Basically that 1)this test case refers to English law and not Scottish law therefore it should be up to a Scots court to run it's own test case if it so wished, otherwise proceed with the case according to law and not deny it 2)As no definative timescales could be concluded it was improper to sist as this again was denying me the right to legal course based on a case which was most definately to run possibly over the course of a year or so Didn't wash with the Sheriff though, but I'm looking for angles on this one as I for one have just about had it again with the banks - if I would have had presence of mind at the time I'd have asked for a suspension of all possible bank charges but I might do this if I return to try and lift the sist!

Hi guys again, my question is quite simply can we force a court to a point of law in insisting that they lift a sist purely based on the fact that there still is no definitive outcome on the OFT test case. Given the nature of law and the many interpretations that often develop from one case to another finding a particular point is obviously difficult but my understanding of a sist is that it is "improper" to sist based on any case which has no definitive timescales and given that the OFT case was already delayed it's now being said that it could go on for many months to come and even when a decision is reached it will be apealed anyway further prolonging the matter!. Can anyone suggest a course of action as I personally would be prepared to return to court with an arguement as I was advised at the time of sisting by the sheriff (based on my argument that the case could take some time) that they would consider looking at the case again if it appeared to be taking too long. Thanks in advance. Marko

First off, I would cancel all the direct debits on the old account because if there is no money going into the account then each month you'll incur a charge if there are insufficient funds. Secondly, I would phone the bank and tell them you will make a manual payment on time each month for the loan (from the new account or by debit card) until this matter is sorted. Thirdly, because you attempted to do the right thing and change the payment dates in the first place to avoid this very thing happening explain to RBOS that you do not accept their charges nor do you accept the fact that 2 payments would have to be made and you require precise details on where in the contract it stipulates that 2 months payment would be required under the circumstances. As a last resort, and it may be a case of calling their bluff, you could attempt to use the Direct Debit Guarantee scheme rules with RBOS and tell them because THEY contributed to the due date failure then you are covered under the scheme and as such you are entitled to a full and immediate refund of monies wrongly taken from your account (i.e. charges, and so on). The last option would definately be "chancing it" although if you can fight your corner strongly enough and make THEM believe it was all their fault you could have the charges cleared there and then!. Here's hoping!

I dont think threatening the banks will do anything as they are by now fully aware of the fact that some courts are sisting and some are not, and in any circumstance they will take their chances in court at a preliminary hearing and even if the sheriff doesn't sist they can then just payout (eventually) - to be honest I would myself probably just get the paperwork in and at least have it in the system and take my chances with the sheriff, you never know they might actually allow the case to go forward in which case you can expect a payout just before the case comes back to court!.

Yep, that's about the norm at the minute, and to be honest it's up you whether you want to take it to the court anyway or not. I did actually get my day in court, although the bank didn't even bother to turn up and just asked for the case to be "sisted" which the sheriff agreed to, despite having argued my case that this was an English test case and should not be upheld in any way by a Scottish court. Basically, I was wasting my breath as I believe the sheriff was always going to sist it anyway. If you do go ahead and raise a case, it's more or less up to each individual sheriff as to how they proceed with it - some are sisting the cases, some are not. If you are lucky enough to get a sheriff that won't sist the case chances are the bank will pay before it goes back to court, although you will have to attend court for the prelimanary hearing where the bank will most probably request it be sisted. The other matter is having had the letter from the bank, the court may not be too pleased with you by still going ahead and raising a case (again, this is just personal opinion from each individual sheriff) although the worst that can happen is that they sist the case anyway although you could obviously use the arguement that this is a test case running in England and that this shouldn't apply to the Scottish courts, although this didn't cut any ice in my case at Airdrie Sheriff Court!. it's always good to get your claim in I suppose and then let the legals fight it out, but do follow the sound advice on this board regarding raising your claim and follow each step to the letter! and good luck!!

Hi all and sorry I didn't reply sooner, my mail notification wasn't working and only just today realised you guys had replied!. Anyways .... * gemspan, thanks for the words of encouragement * rory32, I only just (in the last couple of days) received a bog standard blah blah OFT blah blah letter from the bank merely explaining the situation although I have never received any official documentation regarding their defense other than the "minutes" which stated "intend to defend" - even at the court itself, no defense was entered, merely that they wish to "sist" the case * lanster, like all contracts they can be interpeted either way although remember that our fight isn't with the banks terms as we all know we have to cover their administration cost's when a DD is returned and so forth, but our fight is against the amount they are charging for their adminstration costs and the fact that we are asking them to appear before a court to JUSTIFY these charges. The fact that they are so high (£39 in my case for the Halifax) led the OFT to believe they were penalty charges which are unlawful as their charge to us is disproportionate to their costs and so they profit from it. If you already have a date to attend I would go and argue the toss cause you might be lucky to get a sheriff who actually understands and appreciates that Scottish law is here for a reason, to serve Scotland and as no test case is running in Scotland I still don't understand how they can possibly "sist" cases based on an English case! * daftdebt, if this is the first your case has been heard, like lanster, I would go anyway cause if you don't it will most probably be sisted in your absense, although again, as above, I think it really comes down to each individual sheriff which buggers me even further! What really gets to me is that for hundreds of years we have heard how Scots law is unique both in it's approach and values from the law men, sheriffs, lawyers, etc etc although when such a high profile case comes to light Scots sheriffs run and hide behind an English "maybe" "possibly" "dunno" - surely there is something that we can do to force these scots courts to sit up and hear these cases?

OK, so I went to court today (Airdrie Sheriff Court) and I was the first to present my case to the Sheriff in regards to the banks request to sist the case (freeze) until the OFT test case has been sorted. At first, there was no representation for the bank other than a letter and the sist which they applied for although I was then approached by a court official (wiggy bloke) who explained he was now acting on HBOS bahalf and asked if I was using the infamous Cohen & Clydesdale routine to which I explained I was, this together with the fact that this is an English test case and most probably not appicable in Scotland. Reading extracts from the PDF from The Govan Law Centre on how it is improper to sist a case and that if appealed the OFT case could continue for many years the sheriff explained that they would nevertheless wish to see how this test case got on as they wanted to take things one step at a time and if the test case was to be appealed or otherwise postponed then I could return and ask for the sist to be removed at that time. Basically, their defense has been thought through and they seem to be better equipped than they ever were, so my advice to anyone trying to raise a claim is to hold off until the test case or your trip to court will be a wasted one!!!

gemspan, thanks for the reply and I was thinking much the same thing, but I've been going over my paperwork and I've realised I claimed 6 years instead of the 5 for Scotland, so I hope it's nothing to do with that but I read with interest a possibility of a 20 year claim which I don't think has been tried or even tested so no argument there me thinks!. Hopefully it's just a case of turning up, no bank, default, and bobs your uncle but as I have no news on their defense I'll have to try and cover myself for any eventuality they could defend themselves on .... I'll obviously post back on Tuesday with an update so here's hoping!

Been away from this forum far too long now, good to be back! I submitted a small claim for around £700+interest which is due in court on Tuesday (4th September 2007) and concerns a Halifax credit card and 2 bank accounts I've had with them also and as I heard nothing from them I guessed they would simply pay up eventually, although today I received a minute sheet with the words "intends to defend" which has stumped me. I phoned the court and asked if they had any details of the defense as I have received nothing from Halifax though they said they didn't, just the fact they intend to defend!. I might be wrong, but reading other threads it may simply that they intend on asking the case to be postponed pending the OFT test case although reading the Govan Law Society statement on this test case it would appear it's possible to claim this case as irrelevant given it's primarily based in England and that the conclusion is not imminent and is in fact in all probability not going to be heard for over a year or more. I'm slightly concerned about facing a court as I've never done it before and although I can give as good as I get it still is a daunting prospect. I'm curious to hear if anyone else has had such a response and if so what the outcome was, and please any advise greatly received!. Cheers

BenKing, I assume that the amount owed was actually £728.68 in which case I wouldn't waste your time in trying to recover any balance on the judgement as I personally would think you'd have a hard time recovering it (if it was indeed owed). If you received the CCJ after the default notice expired (I think you get something like 14-28 days to pay) then there is little chance of having it removed and it will probably be on your file for around 6 years or so. Your only option is to ask Capital One nicely as you have since settled the account - they may or may not agree to remove it, though I wouldn't hold my breath to be honest. Unfortunately, CCJ's are one of the hardest things to have removed from your file simply because they are put their by a court and can only usually be removed by such, either at the direction of the company concerned or by the court themselves if they feel it appropriate although this is usually in extremely rare circumstances!. Try writing to CO and see what they say, but remember you may have to be agonisingly nice to them!.

Hi guys, I haven't been on the forum for a while now what with work and stuff but got myself some free time at the moment so looking forward to taking those rip off banks to the cleaners again!. By the way, I still owe this board some dosh from my last successful claim . . . will square up on my next payout. Anyways, I have had an interesting few weeks chinny wagging would our friend Mr Udy who very kindly informed me on request for my charges to be refunded, that I still owe Capital One the sum of £235.51 after my account was passed to NCO (debt vultures). I promptly informed Mr Udy that this account was settled in 2004 after NCO offered me a final settlement amount of £235.51 on the amount £471.02. Since that time I have not heard a thing from either party and on paying the amount I requested that NCO confirmed the arrangement in writing which they agreed to do. Some time went by and I heard nothing, though felt assured by this fact as if it hadn't been settled Capital One would have no doubt been on my back. 2 years on and after asking for my charges back I now find that Capital One claim this payment I made was merely "partial payment" and that the account is still due to be paid. They offer to refund me £281 and take £235.51 for the outstanding amount, leaving a balance of £45.49 to be paid to me! HA, don't bloody think so!. Here's the way I see this situation, and please let me know what you all think. I entered into a verbal agreement with NCO in November 2004 to pay £281 in full and final settlement of the account which was sitting at £471.02. I was sent no further communication from either NCO or Capital One since that time, further substantiating my claim that this matter was settled in full at that time.. Also, shortly before making this payment, I was subject to a debt management plan under the Consumer Credit Councelling Service and to pay an amount such as I did having only just some off the plan would make no sense at all, unless that is it was of major benefit to me (i.e. being told to pay this and the account would be settled!). Furthermore, for Capital One to only NOW say I owe them money when I approach them surely is an admission from them that they were satisfied with the account previously and only now because I am making a claim against them do they want this "supposed" amount repaid!. I have since drafted a letter to Mr Udy explaining these facts and warning him that he should refrain from subtracting any monies from the amount claimed otherwise the case will be allowed to continue to court where I have suggested they should either counter claim me or raise a seperate action regarding the amount owed. I know this might sound a bit "c'mon then!!" but I am so annoyed with them after having pratted myself a month before Christmas in 2004 to settle the account only to find now that I probably shouldn't have bothered and should have stuck to normal payments!. I don't believe also that they would have the bottle to counter claim me, as they would then not only have to explain their actions in having left this matter for so long, but the actions of NCO by misleading me big time!. Any advice or suggestions greatfully received. Marko

tam, for a start I find it unusual that the court should be asking you about jurisdiction as they themselves should be fully aware of the facts on taking action and not putting this responsibility on to you!. The advice I was given by the clerk when pursueing Halifax was to make a note at the end of your statement on the form along the lines of "Payment is to be made to me in [your town], therefore this court has jurisdiction". I wouldn't have thought it was paticularly relevent that Capital One are based in England!. At the end of the day, the court clerk should be able to offer any advise you seek and if they can't ask to speak to someone who can. Hope this helps (god I've been away from this board for too long, need to update my posts!!!)

Guess it wouldn't be worth the risk trying to argue that point in court as they would probably think it "reasonable" you should know that £xxx appearing in your account isn't Santa come early!. Swings and roundabouts on both sides of the coin I think, although the fact is if you have spent some or all of the money or just even withdrawn it, then they will be quick to note that and will no doubt take great pleasure in letting the judge know this if you did decide to go back and challenge them about the 8%. The only way out of that I reckon could be to say that you were expecting a deposit from somewhere else and you thought that was it, though this could just open up another can of worms so to speak!. End of the day fruitycar, I guess you have to decide whether you can take the court on in their decision which is a tall order to be honest, though if you can possibly quote other similar cases which have went to court and successfully won their case with 8% interest (although I don't know of many which have actually went to court!) then this may be enough to convince a judge to rule in favour of you - unless of course you get the same judge as last time :???: Cheers Marko

fruitycar, the point I meant was that simply because they paid it straight into your account meant you couldn't accept or decline, basically if they want to put £xxx into your account you haven't accepted nothing (until you spend it I guess). If you havent spent it then as far as anyone could be concerned how could you possibly have accepted it???. If, on the other hand, they had sent a cheque and you had deposited it to your account, this would be different!!. Cheers Marko

I personally would think there is grounds for redress here fruitycar, although I guess it's merely a matter of whether you can justify raising any form of appeal and whether you could see this through. I'm not sure what the procedure is to be honest, although I would have thought it is pretty straight forward considering it's based on a small claims. Regardless though, remember you would then be challenging the decision of a court, and in particular this narrow minded judge!. If you received the charges back from the bank in the form of a deposit in your account, then as far as I see it you still didn't accept their offer and no case was settled and the judges comments regarding "cashing the cheque" are irrelivant and bear no ground on this case. If this is something you feel strongly about, then at least make enquiries about it so you know what's involved, although if the prospect of challenging a court's decision doesn't appeal to you then I would probably cut my losses, although in the same breath this could then set precidence on your next claim (i.e. you never got 8% on your last claim, so why should you get it on your next claim!!!). Personally, as long as it wasn't too expensive, I would definately challenge the award of the court as it is not unreasonable to ask for 8% interest and this is in fact what a small claims recommends!!! Cheers Marko

Hi guys, I did have a thread on the main section of this forum although thought it more relevant to post my case here as my case is in Scotland. Anyways, I have a total claim pending for £1027 across 2 accounts with the Halifax although made a claim for 1 account today for £405 and will submit my second claim once this has been dealt with. It can be a bit of a puzzle when completing the forms and all, but once you get your head around it all it's not too bad at all, and if in doubt at all ASK at the Sheriff Court for advice as these guys are only too happy to assist as they would rather you got it right first time than them having to return your papers and have you correct anything!. Obviously, they cannot comment on your case in particular, but can offer assistance on the correct way to complete the forms - basically I took my completed form to them and asked if they could have a quick look and advise of any discrepancies to which I found the sum I was claiming SHOULDN'T include the actual amount of the interest but instead should only be the amount of CHARGES claimed with the usual line after it saying "with interest on that sum at the rate 8% annually from the date of service for each charge". Anyways, will keep everyone informed of the progress of my claim!!!. Cheers Marko

fruitycar, as somewhat of an afterthought, and probably of no consequence now anyway but I feel it's probably got to be said that the legality of the judges actions were probably questionable as well, simply due to the fact that his job isn't necessarily to "pass judgement" but to make certain the case is heard and adhered to from a legal perspective. Granted, he might have thought it wise for you to "quit while you were ahead" so to speak, although based on the law (which he would or should have been familiar with) it should have went without saying that the 8% interest charge is a fair recourse, not to mention a common one so why he had a particular problem in this I cannot for the life of me understand. Secondly, and in my opinion probably more relevant to his job was the fact that the bank were not questioned about their intentions in trying (rather foolishly) to bring the case to an end by claiming it had been settled. I would have thought even someone as narrow minded as this judge in question would have took offense to this kind of action by the bank and at the very least made them squirm a while in laying down the law!!!. You never know, maybe your judge had shares in your bank or something, but in my opinion he definately wasn't acting with the diplomacy and professionalism one would expect of a respected judge!. Well done again though and my claim went in today also, so here's hoping!!!!. Marko

That's the fella!!! Confirmed it today myself when I went to the Sheriff Court to start my action against the Halifax. It is definately the sum WITHOUT the interest charges you claim, and the interest is dealt with once the claim is either settled or goes to court!. Thanks for the response. Marko

Hry fruitycar, absolutley top notch story m8, and I don't know for the life of my why you're apologising cause I reckon we're all proud of you m8 for sticking to your guns and going the distance I reckon the judge was a bit of an arse to be honest (sorry for the language) cause if this had av been them against you, you can bet your bottom dollar that they wouldn't have had to argue THEIR case and would have been awarded everything they asked for. You were failed NOT by yourself, but by the COURT which in my experience is unecessarily complicated. Regardless, well done in your victory so far and the best of luck on your next lot. Marko

Argghhhh, fruitycar - this was like reading a book only to find that the last page had been ripped out!!!! What happened today m8 at court, did they show???

Hi guys, I guess this could be another homer moment for me (doe or doh!) but could I just make sure I've got this right as I intend to file my first claim today. My understanding of this thread is that if I were claiming £511 in bank charges and then interest at 8% amounting to £214.14, I would make my claim for £724.14 and still enter the line "with interest on that sum at the rate of 8% annually" - or would I simply enter £511 with interest on that sum at the rate of 8% annually???? Sorry again if this is obvious but it's definately one of those "must clarify" things!. Cheers Marko

D'ya know, I must be sooooooo blind - I was that busy trying this forum that I didn't even realise there was a Scottish section!!!! Apologies to all for my obvious homer moment (Doe!) and thanks to you clayts for the steer m8. Marko

Guys, I'm eager to crack on with this claim but don't know what to do about the wording on the summary - could someone (possibly someone who has already made a successful claim in Scotland) possibly advise. In particular, it's the County Court thing that's making me doubt. Thanks again Marko

Hi again guys, Could someone possibly advise on my post made 13th June in regards to my intended court action. I'm not sure whether these details are relevant for Scottish courts and obviously don't want to look silly when making an application to the court and referring to English law (i.e. County Court . . .), would be most appreciated. I intend submitting this application tomorrow (21st June 2006). Thanks again. Marko

Just another quick update guys - I will now be heading off to the local Sheriff Court on Wednesday (pay day - monthly!) after Halifax have ignored my last letter giving them one further change, which only goes to prove there is absolutely no point in further correspondence with these people other than what is recommended on this site. I will, of course, let everyone know how this goes