Hi guys, apologies first of all for posting a thread in the main LTSB forum and one here as well, but I am in desperate need of exposure and of help.
Now my claim is currently sitting at around 12k. 6.5 in charges and the rest in contractual interest. Just to make matters a little more complicated for myself I have decided to pursue a claim for consequential losses as well. You can follow the "discussion" in my main thread, at the moment though I am totally stuck on Scottish Law. How backward is this?????
For claims over £1500 I need a solicitor, I doubt a solicitor would pursue damages.
Other option is going through the FOS, now does anyone know if the FOS can also pursue a claim for damages? I don't think so but I would appreciate confirmation on this one.
Also, just to make matters even worse, LTSB's terms and conditions state that if the account was opened in Scotland I have to go through Scottish courts.
Based on the govan thread I can summarise as follows:
Quote:
3. The claimant contends that this confers advantageous terms to the Defendant, as per Paragraph 1(q) of Schedule 2 of the 1999 Unfair Terms in Consumer Contracts Regulation 1999 (hereinafter referred to as the UTCCR).
1(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
I am interpreting "take disputes exclusively to arbitration". The options so far in scotland are through the FOS (they would never argue damages for me) or through a court of session for which I need to be repressented by a solicitor (again, judging be previous posts, no legal representative would take this case on)
4. The Claimant contends that such clause does not deal with exclusive jurisdiction and as per Section 4 Paragraph 8 (1) is allowed to bring court proceedings against the other party to a contract either in the courts of the part of the United Kingdom in which that party is domiciled, or in the courts of the part of the United Kingdom in which the consumer is domiciled.
For example, in the case of McGowan v. Summit at Lloyds 2002 SC 638, 2002 SLT 1258, an insurance policy contained a clause which said: 'this Document shall be governed by the laws of England, whose courts shall have jurisdiction in any dispute arising hereunder'. An action was raised in Scotland and Lloyds defence was the case was incompetent as the Scottish courts had no jurisdiction in light of the clause. However, the Inner House of the Court of Session (Scotland's highest court) held (applying the English case of S&W Berisford plc v. New Hampshire Insurance Co Ltd [1990] 2 QB 631) that the clause did not create exclusive jurisdiction in England, and only created concurrent jurisdiction i.e. proceedings could be raised in either Scotland or England in terms of the clause and the 1982 Act.
In the English High Court case of S&W Berisford plc (cited above) a clause in an insurance policy stated that 'This insurance is subject to English jurisdiction'. Justice Hobhouse (as he then was) held that those words 'were inept' to create an exclusive jurisdiction clause. |
Regarding the wording of the T&C (Scots Law for Scotland)
The earlier cases were argued that as the jurisdiction is not labelled "exclusive" that this can only amount to co-jurisdiction and hence under the Jurisdiction act I can pursue the case in either courts.
My interpretation of this goes down the case of as I am resident in Scotland they can only bring me to court in Scotland, whereas for a law suit (are bank charges classed as a law suit? Silly question but really important for me) I can go for any court.
That's pretty much it, any input on this would be appreciated.
As always, thanks alot guys n'gals....
RedDeath&614 vs LTSB Scotland 
