No stays in Scotland

[BankFodder]

JASON COLEMAN+AARON THOMSON v. THE CLYDESDALE BANK+THE BANK OF SCOTLAND, 07 September 2007, Sheriff D. Pyle

[Robertxc]

**UPDATE**

 

A couple of weeks ago the Sheriff Depute, who is in charge of all the sheriffs in Scotland instructed that ALL bank charges claims are to be sisted pending the outcome of the OFT case in January.

[Bigmac versus]

Hardly surprising unfortunately, thx for update.

[lammy2203]

Is it worth me going into court tomorrow then to oppose a sist in Dumbarton.

How can a decision like that be made especially when all the facts state that there is you cannot sist a case pending the outcome of a similar one. Me thinks that the tide is slowly turning in the banks favour.

[lammy2203]

Spoke to a guy on this site who opposed a sist in the sheriffs court at greenock and won so maybe this is not necessarily true, said the judge blew the banks case out of the water

[Robertxc]

Spoke to a guy on this site who opposed a sist in the sheriffs court at greenock and won so maybe this is not necessarily true, said the judge blew the banks case out of the water

When was this?

[Bigmac versus]

bump

[lammy2203]

From a user called nmcnelis who won his case on Monday at greenock dont know how to get you a link to him

[lammy2203]

Well the judge has granted the sist which i thought he would when after using the arguments from the GLC and the case in inverness he said that he was aware of the inverness case but had a different opinion than the sheriff there.

He also said that whilst he is aware that i am frustrated he wanted to wait untill the OFT case was finalised.

I said that that case was not binding in scottish law and although he agreed he felt that it would filter down to here or words to that effect.

 

He felt that if he did not grant the sist then it would be almost certainly appealed which would waste valuable court time plus more expense for me.

 

So i guess i will just have to wait a bit longer but i personally think that my chance has gone as the high court will probably side with the banks

[Bigmac versus]

Hi lammy2203 keep your chin up the test case is due Jan/Feb next year it may rumble on with appeals but really should go the consumers way.

[lammy2203]

Thanks for that, i am fine just hoping that the test goes the right way and i can wait a litle longer. When the sheriff said that he didnt want the court time wasted i nearly laughed because by god they will be busy if the test case goes against the banks. My feeling is you will just apply for your money back through the banks and the halifax seems to have changed its fees. It is now £30 for them to pay something if you have not enough money in your account, this then takes you over your credit limit which the then charge you another £28. So In theory if you have £10 in your account and you have a DD coming out for £11 that takes you £1 over your limit you will be charged a total of £58.

Thats not right

[Bigmac versus]

We all agree and that is why we welcome this test case as it will avoid the huge efforts required to have returned what was unlawfully taken.

When the case comes out i suspect the banks to settle all claims without the need for court action, they had better do.

[Douglas52]

Ladies and Gents

 

Is it time to play the SNP card in Scotland?

Should we write a letter to the SNP Justice Minister Kenny MacAskill and the First Minister? Remember they acted quickly to put up the small claims limit.

 

How about something like this:

 

The Scottish members of the Consumer Action Group are deeply dismayed at the Depute Sheriffs decision to sist all cases where the pursuer is reclaiming bank charges. This gives us grave concern for the following reasons:

 

1) There are many cases where the pursuers are not well off and these charges represent a significant financial penalty. As a result of this decision they will be unable to obtain a judgement for many months, if not years given the early stage of the OFT test case. In the meantime the defenders are free to continue applying charges to the pursuers accounts even though these charges are in dispute and may prove to be unlawful. This is clearly against what any reasonable person would consider to be fair and equitable.

 

2) The OFT test case is being heard in the English High Court. Does this mean that the independent Scottish Legal system is now subject to English case law and are the SNP prepared to ignore this clear threat to the independance of the Scottish Legal system? Please refer to the following article from the Govan Law Centre:

http://www.govanlc.com/sisted.pdf

 

We are requesting that you take the following actions:

 

1) Instruct the depute sheriff to reverse this decision. If this is not possible because of the independence of the judiciary then enact appropriate legislation to have the same effect.

 

2) In any event enact legislation to stop banks applying charges until the OFT test case precipitates proper rules on charging. Perhaps a limit of £1.00 per item would be reasonable and reflect the real costs to the defender.

 

We trust that you will act in the best interests of the Scottish consumers.

 

 

 

Any comments- see the Govan Law Centre article - it suggests this decision is rubbish. Could Mike Dailly help us draft this letter because I'm not sure what the politicians can actually instruct the judiciary to do.

 

 

:? :-|

[Bigmac versus]

Like the idea.

[lammy2203]

A very well thought out note and it sounds good to me

[texel]

Great idea. Perhaps one of you experts could get up a protest that we could all sign and send to the authorities;)

[Douglas52]

I think this is better done person to person. I can scribe something to MacAskill from myself on a personal basis but I need some advice on what the executive (sorry government) can/cannot instruct the judiciary to do. Also I certainly do not have the authority to write on behalf of CAG.

[tweenies2]

Thankfully the judiciary is separate and independent from the executive. Thus can not be influenced by whichever party is in power . Yes the executive can legistlate and may be lobbyed in order to reach a favourable conclusion for whoever is doing the lobbying. Unfortunalty the legaslative process from Bill to an act of the scottish Parliament can take anything from 9 months to a year or longer. A Private members bill can be made by almost anyone(remember ELaine C Smith ) however the process is slightly different. In respect of the limit in the small claims courts being raised , this was as a the result of the McInnes report commisioned in 2001, Therefore you can see how long the process is to make any changes.

 

I am not saying it is not worth trying, anything is, but be prepared for the posiibility to be let down; sorry to be so negarive just think you need the all the facts

[Bigmac versus]

Just being realistic tweenies2 but to highlight how unfair this seems would be just enough, the case is due Jan/Feb but could rumble on with appeals/hearings for some time.

[Douglas52]

I agree with tweenies2 I expect the judiciary to be entirely independent of the government. (That's fundamental to true democracy!)

However can they not ask for a judicial review of the descision at the highet level? I would have thought this could be requested by the government? Again I'm not sure of procedure here so more advice please. - My real concern is some of the sad stories on this site and watching the banks getting it all their own way.

 

As Big Mac says the case could rumble on for ever and I still think the SNP would see the 'indpendent' slant on this type of issue as adding to the importance thereby acting on it more quickly.

 

I'm not worried about being disappointed- I think we should act on any reasonable proposal provided it does not damage the case in general. (But I still need to be convinced my proposal is reasonable) More comment/discussion please.

 

I am also having problems finding the decision by the 'sheriff depute' and if the position actually presides over all sheriffs in Scotland can anyone help?

[Govan Law Centre]

There is no Sheriff Depute is Scotland - there used to be years ago. Perhaps Robertxc reference is to a Sheriff Principal? Scotland is divided into six sheriffdoms and all of the sheriff courts and sheriffs within each Sheriffdom is administered by a Sheriff Principal. The Sheriff Principal also hears appeals from decisions of sheriffs in civil actions.

 

Apparently the banks (in their usual arrogance)wrote to the Scottish Courts Administration Department (the civil servant wing of the courts system) to say in light of the OFT case in London they would be seeking to sist (stay) all cases in Scotland. I haven't seen this letter but anyone could ask for it under the Freedom of Information (Scotland) Act 2002 - the request should go to the Scottish Administration Dept. And this is the source of the confusion.

 

For example, I appeared in a bank charges case at Glasgow Sheriff Court recently where the bank was represented by counsel. After waiting almost 2 hours we got started and the sheriff said there was a Sheriff Principal 'Practice Note' saying all bank charges cases should be sisted. So that was that. However, when I went back to the office and called for a copy of the Note, it transpired there was no Practice Note.

 

Govan Law Centre has since written to the Sheriff Principal at Glasgow who has very kindly confirmed there is no Practice Note. Sheriff Principal Taylor advises that every bank charges case needs to be individually considered by the sheriff with regard to the particular facts and circumstances of the case. So there can be no 'blanket' stays in Scotland. Our case will call again in 3 weeks. Sheriff Baird at Glasgow has already permitted a bank charges case to proceed.

 

In addition, cases have been allowed to proceed at the following sheriff courts: Elgin, Inverness, Greenock, Edinburgh and the borders. Apparently a proof (trial) was fixed in Elgin last week and the bank settled. We have a proof next week in Inverness and there is a proof at Edinburgh in early November.

 

The Consumer Action Group and MSE are of course supporting various other case strategies in the UK - and GLC is very grateful for the expertise and support of colleagues at CAG & MSE. Its true to say that things have got tough for us all following the OFT case, but I think we have some good chances to make a break through (notwithstanding the OFT case).

 

Mike

Govan Law Centre

[Bigmac versus]

This sounds very bad the fact the sheriff principal said there was a 'practice note' yet you have it confirmed none exsists.

I hope this helps the campaign in Scotland move on to another level and look forward to this becoming the norm with any case in Scotland.

[Govan Law Centre]

The Sheriff Principal confirmed there was no Practice Note - so this is good news.

 

I suspect the reason the sheriff (a part-time sheriff) mistakenly thought there was one, was perhaps related to the confusion created by the banks lawyers who took it upon themselves to contact the Scottish Courts Department with the suggestion of stays; the Department in turn circulated this correspondence.

 

We can now be clear there are no blanket stays (sists) in Scotland.

 

Mike

[Bigmac versus]

Great news Mike and as for the sheriff they really should know better than to assume this to be the case, thankfully you didnt.

What about the countless people who have had cases where a sist has been granted.

 

George

[Bigmac versus]

So for any cases in Scotland should we be advising the following then.

 

Govan Law Centre have in writing from the Sheriff Principal at Glasgow that there is no Practice Note. Sheriff Principal Taylor advises that every bank charges case needs to be individually considered by the sheriff with regard to the particular facts and circumstances of the case. So there can be no 'blanket' stays in Scotland.