No stays in Scotland

[GLC]

There is no Sheriff Depute is Scotland - there used to be years ago. Perhaps Robertxc reference is to a Sheriff Principal? Scotland is divided into six sheriffdoms and all of the sheriff courts and sheriffs within each Sheriffdom is administered by a Sheriff Principal. The Sheriff Principal also hears appeals from decisions of sheriffs in civil actions.

Apparently the banks (in their usual arrogance)wrote to the Scottish Courts Administration Department (the civil servant wing of the courts system) to say in light of the OFT case in London they would be seeking to sist (stay) all cases in Scotland. I haven't seen this letter but anyone could ask for it under the Freedom of Information (Scotland) Act 2002 - the request should go to the Scottish Administration Dept. And this is the source of the confusion.

For example, I appeared in a bank charges case at Glasgow Sheriff Court recently where the bank was represented by counsel. After waiting almost 2 hours we got started and the sheriff said there was a Sheriff Principal 'Practice Note' saying all bank charges cases should be sisted. So that was that. However, when I went back to the office and called for a copy of the Note, it transpired there was no Practice Note.

Govan Law Centre has since written to the Sheriff Principal at Glasgow who has very kindly confirmed there is no Practice Note. Sheriff Principal Taylor advises that every bank charges case needs to be individually considered by the sheriff with regard to the particular facts and circumstances of the case. So there can be no 'blanket' stays in Scotland. Our case will call again in 3 weeks. Sheriff Baird at Glasgow has already permitted a bank charges case to proceed.

In addition, cases have been allowed to proceed at the following sheriff courts: Elgin, Inverness, Greenock, Edinburgh and the borders. Apparently a proof (trial) was fixed in Elgin last week and the bank settled. We have a proof next week in Inverness and there is a proof at Edinburgh in early November.

The Consumer Action Group and MSE are of course supporting various other case strategies in the UK - and GLC is very grateful for the expertise and support of colleagues at CAG & MSE. Its true to say that things have got tough for us all following the OFT case, but I think we have some good chances to make a break through (notwithstanding the OFT case).

Mike
Govan Law Centre

[Bigmac versus]

This sounds very bad the fact the sheriff principal said there was a 'practice note' yet you have it confirmed none exsists.
I hope this helps the campaign in Scotland move on to another level and look forward to this becoming the norm with any case in Scotland.

[GLC]

The Sheriff Principal confirmed there was no Practice Note - so this is good news.

I suspect the reason the sheriff (a part-time sheriff) mistakenly thought there was one, was perhaps related to the confusion created by the banks lawyers who took it upon themselves to contact the Scottish Courts Department with the suggestion of stays; the Department in turn circulated this correspondence.

We can now be clear there are no blanket stays (sists) in Scotland.

Mike

[Bigmac versus]

Great news Mike and as for the sheriff they really should know better than to assume this to be the case, thankfully you didnt.
What about the countless people who have had cases where a sist has been granted.

George

[Bigmac versus]

So for any cases in Scotland should we be advising the following then.

Govan Law Centre have in writing from the Sheriff Principal at Glasgow that there is no Practice Note. Sheriff Principal Taylor advises that every bank charges case needs to be individually considered by the sheriff with regard to the particular facts and circumstances of the case. So there can be no 'blanket' stays in Scotland.

[Douglas52]

Thanks very much Mike - That's just the information & news we needed- we can leave the politicians alone for a while!

[lammy2203]

Would it be worth appealing against the decision to sist my case or is it not worth it. The sheriff never mentioned the practice note in his decision.

[Douglas52]

Why did he sist your case?

[Bigmac versus]

lammy2203 i dont see why you shouldnt look into it as your sheriff may have also had the opinion that all cases were to be sisted, if this was the case then what you need is a copy of the letter in question which by the way Robert is working on.

[lammy2203]

The Judge granted the sist which i thought he would when after using the arguments from the GLC and the case in inverness he said that he was aware of the inverness case but had a different opinion than the sheriff there.
He also said that whilst he is aware that i am frustrated he wanted to wait untill the OFT case was finalised.
I said that that case was not binding in scottish law and although he agreed he felt that it would filter down to here or words to that effect.

He felt that if he did not grant the sist then it would be almost certainly appealed which would waste valuable court time plus more expense for me.

[Michael23]

After successfully opposing a sist at Greenock court 2 weeks ago I returned yesterday and the Sheriff set a date for a hearing. Scheduled to go ahead on 29th January 2008.

Its a bit of a wait and god knows what else will happen in this time period but at least I'm getting somewhere.

[lammy2203]

My problem is that the sheriff in the dumbarton region is granting all sists 9something which he practically told me before i had even got up to state my case so i was on a loser to start with) so i dont know what grounds to appeal i would have to try and turn him around

[Bigmac versus]

Been in touch with the claimant whos proof is set for Nov 11th November in Edinburgh.

[teenybopper]

does this mean I can claim at aberdeen sherriff court?do i have to as i live in area or do i claim in area bank has HO? If you're due more than scottish small claim limit of £750 can i split up claims into different dates for same account?cAN ANYONE HELP?

[Bigmac versus]

Hi teenybopper can you start your own thread in that banks forum please, this will help you in the long run.
Basically you cant split claims for same account.
In January the small claims limit goes up to £3000.
Court you file at must have branch in its jurisdiction, file where is convienant for you.

[Douglas52]

Originally Posted by Bigmac versus

Basically you cant split claims for same account.

I think this is wrong- its called res judicata and the Govan Law Centre has a post here
Sheriff Principal rejects banks' defence of res judicata | GLC July 2007

The Sheriff ruled that each charge was a wrongful act and therefore each was actionable.
But this decision is only applicable in Tayside, Central and Fife!

However as Bigmac says if you can wait till January you can go after much more at each sitting.

[Bigmac versus]

Douglas52 there are plenty of posts in here regarding res judicata and this only works if no court appearance was made in an earlier claim for that same account. I have been in the unfortunate position of knowing this first hand and indeed argued each charge was actionable to the sheriff only to be told my claim was incompetant and to return for a costing hearing, this has happened to a few claimants in the early days and thankfully we have learned from it.
Where res judicata would work would be if a claimant had raised a previous action and did not appear in court on that claim as settlement was offered you could then raise a second action for that account.
You cant have multiple claims on one account as this is seen as an abuse of court.

Case Law 'Ponterfex v Wood' if i remember rightly.

[goforit]

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[goforit]

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