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Thread: HELP!!! CCJ, can it be overturned?

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    Default HELP!!! CCJ, can it be overturned?

    Hi there,
    I'm not sure if I'm in the right place as I already have a CCJ.
    First of all, can I apologise for the length of this post as I am trying to get as much info in as possible.
    I was sued in 2008 by a car dealer who claimed I agreed to pay 2.5k if I settled the finance within 12 months. I was not given a copy of the 'agreement' and he produced an alleged copy in court which I have no recollection of signing. The figure of 2.5k was filled in by hand. There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.
    My argument was that I could not remember signing it (I genuinely couldn't) and since I did not receive a copy, I could not take the consequences into consideration when settling the finance some 8 months later (I would definitely not have done so had I realised there would be a penalty). The claimant turned up with two witnesses and a barrister who was allowed to bully me mercilessly throughtout the hearing with no intervention from the judge, who found the case in the claimant's favour. I was on my own with no representation. She was also quite happy to award 2k in costs, which turned out to be incorrect. An offer to pay by installments (I am on a low income) was refused in court.

    To cut a long story short, I managed to make arrangements to pay by installments but ceased paying a year later after my mother died and I could not cope. My husband had bought a business vehicle from the same dealer and had missed some payments due to a downturn in business. The vehicle was repossessd and the dealer took us both to court for nearly £12,000 (he had insisted I sign for the finance as my husband was self-employed at the time). This case came into court just before last Christmas. The dealer lost the case as he had used the wrong type of agreement (he admitted this twice in his statement, but still thought he could fraudulently obtain a massive sum of money from us). He was berated by the judge, who made it quite clear that he knew exactly what he was doing and it could not possibly be a misunderstanding or innocent mistake.
    The dealer has now issued a writ in the High Court to recover the money from the first CCJ and I have had a mental breakdown over the fear of what will happen next. I have had a notice of seizure and walking possesion agreement pushed through my letterbox (no peaceful entry was gained and I have not signed anything). I do not even know if the writ should have been issued as the 'agreement' I was sued over may have been covered by the CCA. (If it wasn't, then would it have been legally enforceable?) The claimant knows that I suffer from depression as it was outlined quite clearly in both the court cases. I am very shaky and upset but am trying to deal with the situation. I will email the HCEO with an offer to pay by instalments and file forms N244 and N245 to try to stop enforcement.

    My question is:

    Is it possible to have the judgement set aside in view of the later attempt to obtain money by false pretences, or is it way too late? Is it worth mentioning this to the court or would it be pointless as judgement was issued?

    Any help or advice would be greatly appreciated, thanks





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    Default Re: HELP!!! CCJ, can it be overturned?

    I always take the view with these things that it's worth trying. If you don't succeed then you've lost nothing, if you do, you've gained a lot.

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    Default Re: HELP!!! CCJ, can it be overturned?

    The difficulty you face is that the judgement in your case is not a default judgement, it is a summary judgement, one given after a hearing in front of the judge.

    You cannot "set aside" a summary judgement, only appeal it, and to appeal you would ordinarily have to show an error in law by the judge, which doesnt appear to be the case from what you have said.

    Unless there is anything else to this situation you havent mentioned, then I cant see that you could set aside that judgement (first one).

    You might be able to have a reconsideration of the payment arrangement, if that is some consolation ?

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    Default Re: HELP!!! CCJ, can it be overturned?

    If its a finnance agreement then the error in law would be that the claiment failed to produce a true signed copy of the original agreement (Op said in first post "There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.". Instead they produced a mere copy of what the original would have looked like and its unlikely that they were put to proof by the defendant to strict proof that she received a copy of the signed agreement.

    So the grounds for appeal would be that the judgment was made based on a reconstituted copy of an alleged agreement that did not contain the defendants signiture. where as:

    In section 127(3) of the Consumer Credit Act 1974 it clearly states;
    (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


    and


    Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender (Claiment in this case) needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.

    So the above two points are what you should use as grounds for your appeal.


    Also Honey59 - Does the car dealership have a credit license? If your not sure PM me the name of the car dealership and i shall check it for you. If it does can you PM me the license number and i shall check to see if its still valid or ever was valid. If they were not the credit company then they would have no right to any money, let alone take yu to court for it as only the finance company would have had the right to the money. So double check who the finance provider was and let us know.

    By the way prior to april 2008 the upper limit for credit agreements regulated under the CCA was £25,000. Any agreements after April 2008 no longer have an upper limit so all would be regulated unless it is expressivly stated as being exempt under the act itself under section 16, 16A, 16B and 16C. Which are unlikely to apply to a car finance agreement anyway. So yes the CCA does probably regulate your car finance agreement.
    Last edited by teaboy2; 29th December 2011 at 04:11:AM.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi teaboy2,

    Thanks for your reply, it's really really helpful. I'm not sure how to PM so I'll find out and get in touch a.s.a.p.

    Many Thanks!!!

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    Default Re: HELP!!! CCJ, can it be overturned?

    Teaboy is right on the law point, but it would turn on whether you raised the unenforceability at the original hearing, and the judge decided against you, which isnt clear in the original post.

    Bear in mind that should you be unsucessful on the appeal, there could be cots consequences which would be fairly substantial, as if the original hearing was in front of a District Judge, then the appeal is to the designated Circuit Judge at the court who made the judgement.

    If you are considering an appeal, you are going to have to consider either getting advice from a solicitor, or from a suitably qualified person at the CAB or similar organisation, and fast, the time limits for appealing the original order will have passed by now, and an application to appeal out of time really depends on how fast you make it.

    EDIT : I see that the order you would be appealing was from 2008 ? If so, then I revert to my view that it would be too late to apply now.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi Trader, just to fill you in more on the issue at hand.

    Honey Pm'd the details of the car dealer ship, and informed me the finance was provided by a 3rd party finance company, whom we assume would have paid the value of the car to the car dealership. Now when Honey settled the agreement early, the finance company apparently claimed money back from the dealer and the dealer then took Honey to court for that money. The early settlement offer was claimed by the dealer as being a seperate agreement.

    So all still a bit sketchy, but it doesnt add up right now. So honey is going to contact the finance company and see what they come back with. But as far as am aware the finance company buys/owns the debt, so the dealer should have no right to make any claim in the first place and should not be making any early repayment offers outside of the finance agreement between the honey and the finance company.

    Even though it is out of time she can still apply for an "appeal out of time on Error of Law" (and on new evidence which may come to light soon) on the basis she only became aware of the point of law today, and to be honest the judge should have never ruled against her when there was not evident signiture or evidence to proof Honey59 had signed or received a signed copy of such agreement. Though the appeal will have to be made to the crown court most likely. Though i agree honey should seek a solicitor, alot give the first hours consultation free, and they can tell you how to go about it.
    Last edited by teaboy2; 29th December 2011 at 16:56:PM.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

    By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

    If you PM me, make sure to include a link to your thread as I don't give out advice in private. All PMs that are sent in missuse (including but not limited to phishing, spam) of the PM application and/or PMs that are threatening or abusive will be reported to the Site Team and if necessary to the police and/or relevant Authority.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi there,
    Rang finance company who are going to send a full copy of the agreement. They couldn't tell me much about what happened between the dealer and themselves, which is frustrating as I have no idea what they were told to push the finance through as I had recently been made redundant from my job at the time and made it quite clear to the dealer that I was not working but my husband would take over the payments until I found another job. (he was not asked to act as guarantor). I was told that the finance would not have gone through if I had no income (I wasn't even on benefits). Looking into the terms and condition, it seems that the finance company claim not to be liable for any dodgy scams pulled by dealers but only if the purchaser is a business, which I wasn't. What's interesting about that is the dealer kept claiming that I was a 'businesswoman' throughout the hearing and used exactly the same tactic when he later unsuccessfully tried to claim £12k from my husband and I. Very strange!

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    Default Re: HELP!!! CCJ, can it be overturned?

    Having looked at the documents, i can confirm the credit agreement was with the finance company and the CCA is good, and the agreement with the dealer was basically where the dealer forfeited his commission from the finance company for the hire purchase, however if any payments were missed within the first 12 months, they would be entitled to reclaim the amount they would have received in commission which is what they took Honey to court for. Though Honey never missed any payments as far as am aware in those first 12 months (Let me know if you did honey?).

    So that being said and the fact they forfeited their commission, then the finance company would not have paid them any commission and therefore would not have clawed anything back from them, unless the total amount of credit took account for the lack of commission, i.e. was 2.5K less credit then it would have been.

    So in anycase, it seems that the dealer made a claim based on the dears agreement where they (Honey) would pay any forfeited commission if she missed a payment in the first 12 months. Which as she did not, then the entire claim the dealer may have been fraudulent, which would make sense given the second claim was found to be fruadulent or having no legal basis to make such claim.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

    By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

    If you PM me, make sure to include a link to your thread as I don't give out advice in private. All PMs that are sent in missuse (including but not limited to phishing, spam) of the PM application and/or PMs that are threatening or abusive will be reported to the Site Team and if necessary to the police and/or relevant Authority.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Quote Originally Posted by teaboy2 View Post
    If its a finnance agreement then the error in law would be that the claiment failed to produce a true signed copy of the original agreement (Op said in first post "There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.". Instead they produced a mere copy of what the original would have looked like and its unlikely that they were put to proof by the defendant to strict proof that she received a copy of the signed agreement.

    So the grounds for appeal would be that the judgment was made based on a reconstituted copy of an alleged agreement that did not contain the defendants signiture. where as:

    In section 127(3) of the Consumer Credit Act 1974 it clearly states;
    (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


    and


    Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender (Claiment in this case) needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.

    So the above two points are what you should use as grounds for your appeal.


    Also Honey59 - Does the car dealership have a credit license? If your not sure PM me the name of the car dealership and i shall check it for you. If it does can you PM me the license number and i shall check to see if its still valid or ever was valid. If they were not the credit company then they would have no right to any money, let alone take yu to court for it as only the finance company would have had the right to the money. So double check who the finance provider was and let us know.

    By the way prior to april 2008 the upper limit for credit agreements regulated under the CCA was £25,000. Any agreements after April 2008 no longer have an upper limit so all would be regulated unless it is expressivly stated as being exempt under the act itself under section 16, 16A, 16B and 16C. Which are unlikely to apply to a car finance agreement anyway. So yes the CCA does probably regulate your car finance agreement.
    HI

    Just as note of caution.
    As judge Wakesman pointed out in the Manchester cases, the court only has to prove that an agreement was signed on the ballance of probabilities in order to comply with section 127(3). Providing a copy of the actual signed copy is not strictly speaking needed, however, so far courts have been reluctant to enforce without production of some kind of signed document.(to my knowledge)

    Peter

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    Default Re: HELP!!! CCJ, can it be overturned?

    Quote Originally Posted by peterbard View Post
    HI

    Just as note of caution.
    As judge Wakesman pointed out in the Manchester cases, the court only has to prove that an agreement was signed on the ballance of probabilities in order to comply with section 127(3). Providing a copy of the actual signed copy is not strictly speaking needed, however, so far courts have been reluctant to enforce without production of some kind of signed document.(to my knowledge)

    Peter
    Slightly pedantic, but don't you mean the lender has to prove an agreement was signed.
    They ARE out to get me!! But most give up!!

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    Default Re: HELP!!! CCJ, can it be overturned?

    Quote Originally Posted by basa48 View Post
    Slightly pedantic, but don't you mean the lender has to prove an agreement was signed.
    No not really it will be the court that decides on the ballance of probabilities.

    I think if the lender decided, it would probably be enforceable.

    Burden of proof may alter the ballance slightly but not much.

    Peter

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    Default Re: HELP!!! CCJ, can it be overturned?

    From what i can make out so far, the dealer did not forfeit their commission paid to them by the finance company, as such then they did not comply with their part of the agreement between the dealer and honey. Plus the finance company so far has no knowledge of claiming back any such commission paid to the dealer. So according to current information we have the dealer not only received commission for the sale under the finance agreement but then took honey to court for the same amount of forfeited commission for which they had not actually forfeited - therefore the dealer made 2 lots of commission payments on one account and as such obtained money from honey via deception i.e. falsely claiming they had forfeited their commission when they had not. Not only that, but the finance company is liable for any agreements between dealer and honey as honey purchase was not a business purchase.

    So as they had not forfeited the commission as per their agreement with honey, then they had no right to claim the money from honey as they had not been at a financial loss to start with.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

    By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

    If you PM me, make sure to include a link to your thread as I don't give out advice in private. All PMs that are sent in missuse (including but not limited to phishing, spam) of the PM application and/or PMs that are threatening or abusive will be reported to the Site Team and if necessary to the police and/or relevant Authority.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Thanks Teaboy,
    Hopefully things will become clearer when I get the information from the finance company. Even if they didn't pay the commission, there should have been something in the paperwork to say that 12 monthly payments must be made, which there wasn't or I wouldn't have paid the finance off early.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Well even if you paid off the finance early within 12 monthly payments you will have not missed any payments, as once paid off no payments are due anymore. I suspect the dealer may have pulled a fast one and got the money from both your finance company and you. It wouldn't surprise me given he knew exactly what he was doing in the second case which the judge rollicked him for before throwing it out.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

    By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi,
    Just a quick update on current situation. Finance company have sent copy of page 1 of agreement and customer service record which shows all payments made. This includes the commission to the dealer. Most of it doesn't make much sense though as it is an office copy and obviously not intended for the customer. I rang them and asked 2 questions: did they actually pay the commission and had they 'reclaimed' this as told in court by the claimant. They refused to tell me as they said it would be in breach of data protection. They said they would only divulge information if it was ordered by the court.
    Then it gets worse. I have had the N245 returned from the court as I have apparently used the incorrect form (as advised by the CCCS). They have sent an N244 instead and I have no idea what to put on it, apart from what I put on the N245. Will do my best to complete it (printer has just broke which doesn't help!) but I have no idea what is going to happen next.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi Honey, yeah you will need to get an order for disclosure from the courts to order the Finance Company to disclose whether they had claimed the money back paid as commission to the dealer from the dealer. I fail to see however why such a disclosure, without a court order, would be breach of data protection as the dealer is a public company and therefore not subjected to the protections of the data protection act, which only protects the personal data of private individuals.

    Personally i would contact the finance company again and make it clear to them that the data protection act applies only to private individuals, i.e. Members of the public. It does not apply to limited companies as there name and address are already in the public domain (Companies house register, own company website) along with said companys set of accounts and finanical records (Companies house) Refusal to disclosue the the request information on whether they reclaimed the paid commission to the dealer from the dealer under the data protection act is absolute nonsense as the data protection act does not apply to limited companies. If they do not disclosue the information your will name them as a joint defendant in your claim against the dealer, now surely they do not what that.
    Last edited by teaboy2; 6th January 2012 at 05:18:AM.
    Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (LB),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

    By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi Teaboy,
    Thanks a lot. I smell a VERY big rat about all of this and will ask the court to issue an order to the finance company. Would you believe, the Claimant sent the bailiffs around again today to claim £1k for the unlawful deal which was thrown out of court!!! If this doesn't prove that he is seriously deranged, nothing will.
    Thanks for your support, it's really appreciated and I will try to keep up to date with any news

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    Default Re: HELP!!! CCJ, can it be overturned?

    Quote Originally Posted by honey59 View Post
    Hi Teaboy,
    Thanks a lot. I smell a VERY big rat about all of this and will ask the court to issue an order to the finance company. Would you believe, the Claimant sent the bailiffs around again today to claim £1k for the unlawful deal which was thrown out of court!!! If this doesn't prove that he is seriously deranged, nothing will.
    Thanks for your support, it's really appreciated and I will try to keep up to date with any news
    May I ask which Bailiffs were sent?

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi there,
    It was the same one as the last time, a county court bailiff operating on behalf of the HCEO. Not sure if it's wise to name them in a post!

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    Default Re: HELP!!! CCJ, can it be overturned?

    No need for a name.

    A County Court Bailiff is employed by the County Court and no one else. He receives a salary and is not reliant on commissions from fees. If he has indeed attended for a Warrant which is now been overturned you have a case for compensation from his employer.

    If it is the HCEO who may have originally had a Writ of FiFa then when the original Judgment was overturned the Writ also died. If they are relying on the same, again you could be due compensation for harrasment.

    If your creditor is doing this on purpose then you could raise an injunction against him.

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi,
    Just a bit of an update as to what has been happening, and a bit of advice needed. Firstly, the claimant accepted my offer of payment, with no mention of the payments already made. I have been really ill with all the worry but am hoping to get some information from the finance company which might (a very BIG might) help me to take some action as there are a lot of discrepancies surrounding this case. Since the same person tried to defraud us of a substantial sum of money, they are obviously adept at flouting the law. I guess things have settled down a bit on this issue, which was the reason for my first post.
    Now for the big one! The claimant , as mentioned before, sent in the bailiffs to try and recover money from the case which was thrown out of court due to his illegal agreement. EWe filed an N244 asking for the writ to be cancelled, set aside judgement and stay of execution. A court date has been set for this. The claimant then sneakily tried to get us to sign a tomlin order saying they would cancel the writ if we vacated the hearing. We refused, and they then said we had 'misunderstood' them and they would agree to both cancel the writ and set aside the judgement. If we proceeded to court, they threatened us with indemnity costs.
    This is where I need a bit of advice. So far, the court have suggested bringing the letters to the hearing. They couldn't say whether or not the claimant would be entitled to costs. We took legal advice from various sources and have been given conflicting views. Go to court, risk the wrath of the judge for dragging the poor darlings along after they had already agreed to our request on the N244, or, ignore them as they have filed a vexatious claim and they will not be entitled to profit from it. My OH is panic stricken in case we end up with a massive bill. I am FURIOUS that someone can send bailiffs in for money they know they are not entitled to, then think they can sweep it all under the carpet when it backfires on them. The worst thing is, had the bailiff gained entry he could have returned and ransacked out home.
    Any body got any ideas on how to approach this?
    Many thanks

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi Honey59,

    Looking at the antics of the low-life who is the source of the problems you are experiencing, once a court strikes out a case, it can only be re-opened by the High Court and, even then, there must be compelling evidence to re-open. From what you've said, it sounds like they're trying to threaten you with what is known as a Part 36.

    I'm afraid the court staff are correct in what they say as they cannot say, either way, how a judge will weigh the evidence placed before them at a hearing.

    Some judges can be complete idiots, but the ones I have had dealings with, both as a policeman and a plaintiff in civil cases, seem to be fairly switched-on. If the low-life has filed a vexatious claim, they run the risk of being deemed a Vexatious Litigant. This is the kiss of death, as far their ability to issue legal proceedings is concerned. Vexatious Litigant exists to prevent the court system from becoming clogged up with claims of little or no merit and stop legal bullying. Any person or company deemed a Vexatious Litigant is not permitted to issue any form of legal proceedings without submitting the case papers to the High Court and, even then, they cannot proceed until the High Court issues an order allowing them to proceed, if ever.

    If you are going to be represented by a solicitor or counsel, I would get them to make the court aware of the low-life's behaviour. In my experience, judges do not take kindly to those who abuse the law in the way you describe.

    I think it is best you speak to a legal professional about this, if only to gauge which way things could go and then base your decision on that.

    Bluebottle

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi Bluebottle,
    Thanks for your reply. We have a meeting with a solicitor next week with a view to suing the claimant for fraudulent misrepresentation. He will be looking at the case as a whole so might have a better idea of how to go forward. We are on a low income and don't know what our options are, but I am sick of being threatened by this vile crook who will hopefully get his comeuppance at some point.
    Many Thanks

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    Default Re: HELP!!! CCJ, can it be overturned?

    Hi again,

    If there is any evidence of Fraud by False Misrepresentation, under Section 2, Fraud Act 2006, this needs to be reported to the police, as it is an arrestable offence under Section 24/24A, Police and Criminal Evidence Act 1984.

    You may hear the solicitor mention the term "abuse of legal process", but that will refer to the low-life, not you.

    Can I suggest, in addition to the offence I have mentioned above, you also discuss with the solicitor the possibility of offences under the following legislation -

    Harassment (Sections 2 and 7, Protection from Harassment Act 1997)

    Both the low-life and the bailiffs could be proceeded against for offences of harassment. Do you know if the bailiffs were Court Bailiffs or Certificated Bailiffs? If they were Certificated Bailiffs, do you know which firm they were from?

    Let me know, please. Thanks.

    Bluebottle

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