In scotland - claiming via English courts.

[hlk01]

We are about to make a claim against HSBC although account opened and maintained in Scotland. I would rather not maintain 2 threads but I thought this would be of interest to other Scottish based members. The link is

Scotland - HSBC

The reasons for following this route are as follows -

1. claim well above the £750 limit requiring multiple claims in Scotland

2. I spoke to somone at Glasgow Sheriff court recently and they suggested I could try and lodge a claim in England. He said if it came under 'Civil Jurisdiction and Judgments Act 1982' then there shouldn't be a problem.

3. I believe this has already been done by another member who hopefully will confirm this via the forum.

4. Apparently you do not need an English address.

Although - I have read quite a bit about the 'Civil Jurisdiction and Judgments Act 1982' it perhaps be worth anyone with a bit of legal expertise commenting. In particular, it would be good to know if I should mention this in my initial correspondence.

Quick other question - when should the 'preliminary' letter be used over the 'letter before action' ?

[BankFodder]

Great. This is information that we badly need. Please keep us updated on what happens.
As far as prelim letter, can you post this in your thread and we'll reply there.

[hlk01]

Originally Posted by BankFodder

Great. This is information that we badly need. Please keep us updated on what happens.
As far as prelim letter, can you post this in your thread and we'll reply there.

Will do.

[woolfie]

Dont think it is all that easy but certainly it would seem possible to claim through the Eglish Courts. I spoke to Money Claim today and they told me it couldnt be done through them which directly contradicts what they told me before.

I then spoke to a County Court and they told me it was possible but not an easy thing to do. You would defiately need legal assistance. The process is more complicated than a standard small claim and also when a judgement is made against a scottish company there are some issues regarding enforcment of the judgements.

More information is definately required here I think.

Woolfie

[hlk01]

If, sorry when we need to file an action it will be done manually and not through moneyclaim, they do require an address in England.

HSBC is not a Scottish company so I'm no trying to sue a Scottish company in the English courts just to avail myself of the better small claims procedure. I'm choosing to do it on their patch.

Another member has told me privately that he has done this already, albeit not with HSBC but another English based bank, that it was not too difficult and that the clerks at the county courts are quite helpful with the forms etc. Once he has everything completely settled I think he will post but he cannot do that at the moment.

I think, but need to check, that you still use the N1 form but post it out to the relevant court.

Just one other thing, although the banks will hold previous addresses I'd be very suprised if they held an indicator on an account to say which law applied when it was opened. And as I think I asked in earlier post - Are all the banks going to check every claimant on the off chance they come under Scottish law?

[woolfie]

I am sure your right with regard to English based banks.

I notice on the standard RBOS T&C's that any application of law will be under Scots Law as quoted below.

Governing Law
33 The terms and conditions of use of this website are governed by the laws of Scotland and any dispute regarding this website shall be subject to the exclusive jurisdiction of the Scottish court.

I have had a look at the t&c's for their other products and they read much the same.

[deemacperth]

You know if the Banks have an English address as their registration address which the majority of them do, you can bring the action down here. I.e if they are registed with the FSA with their HQ address (invariably an english address)

Plus you might find that the banks saved you a lot of bother by putting in the small print that English law prevails.

A lot of firms do that.

[ajs444]

So what court is the case heard in, if HSBC is in Leeds is that where case is heard, or to save travelling do we Scots lodge claims in Berwick on Tweed?

[Robertxc]

If HSBC are in Leeds you should file your claim at Leeds County Court (it might be Skipton County Court).

As far as I can tell there are two conflicting rules, which you can use to your advantage. On the one hand, you're supposed to sue in the court nearest the Defender. On the other hand, as a consumer you're entitled to sue in the court nearest you. I've done both and not noticed any particular difference (since they never defend it anyway).

They can of course challenge the jurisdiction, but to do that they have to actually put in a defence and attend court, which will cost them between £1000 and £2000 in legal fees, with no prospect of getting it back because it will be small claims. (If you think your lawyer charges you a lot, you should see what he charges your bank!)

[hlk01]

The fun begins.

We got an email back from HSBC, in answer to first letter - I was going to post it but there is a disclaimer at the bottom saying it may be 'legally privileged' and we should not cut or past it or disclose it any way.

Anway it just basically just gives us a case number and says they are investigsting and will reply more fully once that has been done.

Do I just ignore it and issue letter number 2 on the appropriate date ?

[Robertxc]

Absolutely. Your claim, your timescale. You've given them a deadline, so stick to it no matter what. Also, never, ever agree to discuss it on the phone (they might try this). Any call centre monkey you are ever likely to speak to has zero chance of having the authority to refund this sort of cash - so don't waste your time.

[hlk01]

Cheers, that;s what I thought. Need to go over to HSBC forum now - see what's been going on.

[hlk01]

Update - Fourteen days up. Just preparing LBA.

[scottishpol]

Very interesting........goodl luck!

[hlk01]

LBA posted.

[goforit]

I thought of this just the other day (before I had joined this board). You also note that by doing this you can get 6 years statute limitations rather than the 5 you get in scotland.

In actua fact I was thinknig about doing this against BOS/Halifax and RBOS. As they both have places of business in England I believe the English courts will accept Jurisdiction.

Cheers

[Robertxc]

In actua fact I was thinknig about doing this against BOS/Halifax and RBOS. As they both have places of business in England I believe the English courts will accept Jurisdiction.

I think you'll be unlikely to get away with it. you're supposed to serve the summons on their registered office, which for both these banks is in Edinburgh. Your only other option is to get an English mailing address.

[goforit]

Originally Posted by Robertxc

I think you'll be unlikely to get away with it. you're supposed to serve the summons on their registered office, which for both these banks is in Edinburgh. Your only other option is to get an English mailing address.

s42 of the Civil Jurisdiction and Judgements Act 1982 provides as follows:

s 42 Domicile and seat of corporation or association.

(1) For the purposes of this Act the seat of a corporation or association (as determined by this section) shall be treated as its domicile.




(2) The following provisions of this section determine where a corporation or association has its seat--

(a) for the purpose of Article 53 (which for the purposes of the 1968 Convention or, as the case may be, the Lugano Convention equates the domicile of such a body with its seat); and
(b) for the purposes of this Act other than the provisions mentioned in section 43(1)(b) and (c) .

(3) A corporation or association has its seat in the United Kingdom, if and only if--

(a) it was incorporated or formed under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom; or
(b) its central management and control is exercised in the United Kingdom.

(4) A corporation or association has its seat in a particular part of the United Kingdom if and only if it has its seat in the United Kingdom and--

(a) it has its registered office or some other official address in that part; or
(b) its central management and control is exercised in that part; or
(c) it has a place of business in that part.

(5) A corporation or association has its seat in a particular place in the United Kingdom if and only if it has its seat in the part of the United Kingdom in which that place is situated and--

(a) it has its registered office or some other official address in that place; or
(b) its central management and control is exercised in that place; or
(c) it has a place of business in that place.

(6) Subject to subsection (7), a corporation or association has its seat in a state other than the United Kingdom if and only if--

(a) it was incorporated or formed under the law of that state and has its registered office or some other official address there; or
(b) its central management and control is exercised in that state.

(7) A corporation or association shall not be regarded as having its seat in a Contracting State other than the United Kingdom if it is shown that the courts of that state would not regard it as having its seat there.
( In this section--
"business" includes any