CCJ removal? How?

[Cocolisboa]

Asking for a client, a CCJ was given to him in 2013. He received this as he was attending court for a non serious driving offence. He was receiving income related benefits (ESA) at the time and had applied for legal aid through a solicitor firm.
In the end it transpired the firm hadn't submitted the legal aid forms and tried to bill him for a standard solicitor fee. At this point he was in a very bad place mentally and didnt challenge them and left it as he thought he was entitled to legal aid (which he was).
He then found out a year later he had a CCJ.

Now he is in a better place, he feels he did not receive this CCJ fairly because legally he was entitled to the legal aid and he thought that's what he was receiving.

4 years have now passed since then and he wants the CCJ removed. What could actually be done?

No judgemental, hind sight comments as this person had significant physical and mental health problems during this period.

[charitynjw]

Hi

Have the solicitors enforced the judgment?

[jaguarsuk]

Asking for a client, a CCJ was given to him in 2013. He received this as he was attending court for a non serious driving offence. He was receiving income related benefits (ESA) at the time and had applied for legal aid through a solicitor firm.
In the end it transpired the firm hadn't submitted the legal aid forms and tried to bill him for a standard solicitor fee. At this point he was in a very bad place mentally and didnt challenge them and left it as he thought he was entitled to legal aid (which he was).
He then found out a year later he had a CCJ.

Now he is in a better place, he feels he did not receive this CCJ fairly because legally he was entitled to the legal aid and he thought that's what he was receiving.

4 years have now passed since then and he wants the CCJ removed. What could actually be done?

No judgemental, hind sight comments as this person had significant physical and mental health problems during this period.

The problem you are going to have is coming up with evidence as to why it should be set aside. It sounds as though to some extent he may have engaged in the court process and therefore a judge would need a "compelling reason to set the judgement aside."

The fact that he was suffering from mental illness in itself may be enough, but showing via a draft defence that he has a prospect of exceeding on the claim would strengthen his application considerably.

If it were I my first port of call would be to send a Subject Access Request Letter to the solicitors to see what it turns up, there should be some mention of legal aid and you need to show they should have applied for legal aid not billed him.

Secondly I would try to find the legal aid guidelines from the time to show that he was in fact entitled to legal aid and the solicitor negligent in their failing to apply for it.

Finally contact the court to obtain a copy of the original claim form and copy of the judgement, do this once you have received everything back from the first two as once the court is aware your client knows about the CCJ he has obligation to be "prompt" in making an application to set aside.

When it comes to the application I'd imagine he will get fee remission and so I wouldn't even bother with asking the claimant for consent, I'd just file the application and get on with it.

When you have all the information, but before contacting the court come back here, let's have a pow wow over what you have and where things stands to agree a way forward.

[Cocolisboa]

JAGUARSUK thank you for this wonderful advice. I didn't know where to start.

The only thing I forgot to mention is that we are in Scotland. Would the process be any different here?

Kind Regards

[jaguarsuk]

JAGUARSUK thank you for this wonderful advice. I didn't know where to start.

The only thing I forgot to mention is that we are in Scotland. Would the process be any different here?

Kind Regards

Yes, sorry I based my answer on English process.

The SAR to solicitor and finding the legal aid guidelines are still relevant, but you won't be applying to set aside a CCJ.

I believe, but you may need to take further advice on this that you will need to apply to Recall the Decision of the Sheriff with the The Simple Procedure Application to Recall with the reason being under Rule 13.5 (b), (e) or (f) dependant on your client's situation.

You'll need to follow Rule 13.6 in making the application, so have a good read of your obligations and you are going to have to speak to the court once you have all the information from the SAR/Legal Aid to understand what happened to get to the decision in order to determine what parts of Rule 13.6 you are required to follow.