised that the court was working a backlog at the time and so the order was not drawn until 26 June 2018. It said that had the clerk made the debt payable 14 days from the hearing, the debtor would have already missed the deadline.
26. We enquired with HMCTS if it could provide reasons as to why there was a backlog at the time, HMCTS advised us that courts can have a backlog for a variety of reasons and these are typically things such as influx of work or staff leave. However, we do not know the specific reasons for the backlog at that particular time.
27. In order to decide whether HMCTS’ errors were maladministration, we have looked at what should have happened in this case. To do this, we have asked HMCTS what guidance it follows when drafting and sending judgement orders.
28. HMCTS have told us there is no specific guidance in place regarding issuing a judgement and when a debt should be payable by.
29. As there is no guidance available as to what should have happened, we have referred to the Ombudsman’s Principles of Good Administration (our principles).
30. These state that all public bodies must comply with the law and have regard for the rights of those concerned. They should act accordingly to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal.
31. We understand that the orders are produced at the direction of the judge, therefore in this case we can say it would have been reasonable in the absence of any guidance for the clerk to have checked with the judge about the payment date if they had been unsure at the time.
32. Our principles also state that public bodies should behave helpfully, dealing with people promptly, within reasonable timescales and within any published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take.
33. Whilst there is no published timescale or guidance to say how long HMTCS should take to produce a court order once the direction has been given by a judge, we can see from the guidance set out in our principles that 5 weeks to issue an order that required payment within 2 weeks falls short of what Complainant A could have reasonably expected in terms of how long it would take.
34. In line with our principles, we find that HMCTS should have sent the order sooner than it did because the court had originally given 2 weeks for the judgment debt to be paid and we can see that the date it should have been sent to Complainant A was much sooner than it was provided.
35. We can see from the complaint correspondence and from our discussions with HMCTS it has acknowledged and accepted that it made an error with the way it handled Complainant A’s order.
36. Complainant A was not provided with any update or information to inform them that the order was going to be delayed, furthermore when it did arrive it contained errors which we conclude could have easily been avoided had the clerk at the time checked with the judge.
37. We find that this fell so far short of what Complainant A could have expected that it was maladministration, we will go on to consider the impact of these errors on Complainant A.
38. The impact Complainant A says they suffered as a result of HMCTS’ error was financial hardship as a result of not being able to enforce the order. We have thought carefully about what would have happened had HMCTS issued the order sooner, and with the correct payment date on it.
39. If HMCTS had produced the order on time with the correct payment date the order would have been made payable by 31 May 2018. However, it is not possible for us to determine even on the balance of probabilities that the defendant would have paid the amount on this order.
40. We have considered the timeline of events after the court made its judgement and looked at whether the court order being issued sooner would have had a significant impact. In order to do this, we contacted the company that dealt with the insolvency of the defendant’s business. It advised us that it was formally instructed to assist the board with placing the company into Creditors Voluntary Liquidation on 12 June 2018. It explained to us that the assets of the company compromised of book debt. It said that it was informed when it was appointed that there were no physical assets of the company. Accordingly, this meant there were no assets of the company that could have been subject to enforcement.
41. It remains the case that Complainant A is still owed money by the defendant and they can seek payment by asking to be added to the list of creditors. Complainant A advised us that they had asked to be added to the list of creditors once they found that the company was being made insolvent.
42. Complainant A tells us that they sent off the forms and then did not hear anything back. When they sent the form two weeks later, they called, and the company confirmed they were on the list of creditors. Complainant A says following this phone call they assumed as they were on the list, they did not follow up anything further.
43. We enquired about this with the company and it confirmed that whilst Complainant A was added to the list of creditors, they had to date not yet submitted a proof of debt form which would formalise their claim in the liquidation process. It advised Complainant A was provided with a claim form however the responsibility lies with the creditors to make their claim. The company advised it is only required to make further request for claims only in the event it seems likely that a distribution will be paid to the unsecured creditor. The company confirmed that at this date of the liquidation a distribution seems unlikely.
44. We can say that Complainant A could have taken steps to seek a high court order much sooner than they did if the defendant had not paid. Complainant A would have been able to do this on 1 June 2018. This was before the liquidators were appointed. However, we cannot say this would have led to Complainant A successfully recovering their debt. This is because the company had no assets and no way of paying the debt. We believe, based on this additional information we received, that it would have been unlikely.
45. The EX322 guidance leaflet published by HMCTS states ‘before you decide how to go ahead, you need to consider whether you are likely to get the money owed and the court fee from the defendant. Remember, no court can guarantee that you will get your money back’. This illustrates that a court order is not a guarantee of payment.
46. Notwithstanding this, if the enforcement order had become live on 30 July 2018 it would have been unenforceable as the liquidation would have been in place at the date. Therefore, we agree that there was a missed opportunity here for Complainant A to take earlier action to enforce the judgement.
47. We can see from the complaint correspondence that HMCTS apologised to Complainant A for the delays and error with the order and offered them £100 for this. It also offered them £500 for the loss of opportunity to enforce their judgement and the stress and inconvenience caused.
48. In order to decide whether or not HMCTS has done enough to remedy this aspect of his complaint we have referred to HMCTS complaint handling guidance which sets out how it should consider financial remedies for complaints as well as our Principles for Remedy.
49. HMCTS’ complaint handling guidance on considering financial redress states under identify injustice and its impact, when there has been no financial loss, consider whether our mistakes have caused an injustice or had a serious or significant impact on the customer, and make a payment on this basis. Where a customer has been treated unfairly or given a poor service, we should consider a number of factors which could increase or decrease the impact on that person. We should bear these in mind when considering whether or not to make a payment and how much money to offer. If the claim seems reasonable, we need not to ask for proof of loss.
50. The guidance also states for potential loss, HMCTS facilitates the court process between claimant and defendants. When a claimant obtains a judgement in the court, the money is owed to that person and not the court. There is no guarantee that a debtor will have money or goods to pay what is owed, or that they will co-operate with the court processes. This is a risk of pursuing litigation. A customer may make a claim where the enforcement procedure has failed, particularly in a county court case. The debt remains something for the defendant to pay and it is likely that there would still be other enforcement options that the claimant could use.
51. Our Principles for Remedy guidance on getting it right states the public body should ideally, return complainants and, where appropriate, others who have suffered injustice or hardship as a result of the same maladministration or poor service, to the position they were in before the maladministration or poor service took place. If that is not possible, compensate them appropriately.
52. We would never be able to conclude that had the order been produced in time with the correct date or that if the enforcement had taken place sooner that the defendant would have paid the debt. So, it is not possible to say what position Complainant A would have been in had the maladministration not occurred, but we can look at whether HMCTS has offered the appropriate amount of remedy for the loss of opportunity and distress.
53. Based on the guidance set out in HMCTS’ complaint handling guidance, we can see that HMCTS has reached a reasonable offer which is in line with the examples provided within that guidance, and our own Principles for Remedy, which we feel adequately reflects the loss of opportunity to pursue the debt through the high court sooner, and the distress and frustration caused by the delays.
54. As we are satisfied that HMCTS has already taken appropriate steps to put things right, we are not upholding this part of the complaint.
55. Complainant A complains about poor complaint handling, they say they experienced several delays in HMCTS responding to their complaint leading them to chase HMCTS repeatedly.
56. Complainant A says they initially tried to raise their complaint via the court directly, however following several chasers they did not receive any responses to their complaint and therefore logged a complaint via HMCTS’ resolver platform online.
57. We have put together a timeline of Complainant A’ complaint based on the evidence we have seen.
• 21 October 2018 – Complaint emailed to the court directly.
• 31 October 2018 – Complainant A emailed the court again to follow up.
• 10 January 2019 – Complainant A contacted the court again, Complainant A was advised that the court had not received their previous emails however an investigation in to their complaint would now be carried out.
• 23 January 2019- Complainant A emailed to ask for an update.
• 28 January 2019- The courts emailed Complainant A to advise there had been IT issues and it had been unable to carry out its investigation.
• 31 January 2019 – The court emailed Complainant A to advise that an investigation was still ongoing, and that the handler was seeking advice from senior management.
• 22 February 2019 – Complainant A chased for an update.
• 11 March 2019 – Complainant A chased for an update again.
• 16 May 2019 – Complainant A raised their complaint via resolver online.
• 31 May 2019 – Complainant A escalated their complaint on resolver due to no response.
• 2 June 2019 – Complainant A raised their complaint again via resolver online.
• 19 June 2019- Complainant A raised their complaint again via resolver online.
• 6 August 2019 – HMCTS emailed Complainant A (Complainant A says they did not receive this, and they had to chase HMCTS again)
• 23 August 2019 – HMCTS re sent the email dated August 2019 following contact from Complainant A.
• 28 August 2019 – Complainant A emailed HMCTS to say they were unhappy with the response and wanted a review.
• 12 November 2019 – HMCTS provided a review stage reply.
• 26 November 2019 – Complainant A emailed HMCTS to appeal.
• 10 December 2019 – HMCTS provided an appeal stage reply which was the final response.
58. In its final response HMCTS acknowledge that there were delays in the complaint handling and that Complainant A had to repeatedly chase the court for a response. It said that there was an IT problem at the time. It also acknowledged that there was a delay in responding to the complaint sent via resolver but did not provide any reasons for this delay.
59. We can see from the timeline that Complainant A experienced a significant delay in getting a response to his complaint.
60. In order to decide whether there has been maladministration in the way HMCTS handled Complainant A complaint, we have looked at what should have happened in this case. To do this, we have asked HMCTS what guidance it follows when responding to complaints.
61. HMCTS’ Complaint Handling guidance sets out the guidance for all three tiers of its process. It says:
First Contact – This states that first contact should be responded to within 10 working days.
Review – This states if the customer is not satisfied with the first response they can ask for a review by a senior manager. It is the customer’s responsibility to escalate the complaint to this stage. The reviewer should reply within 10 working days.
Appeal - The customer investigation team will aim to reply within 15 working days. The reply will give contact details of how the customer can escalate a complaint to the PHSO.
62. We have also referred to The Ombudsman Principles of Good Complaint Handling which say that public bodies should deal with complaints promptly, avoiding unnecessary delay, and in line with published service standards where appropriate. Resolving problems and complaints as soon as possible is best for both complainants and public bodies.
63. Our principles also say the body should acknowledge the complaint and tell the complainant how long they can expect to wait to receive a reply. Public bodies should keep the complainant regularly informed about progress and the reasons for any delays, and provide a point of contact throughout the course of the complaint.
64. We asked HMCTS to provide some information in relation to the IT issues at the time. HMCTS say that there was a national issue at the time which caused problems with accessing mailboxes. Due to the length of time that has passed it advised it is difficult for HMCTS to confirm the exact reasons for the IT issues at the time.
65. HMCTS say that resolver emails are sent to a generic email box which should have generated an automatic reply to Complainant A to confirm receipt of the email. However, we do not have any evidence to show whether these automated responses were sent each time.
66. HMCTS confirmed that it failed to respond to Complainant A resolver emails dated 16 May 2019, 31 May 2019, 2 June 2019 and 19 June 2019.
67. HMCTS advised us that the court deletes emails after 1 year, so it is unable to check if any of the emails from Complainant A were received.
68. We can see from the complaint file that HMCTS sent its initial complaint response to Complainant A’ Resolver account on 6 August 2019, however they then came to the PHSO to complain that they had not received any response and HMCTS re sent this to them to their personal email address.
69. Whilst we accept some of the issues may have been IT related at the time and outside of HMCTS’ control there is still evidence to show that it failed to regularly keep Complainant A updated and informed of the reasons for the delays.
70. HMCTS failed to follow its own guidance for the first contact and review stage of Complainant A complaint and he was not provided with a response within a 10 day period.
71. We can see that the appeal stage response was provided within the outlined 15 working day period.
72. We accept that delays can happen, and sometimes the reasons for this can be unavoidable and not due to maladministration. In looking at whether a delay is so serious as to be maladministration we look at how far outside the published target timescales the delay in responding to the complaint was, and whether anything was done to mitigate the delay, for example keeping the person updated. In total Complainant A had to wait 10 months before receiving a first tier response in relation to his complaint this falls short of both HMCTS’ own guidance and our Principles of Good Administration as Complainant A suffered from delays, was rarely updated or had their correspondence acknowledged. Therefore, in this case we find that HMCTS’ handling of Complainant A’ complaint fell so far short of the expected standards that it was maladministration. We have considered the impact of this below.
73. Complainant A tells us they suffered from stress and frustration during this time whilst having to pursue their complaint multiple times without any response.
74. While we can identify service failings in relation to the complaint handling, we can also see that HMCTS have acknowledged the delay, apologised and offered £250 as remedy. In considering whether or not this remedy is appropriate, we have referred to HMCTS complaint handling guidance which we have referenced earlier in this report.
75. HMCTS guidance states that HMCTS should consider where there has been no financial loss, whether its mistakes have caused an injustice or significant impact on the customer. We can see in relation to the complaint handling whilst Complainant A did not suffer a financial loss he did suffer from a significant period of distress whilst trying to get a response to his complaint. This is evident from the content and frequency of his correspondence with HMCTS, Complainant A also approached us initially in August 2019 to ask for help as he was having difficulty in getting any response from HMCTS.
76. The guidance also states that delays itself does not automatically mean payments are offered however HMCTS should consider specific things prior to deciding whether a financial remedy is appropriate, such as the time taken to deal with a case in relation to HMCTS’ timescales or targets for that work.
77. HMCTS have a Range of Payments within their complaint handling guidance which complaint handlers should consider when deciding financial remedy. We can see that the remedy scale recommends payments of between £100-£200 for delays in complaint handling and HMCTS has offered slightly more than the recommended amount.
78. Our Principles for remedy state that where maladministration or poor service has led to injustice or hardship, the public body responsible should take steps to provide an appropriate and proportionate remedy. We find that HMCTS has acted in line with these principles by following its own guidance and offering Complainant A a payment to reflect the impact of the delays in its complaint handling. Therefore, we do not uphold this complaint.