Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default Defendant is going to contest jurisdiction?

    Happy new year all,

    I am starting a new claim against someone (leaving them nameless at the moment as I think they read this site). But I received a letter from their solicitor saying they acknowledge the claim but will be contesting jurisdiction. I live in Scotland and the company I took out the finance was in Scotland but each time I wrote a letter (Prelim / lbaicon and any serious complaint letter ) I got a reply from an English address.

    I had the papers served on an English address.

    do I simply write to the court telling them why I opted to go for an English court?

    The T/C are also writtne under English Law and the CRA info stored is also an English address.

    Thanks

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  2. #2
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    Default Re: Defendant is going to contest jurisdiction?

    Unfortunately it is difficult to help you without you naming the company concerned.

    The defendant must be based in England either at the time the contract was signed or currently, or that the contract was signed within England.

    You cannot use English law when they only have an office in England.

    There may be ways round this but without further information it would be very difficult to know.

    If it helps, so far we have had no trouble with people naming the banks/institutions and so far the banks haven't used it against any member and would be very unlikely to in your case.


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  3. #3
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    Default Re: Defendant is going to contest jurisdiction?

    I believe you are always supposed to either use your local branch address or their Edit i meant registered office

    I would always recommend the registered office, if this is in england then i don't see they have a claim.

    If you haven't served it either your local branch or the registered office then they may have a case i believe.

    FWIW local branch is always dangerous for serving claims because some people may take this to mean any branch which is convenient to them rather than the one closest to them.

    JMHO

    Glenn

    Kick the shAbbey Habit

    Where were you? Next time please


    Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
    Abbey 2nd claim, two Accs - claim issued 30-03-07
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    Default Re: Defendant is going to contest jurisdiction?

    the company is Blackhorse whose registered office is in Cardiff but every reply I have received back even when I have sent a letter to my local office, is sent from the Cockfoster address in Barnet.

    My local office is in Scotland, this is where I signed the latest document (not included in the claim) but previous contracts were signed at home and posted in.

    Thanks


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    Default Re: Defendant is going to contest jurisdiction?

    Quote Originally Posted by debt_mountain View Post
    the company is Blackhorse whose registered office is in Cardiff but every reply I have received back even when I have sent a letter to my local office, is sent from the Cockfoster address in Barnet. I believe that you should have used the cardiff address.

    My local office is in Scotland, this is where I signed the latest document (not included in the claim) but previous contracts were signed at home and posted in. I dont believe this has any bearing on where you file your claim.



    Thanks
    Hold on a mo, i presumed you were suing then in an english court, are you suing them in a scottish court?

    If so ill bow out because i havent looked at scots law in this respect.

    Glenn

    Kick the shAbbey Habit

    Where were you? Next time please


    Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
    Abbey 2nd claim, two Accs - claim issued 30-03-07
    Barclaycard - Settled cheque received
    Egg 2 accounts ID sent 29/07
    Co-op Claim issued 30-03-07
    GE Capital (Store Cards) ICO says theyve been naughty
    MBNA - Settled in Full
    GE Capital (1st National) Settled
    Lombard Bank - SAR sent 16.02.07
    MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
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    Default Re: Defendant is going to contest jurisdiction?

    Glenn I am suing them in an english court.

    Got the letter today saying the judge was going to review the request blackhorse made to have the case kicked out for me being in scotland but claiming in england.

    Is there anything I can do to prevent this? The papers were not signed on blackhorse property, always posted to my home and as I was travelling a lot I will have signed them in England and posted them there. Can I use this as a cause for it being in an english court?

    the agrement does say that it is english law so does that men I can chiise if it is to be heard in england or scotland?

    any more ideas?


  7. #7
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    Default Re: Defendant is going to contest jurisdiction?

    i think that you have to reside in england to sue in england and so its normal to 'have' an english address for the service of papers.

    Im not an expert on this issue have you asked in the forum specific to the scottish claimants?

    Glenn

    Kick the shAbbey Habit

    Where were you? Next time please


    Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
    Abbey 2nd claim, two Accs - claim issued 30-03-07
    Barclaycard - Settled cheque received
    Egg 2 accounts ID sent 29/07
    Co-op Claim issued 30-03-07
    GE Capital (Store Cards) ICO says theyve been naughty
    MBNA - Settled in Full
    GE Capital (1st National) Settled
    Lombard Bank - SAR sent 16.02.07
    MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
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    Default Re: Defendant is going to contest jurisdiction?

    Thanks Glenn

    Surely if that is the case then the english court should reject the claim and not take the money?

    I will ask in the scottish section.


  9. #9
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    Default Re: Defendant is going to contest jurisdiction?

    I went into the Scottish section and the GovanLawCenter and got some info on jurisdiction

    I will be sending this off late afternoon so any comments before then would be good?

    thanks

    So in addition to my initial letter (at bottom of this post) I will send the following--

    Dear Sir/Madam

    Thank you for your letter of 15th January 2007. Further to my letter of 3/1/7 I would like to request the court consider the enclosed information when reviewing the defendants application for an order challenging jurisdiction.
    1 – It is my understanding that the rules on where I can raise proceedings (jurisdiction) - are set out in the Civil Jurisdiction and Judgments Act 1982, as amended by the Civil Juridiction and Judgments Order 2001. Schedule 4 of the 1982 Act (as amended) regulates the court's jurisdiction over consumer contracts. This includes a consumer's bank or building society account.
    Importantly, para 8 of schedule 4 provides that a customer is entitled to sue their bank where they live (where they are 'domiciled') or where the bank is domiciled.
    A company 's domicile is usually established from where it has its 'seat', that is usually its 'registered office' or the place where its central management and control is exercised: section 42, 1982 Act. Blackhorse’s registered address is in Wales but all communications received regarding my claim have been sent from one of their English addresses - 116 Cockfoster Road, Barnet,EN4 0DY.


    2 – Should the defendant be trying to claim that a clause in the terms and conditions of the agreements state that, as I have a Scottish address, then the agreement is governed by Scottish law, then I believe that does not confer exclusive jurisdiction.
    Paragraph 9 of Schedule 4 allows parties to agree that one part of the UK has 'exclusive jurisdiction'. That is known as 'prorogation' of jurisdiction. In other words, that proceedings must be raised either in England, Scotland or Northern Ireland.
    In general, paragraph 9 can only apply if both you and your bank were domiciled in the same part of the UK when the account was opened (i.e. either both in England/Wales, or both in Scotland, or both in NI) and the contract contains a clause conferring exclusive jurisdiction to one part of the UK.
    Firstly, such clauses do not deal with exclusive jurisdiction - they simply deal with the application of common law rules. The courts have held that such clauses do not go far enough to confer exclusive jurisdiction.
    For example, in the case of McGowan v. Summit at Lloydsicon 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.
    I also believe that any such clause in an agreement is an unfair term of contract in terms of UTCC Regulations 1999. Paragraph 1(q) of Schedule 2 to the 1999 Regulations provides as follows:
    SCHEDULE 2
    INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR
    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.
    CIVIL JURISDICTION AND JUDGMENTS ACT 1982 AS AMENDED
    SCHEDULE 4 AS AMENDED BY CIVIL JURISDICTION AND JUDGMENTS ORDER 2001
    Jurisdiction over consumer contracts

    7. - (1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this rule and rules 8 and 9, without prejudiceicon to rule 3(e) and (h)(ii), if -

    (a) it is a contract for the sale of goods on instalment credit terms; or

    (b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

    (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled or, by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and the contract falls within the scope of such activities.

    (2) This rule shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation, or to a contract of insurance.

    8. - (1) A consumer may bring 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.

    (2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the part of the United Kingdom in which the consumer is domiciled.

    (3) The provisions of this rule shall not affect the right to bring a counter-claim in the court in which, in accordance with this rule and rules 7 and 9, the original claim is pending.

    9. The provisions of rules 7 and 8 may be departed from only by an agreement -

    (a) which is entered into after the dispute has arisen; or

    (b) which allows the consumer to bring proceedings in courts other than those indicated in those rules; or

    (c) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same part of the United Kingdom, and which confers jurisdiction on the courts of that part, provided that such an agreement is not contrary to the law of that part.

    For the above reasons I would dispute the defendants rights to contest jurisdiction.


    The original letter I sent was--


    I have received a letter from the defendants solicitor informing me that they are intending to contest jurisdiction for this case.

    I would like to detail why, although I live in Scotland, I have chosen to serve papers on the defendant through an English court.

    1 – All replies to my correspondence asking for our personal dataicon not to be shared was replied to from the Cockfosters address.
    2 – All references in the credit reference agencies systems state an address in Wales.
    3 – Any letter of a serious nature sent to my local office was forwarded to an English address by the local office and the reply was sent out by the English office.
    4 – The terms and conditions document attached to each agreement was in English law.

    I have a very detailed file of every communication sent to the defendant and a copy of their reply, detailing what address they have replied from.

    For the above reasons I would dispute the defendants rights to contest jurisdiction.


  10. #10
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    Default Re: Defendant is going to contest jurisdiction?

    As i said i am no expert and this looks good to me.

    Glenn

    Kick the shAbbey Habit

    Where were you? Next time please


    Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
    Abbey 2nd claim, two Accs - claim issued 30-03-07
    Barclaycard - Settled cheque received
    Egg 2 accounts ID sent 29/07
    Co-op Claim issued 30-03-07
    GE Capital (Store Cards) ICO says theyve been naughty
    MBNA - Settled in Full
    GE Capital (1st National) Settled
    Lombard Bank - SAR sent 16.02.07
    MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
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  11. #11
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    Default Re: Defendant is going to contest jurisdiction?

    Got a letter today from Blackhore, I have added it to my Blackhorse thread.


  12. #12
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    Default Re: Defendant is going to contest jurisdiction?

    There is no reason why your case cannot & should not be heard in England.

    Also if they have expressed their contract to be subject to English Law I can't understand what they are playing at other than they are hoping to put you off by claiming they can litigate in Scotland where the costs regime kicks in much sooner.....after 750.....Obviously someone at BH needs to read their own agreements.

    Pass their fancy Newport offices regularly & take great pleasure, at rush hour (or as I prefer crash hour) in not letting them out into the busy flowing traffic. In fact I go out of my way whenever lawfully possible to block their passage.....& being a mean sod it gives me great pleasure

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  13. #13
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    Default Re: Defendant is going to contest jurisdiction?

    got a copy of an order from Morpeth Judge telling Blackarse to get a copy of each agreement to him is 2 weeks. Guess the jurisdiction stuff has passed for the time being.



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