Could your debts end up on a public register that harms your financial future? STEPHEN GOLD explains why you need to beware

The Register of Judgments, Orders and Fines is not a place you want to find your name, says retired judge Stephen Gold.

If you end up on it, the ramifications for you or any business you own could be considerable – and for some time. You may even be refused a mortgage or credit card.

A job offer may be out of the question because you are deemed to be financially imprudent. Your savvy fiancée may decide you aren’t such a good bet after all.

Supplies of goods for your business may only be available if you pay for them in cash, up front.

Stephen Gold explains how the register of debtors works, the plans to expand it to name claimants too and how to avoid being put on it in the first place…

What’s worse than having bailiffs banging your front door in full view of binocular-wielding neighbours?

It’s having details of a debt you once owed, or still owe, recorded in a register open to all the public to view for the foreseeable future.

The Register of Judgments, Orders and Fines is run by Registry Trust, a not-for-profit company, on behalf of the Ministry of Justice.

Here I will explain the ways of avoiding inclusion on the register, and how if to your horror you find yourself on there, you may get the entry against you cancelled.

The Government announced plans last month to expand the register by also identifying the claimants who pursued debts they were owed.

I will look at the potential consequences for claimants who have successfully brought proceedings of their names becoming open to the public. 

What judgments and orders go on the register?

Judgments of the County Court for the payment of money are the primary candidates for registration.

Money is the key – so not, for example, a judgment that says you must reestablish a boundary fence or cease playing your Hammond organ by 11pm on weekdays.

Similarly, judgments of the High Court, which will usually be for substantial amounts, have been added on to the candidates for registration since the register was started.

Also added are most orders for the payment of money which were made by a tribunal, and that would include an award by an employment tribunal.

The Great Escape: Excluded debts

The main judgments that will not be registered are those made by the High Court or County Court in cases that were contested, usually by you putting in a defence.

It matters not that the defence was spurious, farcical or the biggest load of nonsense ever to be committed to a piece of paper, or all three (though it is worth noting that this kind of defence is likely to add to what you are ultimately required to pay through wasted costs and possibly extra interest).

It matters not that you failed to turn up at court when the case was heard.

If a defence has gone in, then that is good enough.

But hold on. The exemption from registration will come to an end in a contested case in the following circumstances.

– You fail to settle and an order is made by the court for the judgment to be paid by instalments as a result of an application by the claimant;

– You apply for an instalment order;

– The claimant takes certain steps to enforce the judgment, such as requesting that the court orders your wages to be docked each month towards what is owed.

The following are also exempt from registration:

– Judgments in family cases, for example that maintenance or a lump sum has to be paid to a current or former spouse or partner;

– Judgments for you to pay arrears of mortgage instalments or rent – you may or may not have been ordered to give possession of the property to the claimant at the same hearing – unless and until your mortgage lender or landlord takes a step to enforce that judgment by, for example, sending in the bailiffs.

The life of the registration

If the judgment has been rightly registered, it stays put for six years from the date of the judgment, but not six years from the date it was registered, which could be some time later.

That probably means, then, problems with getting a new mortgage or credit generally for that period of time, at least.

However, you may be able to get the registration cancelled after you have settled a debt owed under a judgment. 

The easiest way of earning cancellation is to settle the judgment within one month.

Having done so, many defendants neglect to notify settlement to the court. If that is not done by either side, the court will be ignorant of settlement.

Once it does know, it will cancel the registration without requiring payment of any fee (which makes a change).

Should it be you, the defendant, asking for cancellation, you will need to send the court proof from the claimant that you did settle and within one month.

If that is not forthcoming, you may apply to the court for cancellation (using form N443) and include evidence that you settled in full and when and stump up a £15 fee for the privilege (which does not make a change).

You may have settled the judgment but late. It could be one day late or two years late. It could be by instalments or after enforcement action was taken against you.

In this situation, you will not qualify for cancellation. However, you will qualify for the runners-up prize which is a certificate of satisfaction.

The entry will still remain stained on the register for the six years, but it will be shown that you have settled. Better than nothing.

‘I never knew. Honest’

In 2023 the number of judgments in England and Wales which were registered was 1,019,295 and the expectation is that last year’s figure will be higher.

The majority of them were registered after court proceedings had been started and the defendant failed to do anything about defending them.

Normally, action to defend has to be taken within 14 days of date on which the court claim form is treated as coming to their attention. Not an eternity.

These are known as default judgments. However, perhaps you with your family were sunning yourselves in The Maldives for a month and found letters from the court with the claim form and a copy of the judgment on the doormat as you dropped down your cases.

Perhaps this paperwork was sent to a former address and you never received it. In most cases, the paperwork will be posted by the court to what the claimant last knew to be your home or, in the case of a business, your principal or last known place of business.

The address will have been notified to the court by the claimant. The court does not make its own address enquiries.

If the claimant has reason to believe that you are no longer at the address last known to them then court rules demand that they take reasonable steps to ascertain your current address. Often, they fail to do so.

There is another problem. The court will use first-class post to send you the claim form. But – dare I say it? – the service rendered by Royal Mail is not invariably first-class.

In fact, it is estimated that each year millions of letters are lost in the post although a considerable proportion of addressees fail to complain (and perhaps a lot of them are ignorant of the fact that they have anything to complain about).

In just three months last year, Ofcom has revealed that over 92,000 complaints of loss or mis-delivery were made.

There’s also the possibility that the court claim form will be delivered late.

Last December, Ofcom fined Royal Mail £10.5million for failing to meet its first and second class delivery targets in 2023/4: the second sanction in just over a year.

It is not unusual for a default judgment to be made against a defendant even though they never received the posted paperwork or received it too late to put in a defence within the stipulated time.

What counts against them is the court rule that, provided the claim form was correctly addressed, the defendant is to be treated as not only having received it because it was posted but having received it on the second business day after the day it was posted.

I think this rule is ripe for a overhaul. 

Challenging a default judgment

You can apply to the court for a default judgment to be set aside – that is a fancy name for a cancellation – with everything being restarted so that you can put in a defence.

Around 9 per cent of judgments are set aside. Sometimes, the court has a discretion about what it does and may set aside: other times it must do so.

It may set aside where you didn’t actually get the claim form or got it too late to put in a defence even though the law pretends you did get it and on time.

The judge will want to be satisfied that you have a real prospect of successfully defending – a good move would be to come up with a draft of the written defence you would rely in if the judgment were set aside – or that there is some other good reason why there should be a set aside.

But you must apply promptly.

There is no specified period defined for what is ‘prompt’.

But if, say, you have waited for more than a fortnight to apply after discovering that the judgment was made – perhaps you wanted to obtain legal advice or absorb this article which is rather long and, you may think, heavy going – you should explain in the application why you did not make it earlier.

The court must set aside where the judgment should never have been made for the reason that procedural rules have been breached. For example:

– At the point of the judgment, the time had not yet expired for you to put in a defence;

– The claim form was posted to an address that did not comply with the rules;

– The paperwork lacked essential details of what the claim was about, called ‘particulars of claim’.

In this sort of situation, the requirement to apply promptly for the set aside does not figure. This is not always appreciated.

If the court does order that the judgment is set aside, it should go on to get the registration cancelled by Registry Trust.

Ensure that it does so as this step sometimes slips under the radar. The credit reference agencies such as Experian and Equifax are likely to have picked up the judgment details from Registry Trust and included them in their own data on you.

That makes it important for you – and it is down to you and not the court – to ensure that their data are put right once the registration is cancelled.

You can search the register for details of what it is showing on you, at a cost of between £6 and £10. Go to trustonline.org.uk.

Setting aside but liable for debt

Take this scenario. You owe money. Your creditor has obtained a valid judgment for what you owe.

You have now got hold of enough money to settle the judgment, but you are too late to get the registration cancelled within the one month time scale.

You could apply for a set aside on the ground that there is a good reason for the judgment to go.

Some judges – not all – might be persuaded of this and adjourn the application for a short period to enable you to settle as promised and later, with evidence you have settled, order a set aside.

This will then lead to a cancellation on the register.

There is another prospective route to cancellation. This involves you reaching an agreement with your creditor to pay off the debt in one go or by instalments and for the creditor to agree to the registration being cancelled.

You can make some payment immediately to demonstrate your good faith.

This route will be of particular appeal to the creditor where they are struggling or expect to struggle to get their money through one of the usual enforcement methods, such as using the court bailiff.

Perhaps you are prepared to borrow money from a family member or friend to pay the creditor which you would not be prepared to do if the registration stood.

It is possible that in consideration of you borrowing, your creditor will agree to the amount of the judgment being reduced.

This agreement would need to be incorporated into a formal form of draft order and submitted to the court.

Many judges will be prepared to go along with the sort of arrangement because it makes commercial sense to do so but not all so there is no guarantee it will get through.

If the judge is unhappy then no part of the order will be made. That means, for example, you won’t find yourself having to borrow but not getting the judgment registration cancelled.

No judgment but an agreement

If a claim is made against you for money you admit you owe, there is an alternative to your creditor obtaining a judgment which will lead to its registration.

It is an agreement with your creditor which sets out how you will settle and is converted into a court order but will not lead to a registration so long as you keep to it.

It is called a ‘Tomlin Order’ and I looked at its use in my previous article on debt. It is worthwhile investigating with your creditor whether they would be prepared to go along with one of these.

Register to include claimants too

The judgment details that are currently registered include your name and address, the amount of the debt, date of the judgment and the relevant court.

But not the identity of the claimant.

That is the change the Government has said will be made. In future, the claimant’s name will be added in but, curiously, not their address.

Is this a big deal? Not humongous: the size of an average elephant.

The name of the claimant can already be ascertained from the court if you have the time and energy to wait for a court clerk to answer your written request or answer the phone.

Having the claimant’s identity registered will help you where you have discovered you’re on the register some time after the judgment was made – maybe you never received any paperwork from the court – and genuinely do not have a clue what the debt is all about. 

This could especially be so where the benefit of a historical debt has been sold on for peanuts to ‘Very Dodgy Debt Collectors Limited’.

Their name will come up in future and this will enable you to quickly get in touch with them.

Debt advisers will give thanks for the change too as it will ease their task in helping with judgment set aside applications and putting forward any settlement proposals to the claimant. 

It will also help creditors who may be thinking of starting court proceedings against you, to confer with the registered creditor and invite from them any information they have about your financial circumstances and their chances of recovering their money.

In fact, it makes sense for any would-be claimant, who is thinking about suing somebody for recovery of a debt, to make a search at the registry or with a credit reference agency so they can decide whether or not it is financially viable to go ahead and invest money in taking proceedings.

The change will also assist creditors who have obtained judgments which have gone unpaid to liaise with other creditors and find out what they have done about enforcement – although unpaid creditors are in competition with each other to try and get their money first.

The downside to the changes is the non-disclosure of the claimant’s address. Big businesses with multiple offices who are contacted by interested persons may curse being troubled by interested persons.

‘Mabel, there’s someone on the blower. Says we got a judgment for a fiver in Toytown county court five years ago against a Mister Smith and wants to know if he paid and might he have any good gear the bailiff could seize.’

‘I’m working from home. Tell him to ring back next year.’

Credit repairers – no thanks…

Don’t waste money on paying a non-lawyer firm to repair your credit by obtaining the setting aside of a registered judgment.

They don’t have a direct line to the judge. Applications prepared by these firms can almost be spotted in the dark, even by me without my specs on.

Some I have seen as a judge followed these sorts of lines.

‘The defendant never received the claim form and, if it was delivered, he was away at the time and the dog must have eaten it as there was vomit in the hallway when he returned and, in any event, they would have been too distressed to read anything which might have come from the court as their spouse had just deserted them and, incidentally, the postman is always delivering the defendant’s post to the man up the street.’

Application dismissed.