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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can I have a judgment for £1,840 in the small claims court

Resolved Question:

Can I have a judgment for £1,840 in the small claims court set aside if the documents were not served to my current address.
I moved from the address used in Apr-13. Mail re-direct on for 6-months.
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask when you discovered the judgement please?

Joshua :

Sorry I see you have stated this in your further information.

Joshua :

Thank you.

Joshua :

Do you dispute the debt claimed or do you accept the debt is owed but wish to remove the CCJ?

Customer:

The debt relates to work done by a solicitor in gaining probate when my aunt died. The debt should be shared between my brother and myself (both executors). Whilst we were unhappy with the slow progress made by the solicitor I do not wish to contest this, I just want the matter clearing. I doubt my brother will pay but I will pay the entire debt off if given a little time to pay with the judgment lifted. To pay within 1 month would be too much for me.

Joshua :

Thanks. Finally regarding money for the payment, I note what you say. Was there no money in the estate to pay the costs? Normally solicitor fees would be paid from the estate before any money is distributed to beneficiaries.

Customer:

There was circa £940 left in the estate and this has been offset against the debt already.

Joshua :

Thanks - so the estate was insolvent net of legal costs and there were no assets or money to cover the legal fees? Or was it that the estate was cash poor but had other assets such as house etc which were transferred to beneficiaries leaving insufficient liquid assets to cover fees?

Customer:

There was a house involved value £140k. My brother and I set up a bridging loan against this for £50k to put into a business, pending sale of the property. The solicitors acting were unwilling to assist in this so we used another firm. The house has subsequently been sold and the bridging loan paid off. Hence the funds from the sale did not pass through the original solicitors client account, creating the deficit

Joshua :

Thanks.

Joshua :

OK you can apply to have the judgement set aside if you did not receive the papers. However if you accept the debt is owed, all this will achieve is a new judgement being put in place giving you 30 days to pay. The old judgement will be removed sure enough but if you fail to pay the new judgement within 30 days you will end up with another CCJ so you may consider an alternative approach if this does not give you enough time as follows:

Joshua :

You need to consider making an application to set the judgement aside using form N244. You will need to give a statement explaining the position and ask the judge to set aside the default judgement on the basis that you did not receive papers because they were sent to an old address and that you had a reasonable prospect of a defence in that you could have repaid the debt had it been requested. You will need to explain why you are so late in making the application to explain the delay - that you have only just discovered the judgement.

Joshua :

In disputing rather than accepting the debt this will buy you much more time as the matter is likely to be listed for a hearing which will take several months to resolve itself into a new judgement. It is also possible for you to make a complaint to the Legal Ombudsman and ask that any hearing is postponed until after the outcome of your complaint to the Legal Ombudsman.

Joshua :

I appreciate your general desire to pay the debt rather than defend it but the above approach will allow you to buy yourself much more time to pay rather than just 30 days which would be the case if you accept the debt.

Joshua :

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=484

Joshua :

You do not need to prove in your above application that you are not liable for the debt or submit a full defence, but merely that you did not receive papers and have a reasonable prospect of defending the claim. Assuming the application is successful and courts are usually very willing to allow default judgements to be set aside the claimant will be back to square one, the entry on your credit file will be removed and the claimant will have to have a hearing to establish your liability where you will have the opportunity to fully defend your position in court or alternatively if you accept the debt, pay it within 30 days as above.

Joshua :

Time is of the essence with such applications. Providing you can demonstrate that you have not delayed the application from the point you discovered it and you can demonstrate that you claim that you did not receive papers and that is why you did not respond to them, your application to set aside the judgement is likely to be received well by a court.

Customer:

Thanks Joshua

Customer:

If I make a complaint to the Ombudsman, is that just about correspondence to wrong address or the solicitors overall performance in dealing with my Aunt's estate ?

Joshua :

You can complain to the Ombudsman about any aspect of their service to you. It is a free service and courts will often though do not have to agree to postpone hearings in favour of alternative dispute resolution as they courts are keen to shift work out of the courts whenever reasonably possible.

Joshua :

Of course although you may principally use the above to delay rather than defend the claim if you approach in this way you may be successful in reducing the bill which could only be a further positive.

Customer:

Thanks for that. If we are done, I'll press smiley face on your rating system and get on with sorting this out.

Joshua :

That would be very kind.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

Thanks again

Joshua :

Best wishes

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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