Trying to find details of an old judgement

[NannaOfTwo]

This is a bit of a complicated case and we're not having much luck investigating the matter, but surely someone must have been in the same situation.

In the late 90s I owned a small business/property and leased it out to a man who failed to run it properly and eventually 'did a runner'. Years later the man and his wife were found guilty in a large fraud case, but that is unrelated to my claim.

I took him to court and after much messing about a judgement was made in my favour. Going through the large amount of documentation I have proof of the original claim and his summons to court, his rebuttal and our amended claim. I have proof that the judgement was made in my favour after he failed to defend the case in court. I have a claim against his property.

What I don't have is proof of the amount of the judgement and whether interest is being applied.

I found out via a mutual contact that the man who owed the debt died last year. After seeking advice i was informed that we could ask the court to enforce our claim, but without knowing how much I am owed how do i go about doing so?

I wrote to his widow to ask if she could pay the debt and avoid having to sell her property and she basically told me I would have to wait until she dies.

I was initially looking into this while trying to get my own affairs in order and would prefer to not have to leave it to my kids to deal with. I'm in my 80s and feel like I'm banging my head on a wall.

My solicitor from that time has destroyed any documents they had and the court have told us they can't find anything in open records, but civil cases are protected under the data protection act.

I can't afford to spend hundreds, potentially thousands of pounds on legal advice, especially as I have no idea how much I am entitled to.

[dslippy]

Before you spend anything, make sure that you can still pursue the claim and are not barred by limitation.

[NannaOfTwo]

I hadn't checked this post for some time as I didn't see any response, so thanks for your response dslippy

Things have moved on a bit since then. I have had it confirmed that my solicitor and the court have destroyed all records pertaining to this case. I requested the Land Registry to do a search for any related documents but the only documents they have don't state how much I am owed

My question now is whether I have a case against my solicitor for mismanaging my case?

They have told us that they no longer deal with cases such as this and have referred us to another solicitor, but what can they do if there are no records?

I am unsure if there is any limitation on the time we have to claim, I was told that I would have to wait until he died or sold the house. I would have preferred there to be a time limit as I would have been paid years ago

I'm getting pretty despondent about this whole business and can really do without any further stress, but I also could really do with what is owed to me. I would be grateful if anyone has any further advice

[R0b]

My question now is whether I have a case against my solicitor for mismanaging my case?

On what basis do you think the firm you instructed has mismanaged your case?

Not that I want to disappoint you, but if you are going to suggest that they have been negligent for failing to keep records then unless you have a miracle argument, I think that kind of claim has got absolutely no legs.

The courts and many businesses including law firms will have a document retention policy. I believe the courts will keep files for 6 years before they are destroyed, possibly longer if they are required to retain them for example a court order or some legislation imposes an obligation. But in the majority of cases, it will be 6 years and then records are destroyed.

Law firms are no different to the courts and many other businesses in that they will operate a retention policy. That policy will vary from firm to firm but they will generally align the retention policy to the Limitation Act 1980. For example, breach of contract and tort claims have a limitation period of 6 years from the date of breach to bring a claim or you are time-barred (also known as statute barred). This can be longer if a deed has been signed which may be 12 years or 15 years for certain activities like commercial property. If certain activities don't fall into that category, then the firm will probably give a reasonable retention period but I wouldn't expect less than 6 years for the most part - exception to that might be a personal injury case and the firm has full medical records so they won't retain anything that is not relevant to the claim for too long.

As the claimant, the onus is on you to keep records of your claim and judgment, not your law firm or the courts as they are not your personal repository. I would have expected (and I am assuming) that when you instructed the law firm, you would have been given a client care letter and within that letter, it would have explained how long they will keep your file. I appreciate it was so long ago so you might not have that information to hand, but I think it is unreasonable for you to expect that the firm should have kept a record of your file for 15 years or so - even banks who are heavily regulated don't keep records for that long!

You also have to bear in mind that we have data privacy laws which means that businesses should only retain personal data for as long as is necessary. It's not normally an excuse to say personal data should be retained on the off chance you want to enforce the claim.

Concerning the limitation period, once you have a judgment, it sits therefore and technically, you can look to enforce that judgment. The one small caveat is that if you don't enforce your claim after 6 years from the date of judgment, you need to make an application to the court for permission to enforce the judgment and that will be at the court's discretion. They will want a good enough reason as to why you didn't act earlier.

One thing I am not clear on is your reference to a 'claim against his property'. Can you clarify exactly what you mean by that? If I were to hazard a guess, it might be something like you have a charge in your favour against the property which presumably has been registered by the Land Registry? That would have required you to go to court and get that charge - do you recall any of that?

If you have a charge on the property, you will need to force a sale by asking permission of the court, though might be easier if he has died rather than alive it still difficult generally to force a sale as it could be opposed.

Just out of curiosity, how much money are we talking about?

Anyway, long story short if you have no record of the judgment but you have evidence of the claim form and an order from the judge that judgment has been entered in default of a defence then if I were in your shoes I would argue that the sum of money ought to be based on the amount stipulated in the claim form.

I would be making an application to the court for a declaration to that effect in the absence of evidence to the contrary, but your first hurdle would be to seek permission to enforce the claim. Both requests could be made as part of the same application so you don't have to duplicate and pay double application fees. The other thing you need to be mindful of is that now the defendant is dead, you should be claiming/enforcing against the estate rather than the defendant which you should seek guidance from the court on also.

[atticus]

R0b I am impressed that you were able to give the time to write such a detailed reply!

Just to add that I would expect the lawyers to have given their client a copy of the judgment. Particularly in that event, it is no part of the solicitor's duty to act as a long term storage facility for client papers.

[NannaOfTwo]

Apologies for the slow response. My son is helping with all this technical business and we have had a busy few days.

I have a large folder of documents from back then regarding this case. Nothing gets thrown out and I don't have, or remember even receiving, a final judgment from the court. I have a copy of the original claim and summons, but he failed to appear and made various appeals to delay the proceedings. We amended the claim and it appears that a judge ruled in our favour out of court.

I have a letter from my solicitor which states that the judge had awarded a sum just over £4k plus costs which had yet to be decided. Our costs were over £4k. I believed that interest would be applied but have no evidence that this was included in the judgement. After that, i had a charge placed on his property but was informed that I would not be able to enforce that claim until either he passed or the property was sold.

I next had a letter from my solicitor in 2010 to say they had been informed that the debtor had tried to transfer his share of the property to his wife but that ended up not happening, our charge remained and he would inform us if anything changed.

So, if there is a time limit on putting in a claim then why were we told we would have to wait? If our solicitor knew there was a time limit then why did he contact us years after that point to say that nothing had changed?

After we contacted his widow, she contacted our solicitor who informed her that we would not be able to force her to sell her property to repay the debt.

As it stands, we have to wait until she sells the house or she passes. Given our relative ages, it is likely that she will outlive me so the debt would be owed to my estate and we still don't know how much is owed.

I'm extremely grateful for the responses so far, thank you for your time and effort.