Bank Of Scotland Summany Cause Pursuer From Edinburgh

[sarahgracie18]

Hello.

I am about to embark on my journey into taking legal action against the bank of Scotland. I have sent the letter before action and all the previous steps.

I have filled in the summary cause forms but I am not totally sure if they have been done correctly. Specifically the wording of my statement of claim and the interest calculation.

Here is a link to my spreadsheet http://spreadsheets.google.com/ccc?k...NZQct7o6qkbvDA

And one to my summary cause summons.

http://www.creamer.pwp.blueyonder.co.uk/ebay/action.doc

I know this is a self help site but if anybody could have a glance over this information and give me some pointers I would be very grateful.

[taylorbmw]

Hi. I Have Filled Out All This Stuff. My Return Date 30th Nov With The Court Date Set For The 7th Dec. If You Fill It Out And Take It To The Court They Are Very Helpfull In Correcting Any Errors With You.

[scottishpol]

Hi Sarahgracie18,

One thing I noticed was in your statment of claim, you have used "claimant" instead of "pursuer".

[sarahgracie18]

Cheers scottishpol. Unfortunately I have already went to the sheriff court in Edinburgh and submitted the summary cause summons and parted with £40 . I doubt it'll matter too much if I have used an english expression.

Now all I have to do is get the papers served by a sheriff officer. Then it'll only be a matter of time before the bank of Scotland settle.

[scottishpol]

Good luck!

[Jennip34]

Sarah, you might find the court send that back to you to change the wording slightly. I used the same as you initially but they wanted it like this

1)THE PURSUER CLAIMS FROM THE DEFENDER THE SUM OF £xx
2)£XXX INTEREST FROM 01/01/01 TO 01/01/02 (DATE OF FIRST CHARGE TO LAST CHARGE @ 8% ANNUALLY
3)£XXX FOR THE DISTRESS AND INCONVENIENCE CAUSED TO THE PURSUER TOGETHER WITH THE EXPENSE OF BRINGING THE ACTION


I also attached my statement of claim as a seperate sheet

STATEMENT OF CLAIM
Case ref:
in causa
JENNIXX XXXXXX
v.
your BANK LIMITED
1. The parties are designed in the instance. This pursuer is a consumer within the meaning of paragraph 3 to schedule 8 of the Civil Jurisdiction and Judgments Act 1982 as amended. The pursuer is domiciled within the Sheriffdom. This court accordingly has jurisdiction. No proceedings are pending elsewhere between the parties hereto in respect of the subject matter of this action. To the knowledge of the pursuer, no agreement exists between the parties prorogating jurisdiction of the subject matter of the present cause to another court.
2. The pursuer had a XXXXXX account (account number XXXXXXXXX) with the defender. Since 22nd August 2001 until 20th July 2006 the defender made deductions from the account in respect of 'late fees' (when the pursuer made payment after the due date) and 'over limit fees' (when the balance of the account exceeded the agreed limit). (hereinafter referred to as ‘charges’)
3. The defenders state that charges are necessary to cover their costs. The defenders are called upon to lodge in process a statement indicating how much annual pre-tax profit is generated from applying bank charges to current accounts, identifying the income generated from applying charges to current accounts as against the expenditure incurred in processing unauthorised overdrafts. Their failure to do so will be founded upon. The amount of charges applied does not represent the defender’s actual costs in providing unauthorised lending on the pursuer’s current account under explanation that a substantial proportion of the defenders’ pre-tax profits are believed to be earned from bank charges.
4. The defenders charges represent a contractual penalty or fine and as such are irrecoverable at Scots common law. In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses which flowed from a breach of contract. The defenders charges are not liquidated losses and therefore the pursuer is entitled to be reimbursed in the sum craved.
5. Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:
‘Indicative and non-exhaustive list of terms which may be regarded as unfair
1. Terms which have the object of effect of-
(e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.
Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:
OFT case 15 – Kids of Wilmslow Ltd.
Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.
OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.
A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.
OFT case 4 – Dampcure-Woodcure/30Ltd.
Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.
Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTTC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.
6. The pursuer being entitled to reimbursement of the defender’s charges, decree as craved should be granted with expenses.

[Jennip34]

Sarah

I have also just noticed your amounts in section 4 'claim' and your statement of cliam are different £1059 and £1225. But no worries, the guys at the court are very helpful

[sarahgracie18]

Thanks Jennip34. The amounts £1059 and £1225 have been changed already in the form that I actually submitted to the court.

If the court sends the form back I will amend it to the more Scottish terminology as you suggested.

Also I have been offered around £800 by the Bank Of Scotland. Needless to say I will not be accepting this offer and will press on with the Summary Cause.

[sarahgracie18]

Good news. I got the summary cause summons back, stamped and ready to go. They must not really be bothered if it uses English terminology.

Going tomorrow to a sheriff officer to get it served.

Return Day: 23/01/2007
Calling Date: 30/01/2007 09:45 AM
Summons No: SC1433/6

[Jennip34]

Thats good Sarah. Shame you never got a return date in December but theres always the January sales

[skyap]

I'm at this stage too but could do with a little help from those you have been down the summary cause route (doesn't seem to be many out there!).

Got my Form 1 back from the court (been doing it by post as I wasn't able to go there in person), it has been stamped and has a claim number etc. I called the court and they said I was now to send off Form 1b to the defender after filling in the Return Day, Calling Date and claim number. I did this and then I noticed Section 8 - Service on the Defender where it says the person serving the summons should complete. I guess this is me but it says Solicitor/Sheriff Officer.

What did you guys do here?

cheers.

[scottishpol]

Great news!, once again...good luck Sarah

I will be following your path shortly, so will be watching with interest.

skyap, have you started your own thread?,
as I understand it, you must employ either a solicitor or a Sheriff Officer to serve the defender with a Summary Cause.
Have a look in your local phone book or yellow pages and you will find both that are capable.
I believe they will complete S8 for you.

[Jennip34]

Originally Posted by skyap

I'm at this stage too but could do with a little help from those you have been down the summary cause route (doesn't seem to be many out there!).

Got my Form 1 back from the court (been doing it by post as I wasn't able to go there in person), it has been stamped and has a claim number etc. I called the court and they said I was now to send off Form 1b to the defender after filling in the Return Day, Calling Date and claim number. I did this and then I noticed Section 8 - Service on the Defender where it says the person serving the summons should complete. I guess this is me but it says Solicitor/Sheriff Officer.

What did you guys do here?

cheers.

Yes it has to be a sheriff officer.You will get one in the yellow pages. Mine cost £15.44 but you can claim it back as part of your claim

[skyap]

Cheers Jennip & scottishpol!

It's weird that the court clerk I spoke to on the phone said I was to do it... unless she meant I was to arrange someone to do it. Anyway, thanks for the info and I'm glad it won't cost too much either!

I'll start my own post to let you know how I get on but just thought I'd see what you did since you were talking about it anyway

cheers.