Forcing Court To Lift A Sist

[texel]

I guess it is down to the judge which I don't think it is right why some cases are sisted and others are not. I did hit the hardship bit and that the funds were to go to the inland revenue That might have made a difference. I'm afraid Iwas too big headed about my charges:o as the sheriff officer would not let me get more than the standard fee even though I said I had had to pay someone to look after my lambing while I was in court!!! Anyway best of luck in your situation.

[gemspan]

Hi there

Well, I was in court yesterday for 2 cases of unfair bank charges. Both cases has incidental applications by the bank to sist the action and I thought as it was a preliminery hearing this was all that would be discussed.

I contacted the bank prior to going to court to advise them that business accounts were not included in the OFT test case. They got in touch with me and offered to settle but advised that the first 10 charges were time barred. I declined the offer to settle. The phone call was made late Monday afternoon and we were in court 10.30am on Tuesday morning. THey advised me they would ask for a continuance and would be defending the action.

We (my mum, dad and I!) arrived at the court for the allocated time. The bank appointed an advocate to represent them - together with an assistant to take notes!!! . When the case was called I started to proceed with my argument why my business bank charges claim should not be sisted and the Sheriff stopped me in mid-sentence and said that she did not have the time to get into long protracted debates at the moment and we would have to wait until the end. The advocate approached me and told me that he would be asking for the charges relating to 2002 to be struck out due to time-barring. I assumed this would be discussed at a later hearing and allow me time to read up and present an argument against the time-bar issue.

When I went back into court I was absolutely appalled at the treatment this Sheriff handed out to an old lady who had a legal bill she couldnt afford to pay. She asked to pay it back at £50 a month because the solicitors were supposed to advise her at regular intervals of their fees so that she could pay them. The Sheriff told her that despite not being able to afford any more than £50 per month, it would take 5 years for the company to get their money back and that was too long for a business to wait. She granted a decree and said to the old lady that "you will have to get a loan or something to pay it!". She didnt question the fact that the solicitors hadnt kept her informed of their charges; she just let them hae their decree. Are Sheriff's supposed to advise people to take out loans when they can't afford to pay the debt they are in court for? I dont think so!!! At that moment I knew I was going to have a tough time!!

When I was called the advocate said that he was not going to be asking for a sist but said that they wanted the first tranch of charges struck out because they were time-barred. This was the first I knew of any such defence and believe I should have had time to consider this and get my argument together. I questioned the word "claim" and tried to relate it to the fact that I had evidence to suggest that I had claimed the money back from the bank within the prescribed period. Because I hadnt brought a court case she ruled that the first amount of charges should not be allowed. The advocate argued that the charges were fair. She continued the case until 6th May and I advised that, as the bank consider the charges to be fair I wanted them to disclose how much it costs them so that I could see if it costs them £35 to administer a returned DD. Sheriff told me that would take too long and I advised her that that was my right. If the other side believe them to be fair they must put forward their reasons for believing that. She said we could discuss that at the next hearing.

I had taken the time to do a lot of research into my parents case and actually advised them that the money claimed was in fact relative to 3 months of weekly pension payments to my parents and they had suffered hardship because of this. I advised that the FSA, OFT etc. encourage hardship cases to be heard!!! Gave the whole speil about English case etc., etc., etc., but she was having none of it. She sisted the case. The advocate said that 90% of cases were being sisted. When I disagreed with that and asked him for the statistics, the Sheriff advised that she had no reason to disbelieve him. Does this mean that she has reason to disbelieve me? Bearing in mind I have been the one that has been open and honest about the business bank charges etc., and they sneaked in a ruling for time-bar without consultation, I think she had more reason to disbelieve him than me!!!!

I ended up asking why all the Sheriff's werent singing from the same hymn sheet and commented that it was very unfair and obviously depended on the luck of the draw as to the Sheriff you got on the day. She had made her mind up before even hearing the case. She only listened to the advocate and didnt even take on board anything that I was saying.

I am now in the position where I am going to ask for a recall of the sist; complain about her behaviour and, make sure that the Bank disclose exactly how much it costs to administer a returned DD etc., This will mean that they will have to have their advocate present at all the hearings. Even if they try to settle with me, I am not settling with them. I am going to make sure they rack up ridiculous advocate fees. By the end of the day the BOS will wish they had settled my £600 claim and the Sheriff will wish she had listened to my argument on the day.

I wish you the best of luck. I say go for it. In my case, on the one hand she was ruling under Scots Law and then making a ruling which was relevant to an English Case.

Somebody told me today I was very brave to stand up to her. Why? At the end of the day the Sheriff is being paid to do a job and has guidelines on how to do it properly. She is clearly not doing a very good job and she has to be brought to task.

Small Claims Courts are set up so that the layman can represent themselves. In every case that day she ruled in favour of the company who had a solicitor representing them. She is clearly biased and should not be doing the job.

Kind regards
Gemspan

PS: Sorry for the rant!!!

[marko2002]

gemspan, I would also like to contratulate you also on your strength in court - it's often the case (as in mine) that despite being prepared the defence can sometimes swing you off course with their "ma lords" "ma ladys" and "ma ole man's a dustman" routine!. I for one would be personally interested to hear anything you can suggest for challenging a court to hear a case after being sisted although despite trawling the internet for the past month or so I have been unable to get any clarification on how sist's work, how long they can be held up for, etc.
I wish you luck and please do keep us informed
marko

[gemspan]

Hi Marko

I think it would be wise to wait until the OFT case is founded upon and the first appeal is made. That way things have changed and you can then go back to the drawing board by repeating your argument but, more importantly, the fact that it is your right in Scottish Law for your case to be heard.

Have you had a look at Govan Law Centre's advice on how to avoid a sist. Some of the information on there could be pretty relevant. Its a sticky at the top of the forum here.

I would also stick to numbered points and make them concise so that you can give a copy to the Sheriff so that they have it when you are going through it.

I think that the first findings on the OFT case are imminent. After that then I would put your application to recall the sist in straight away.

Hope this helps
Gemspan

[marko2002]

Gemspan, I used some of the arguments from the Govan Law Centre when the sheriff was sisting my case but it made no difference - I think most of them are frightened of actually having a case heard and having to deal with it so just prefer to sist, makes their job easier to have the decisions made for them from the OFT test case I reckon!. I am going to wait for the outcome to the test case, but I have a sneeky feeling that the powers that be may very well step in at some point and add pressure from some angle as for the banks to have to pay out at this scale now will no doubt affect the government's purse - wouldn't be surprised if the OFT are somehow "convinced" of a compromise

[gemspan]

Hi Marko

If a judge doesnt want the hassle of ruling on a case then they shouldnt be doing the job. My thoughts are that there are judges that are biased towards the big boys. Well, that's exactly how it felt yesterday in court for me!!! If a judge doesnt listen to your arguments - which are legitimate - then they should be brought to task. The reason I was given was that the OFT test case, while not have a direct effect on Scots law, would be very persuasive!!!!

They certainly don't like people questioning their judgements but, if you feel that there is a point of law that has not been looked at properly then it is your right to ask to have the sist recalled.

I would only wait until the judge's verdict is in, not for the appeals process. Then I would hit them with a recall of the sist - citing all the cases again.

I would say that it was probably just the judge you got on the day. IMO if this case does not relate to Scots Law then no cases should be sisted as they are not giving you the opportunity to use the process.

Kind regards
Gemspan

[texel]

Gemspan you were fantastic in court you were unfortunate to have that kind of judge. I often wonder where those judges get their training when they act like that. It is seldom that one gets a judge with the stomach to act strongly against the bullies. Best of luck for the future. i am expectin to receive an (I have forgotten what you call it, age has its problems with memory) anyway am about to send the bailiffs to the BOSW on the case I just won and they have not paid up!!!

[buzby]

The last time I heard of a situation like yours (Sheriff being chummy with an advocate ) they were previously colleagues in the same practice years ago! Of course, no hint of impropriety, simply an inside track.

That said - the luck of the draw plays an important part in whether your case will succeed, which will either favour you or the other party before the first word is are spoken.

Complaining about the Sheriff's behaviour seldom works to your advantage unless you can prove consistent bias or errors in law. The fact she wasn't 'nice' or gives you decisions you like is a very common complaint.

Still rootin' for you tho' !

[gemspan]

Hi there

Thanks for your words of encouragement guys!!!! I agree that the case was decided before the first word was spoken!!!

TBH I'm not angry about the decision; I am angry about the way the decision was made!!!! She absolutely did not take heed of any of my arguments against the sist and, indeed, she ruled on Scots Law in the first case and ruled on the outcome of an English test case in the second. She was using the law to the defender's advantage!!! We are either ruled under Scots Law or English Law. Had she ruled on English Law in the first case my charges wouldnt be time-barred!!!! LOL

Anyway, that said, relating to her ruling on the time-bar issue, I feel she was acting in a biased manner to allow a ruling that the charges be struck out - without first giving me the opportunity to consider my position and make an argument against why they shouldnt have been struck out!!! Does that make sense?

I have since had an opportunity to examine the Prescription and Limitation (Scotland) Act 1973 and have come up with the following:

The Defenders got a ruling based on the fact that I hadnt made a claim. However, I believe I believe that Section 6, 4,(a)(ii) would be a relevant argument against striking out the charges. This section says "...error induced by words or conduct of the debtor or any person acting on his behalf the creditor was induced to refrain from making a relevant claim in relation to the obligation..." I had letters advising me that the business charges did not fall under the UTCCR regulations and that the claim was not valid.

Indeed, throughout the whole bank charges debate the banks have always said that their charges are legal (lawful!) and have in some cases applied Default Notices relating to them. This is most definitely, IMO, inducing the creditor to believe that there is no legal basis for a claim.

The judge glanced over the letters and threw them down. In fact, I didnt get them back and, as this is the whole basis of my argument against time-barring I will have to get them back.

What do others think?

Gemspan

[buzby]

Have you received anything back from the Clerks office? All the original paperwork is returned to you in a manilla envelope once the disposition has been made.

[gemspan]

Hi Buzby

No, nothing back as yet. The appearance was just Tuesday so it may be in the post!!!!

Thanks for that.

Gemspan

[marko2002]

In light of the recent "victory" (and I use the term loosley!) I am about to set off to my local sheriff court and request details on how I would go about recalling the sist on the grounds that the sheriff who dealt with my case stated she would be prepared to look at the case again when a decision was reached with the OFT test case. As far as I am concerned a decision has now been reached and in our favour, despite the appeal process no doubt being sought from the banks. If anyone has any words of encouragement or grounds for recalling the sist I'd be glad to hear them.

I will also be asking the clerk if it is possible to ammend my original claim as I have since incurred further charges and I am currently unemployed (lost my job to redundancy in Feb). Again, any points or facts really appreciated.
Kind Regards,
Marko

[buzby]

Always worth a try - certainly, but (and I could be wrong) I believe the sisst 'freezes' the action. If you want to amend to up the amount(s) claimed for, this may need a fresh action. Ask anyway, and let's know what the clerk says.

[marko2002]

OK, swung by the court and did ask about recalling a sist and she explained I'd have to raise an "incidental application". In my haste I completely forgot about asking about ammending a claim although reading through the details on other websites regarding these applications it would appear I can alter my claim as that is partly what this form would be for. Basically, it's just a word doc as follows:

Incidental Application

Case number

(Pursuer)

V

(Defender)

The Pursuer/Defender respectfully crave the Court to:





Signed:
Pursuers:
Dated:

So it's down to business me thinks - not having the paperwork to hand I think I've been hit with a further 3-4 charges since submitting my claim last year and with the interest on the original charges having accrued I should be looking at a fair whack!. I'll keep this post alive and let everyone see my application before submitting it for comments and critisisms!
Cheers
Marko

[marko2002]

I think I might be loosing it in my "not so" old age ... OK, I've just been reading up a little on the results of the test case and something sprang out at me that didn't before - the OFT test case is based PURELY on overdraft charges, right or wrong? I'm guessing I'm right cause I've just read a few news articles again - so if that's the case why would this include returned DD's etc, are they talking purely about unauthorised overdraft's or are they using this term so loosley that it incorporates all kinds of charges? I've only ever had charges for returned DD and if I've went overdrawn it's always been because the bank applied the charge to my account and took it into the red.

If, indeed it is the case that the test case if based purely on unauthorised overdraft's then I think I've got an even stronger argument to get the sist recalled!.

Any feedback appreciated.
Marko

[buzby]

You can play fast and loose with an IA... effectively rewriting the original claim, and this takes precedence over the action itself (which is kinda illogical when you think about it) but you can fashion it in a way to get round the sist....

I've not seen the wording of the OFT claim, but I believe the overdraft fees are being used as a 'hook' for any fee or penalty imposed by the banks...

[marko2002]

Drafted a rough outline of how I intend to approach the court on lifting this sist, although please remember this is only a draft and would seriously appreciate anyone's opinions, comments and criticisms on the below before I submit it. Thanks in advance

Incidental Application

Case number

(Pursuer)

V

(Defender)

The Pursuer respectfully crave the Court to:

Recall the sist for