I take it that this is a claim you have made on CrapOne personally - ie not a Court claim. If so, one thing you will pretty much have to get used to is that there is regular time - ie 60/24/7 - and there is CrapOne time and that is what they work on. Sending you to the Ombudsman is pretty much a fool's errand - they wouldnt have suggested it otherwise - as its unlikely there will be consequences. What will happen next depends on what it is you are after - I assume its fees. They will probably make you an offer for the difference between any fee of more than £12 and £12 (eg if £20, they will offer you £8) and at that point you will have to decide whether to take them to Court or not. Once you get into the Court system, then the Courts can move them along, though even then they will introduce any/ every delay that they can. If you want your full claim, then I think Court is probably what you will have to do.

****ing brilliant - well done Ida you are a sun of the galaxy!

That is just terrible - no doubt some Sheriff who puts the needs of the legal system above all else? Could go on about this, but you are where you are and it wont help. My serious advice is that you need professional legal help, but I would guess your financials could be a problem in this respect? Therefore, I would suggest that you get on to Shelter just as soon as you can, explain the situation and ask to speak to one of their legal people. You wont be the first to present with this kind of situation.

I would try CAB and the local drop in service on Monday. You wont get Govan since they are under virtual siege most of the time and can only deal with cases in "their" area (GOVAN law centre being a clue on where that is). Problem is that this is quite a specialised area. I'll see if I can get you a specialised pov.

Might it be possible to get a second professional opinion from somewhere? Clearly CrapOne are making an issue of this, but I would bet many more could if this were right, which makes me wonder why they dont, which in turn takes me to a second professional opinion. What about your local CAB for instance? Alan, what prompted you to raise a case in England?

Well done Alan - hopefully you will get the dosh in time for Christmas. As Citizen B says, the important thing is that you are happy with the outcome. I think seeing absolvitor as meaning they have won and you have lost is going a bit far. The main thing about absolvitor from their pov - particularly as you settled for less than you reckoned you were due - is that the case is now dead and buried. Even if you wanted to claim for the other 7/16 you couldnt do it even if you wanted to. From their pov its insurance. Well done again - you faced them down!

You might also want to have a look here http://www.consumeractiongroup.co.uk/forum/showthread.php?362094-Halifax-Credit-Card-Penalties - same thing as you are doing with a bank I would have a sizeable wager with you, also makes the "law of England" requirement - they ALL do.

Hi AJS, sorry not to have replied to this before now, but frankly I really didnt know what to say. I am totally gobsmacked by this. To my mind Part II Section 4 of the Civil Jurisdiction and Judgements Act 1982 is quite clear - it says Consumer Credit Act 1974 (c. 39) 4. In section 141 of the Consumer Credit Act 1974 the following subsections shall be substituted for subsection (3)-- " (3) In Scotland the sheriff court shall have jurisdiction to hear and determine any action referred to in subsection (1) and such an action shall not be brought in any other court. (3A) Subject to subsection (3B) an action which is brought in the sheriff court by virtue of subsection (3) shall be brought only in one of the following courts, namely- (a) the court for the place where the debtor or hirer is domiciled (within the meaning of section 41 or 42 of the Civil Jurisdiction and Judgments Act 1982) ; (b) the court for the place where the debtor or hirer carries on business ; and © where the purpose of the action is to assert, declare or determine proprietary or possessory rights, or rights of security, in or over moveable property, or to obtain authority to dispose of moveable property, the court for the place where the property is situated. (3B) Subsection (3A) shall not apply- (a) where Rule 3 of Schedule 8 to the said Act of 1982 applies ; or (b) where the jurisdiction of another court has been prorogated by an agreement entered into after the dispute has arisen.". I have highlighted that part since while Crapone are asserting the primacy of English law, the agreement in question was entered into before the dispute had arisen, not after. However, it also seems to me that there are important policy issues here. The clear intention of legislation such as the the Civil Jurisdiction and Judgements Act was to give consumers (and others) a break, so that for instance a big bank couldnt drag you off to the other end of the country to defend yourself, or to take action against them. This seems to me to fly in the face of that. Suppose you lived in Manchester, you might put your action in against CrapOne at the bulk centre in Northampton, but the case would then be transferred to your local court in Manchester. But not if you live in Scotland it seems. Basically it seems the situation is that if an agreement has been signed which indicates that disputes will be determined under the law of England then that's game set and match no matter what. However, consider this (its tenant and landlord but I think the argument can be transferred) about the source of obligations in the tenancy agreement "The common law implied terms can be overridden by express terms of the tenancy agreement but the statutory implied terms cannot generally be ousted by the tenancy agreement, which makes the statutory implied terms extremely important to the tenancy agreement" In essence what this is saying is that a tenant can give up common law rights by signing an agreement which contradicts these. BUT - and this is the important point - that doesnt hold good for statutory obligations which cannot be signed away in the tenancy agreement. By extension what CrapOne (and your lady in Edinburgh) are saying ist that you signed an agreement committing to the Law of England, but that said you cannot sign away your rights under statutory law ("statutory implied terms cannot generally be ousted by the tenancy agreement"). Given the invidious position that the interpretation you have been given places people from Scotland in, I think there is a serious public policy issue here. As I said, if you lived in Manchester the case would be moved to suit you. The intent of Civil Jurisdiction & Judgements is to do likewise for people in Scotland and if statutory law has primacy then their argument ought not to stand. Have you thought about taking this up with your MSP ajs? I am pretty sure that an SNP MSP would be more than pleased to hear about this and, having conducted their own investigation to raise the issue in Holyrood, since its hard to see why people should be disadvantaged just for living in Scotland.

I can well understand your state of nerves about this. That said, I think that NRAM v Miller will be a very useful precedent for you. From what I can glean from your thread, the key statement in Deutsch's judgement is this one (paragraph 90) "The only default averred in the sense provided by section 5 would have occurred upon the expiry of the calling up notice. Since the first pursuer does not offer to prove compliance with the pre-action requirement to provide information at or after the expiry of a calling up notice but rather relies on the provision of information before the calling up notice was even served, then, whether in terms of the 1894 Act or the 1970 Act, the action B 2832/11 is premature and therefore incompetent", which sound very similar to me to your own situation that "In the calling up notice we received the pre action protocol evidence dates back to 2010". However, I would also present to the court your experience of NRAM - in this respect your post of 7/11 seems to me a good place to start. Courts vary in this respect - some take a very legalistic approach, but others, especially where they are minded to find in your favour, will take into account the behaviour of the pursuer. So, whether they have been unreasonable in their demands is certainly something I would put to court. This is particularly so as this document (http://www.google.co.uk/url?sa=t&rct=j&q=pre-action%20requirements%20scotland%20mortgages&source=web&cd=1&cad=rja&ved=0CEYQFjAA&url=http%3A%2F%2Fwww.scotland.gov.uk%2FResource%2FDoc%2F320428%2F0102510.pdf&ei=l-y3UKHLGcSS0QXK34DoBQ&usg=AFQjCNFJKgQjvlQPdP0GwCCLKycvrZWdiQ) makes pretty clear that NRAM should have made reasonable efforts to agree payments with you, and that court action ought not be taken when you are taking steps that within a reasonable time to remedy the default (which you might argue you were). Have a look at this - its quite a different approach from the one adopted by NRAM - where their conduct specifically is at variance with the code, then point this out to the Court. Might also be worthwhile having a look at this http://www.mortgagefinancegazette.com/arrears/turbulent-year-for-repossession-law-in-scotland/ - ok its the other side (ie NRAM) but this is the kind of opinion that they will hold and I think there are one or two "interesting" comments in it. that "it is fair to say that generally, unless a debtor takes issue with anything in Form 11C, it is accepted at face value and we would expect that to remain the position going forward." - now we might argue as to whether or not it is "fair to say", but let that pass here since I think its quite clear that you would take issue with their form 11C - most notably in regard to an agreement, but also the guidance from Ministers on how to behave in such situations that "21 per cent of callings continued further to payment proposals being received - often the day before the hearing so time was needed to obtain instructions and, in some cases, see a completed income and expenditure form" - from your thread it looks to me as if you have already done this, so why are they taking you to court - there is no mention of bank statements here. the discussion of RBS v Wilson is also interesting, since again there seems to be variance between this and the conduct of NRAM in your case - and remember this is "their side". I think the key thing in this is that from Wilson its quite clear that par (its pre-action requirements - pre-action protocol is English law) has to be completed on expiry of the calling up notice and not beforehand - as Deutsch puts it "The only default averred in the sense provided by section 5 would have occurred upon the expiry of the calling up notice." - PAR comes after the default - I think even the Mortgage Finance Gazette appreciates that. So I would have thought there are two heads to your defence that I can see - they are wrong procedurally, and also arguably wrong with respect to their compliance with par in respect of their conduct toward you and the arguably unreasonable demands they have made. Hope that helps, but it does seem from what you say here that you are on the right tracks, so keep going.

all the best on Monday mate!

Starting at the end, absolute assignment, I think, sells the whole thing - lock, stock and barrel - to the dca. Equitable is somewhat less, but I am not entirely sure. I would certainly go after them for the DN, and the fact they sold before you had time to remedy. Notice of assignment is a bit vague. Creditors argue that its enough for them to write to you and tell you your debt has been transferred to them - Cabot's hello letter for instance. But, if I wrote to you to say your debt has been sold to me, why should I believe you. But if they have screwed the DN by not giving enough time to remedy AND sold before the (overly short) time they have given you to remedy, then those are strong points. I would though still go after them about the application form/ agreement with all the points that you and Vint raised about it being a reconstruction. They may not attempt to defend that, but if they came up with such a duff reconstruction it might be that they have a problem finding an enforceable version of the agreement. This is why you need to read Harrison v Link, because he tied MBNA in knots about what type of agreement he is supposed to have signed (in fact, if you are an optimist, if they see you refer to the Harrison case, it might just be enough to get them to go away and leave you alone). Remember that what they sent you three years or so ago was in response to a s77 request (what Waksman called "the information purpose" in Carey). But now they are seeking to enforce in court, its s61 1a that they have to worry about and the onus of proof here in on them to show that your OH did sign an enforceable agreement. Read Harrison (you can get it here http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html) but when you do, remember since Harrison brought the case the onus of proof was on him to prove he didnt sign an enforceable agreement. In your case the onus of proof is on them to show that your OH did sign an enforceable agreement, and in this respect HHJ Chambers statement that "Entirely understandably, the Defendant's evidence given through MBNA is of the "would have" variety. "We would have sent the terms & conditions because that is what we were required to do and our systems would have been designed to do". But there was evidence neither of the system nor its implementation." is telling. Were I you, my defence would be based on both heads - unenforceable agreement and defective DN.

I dont think much has changed that from what you say in today's post you are likely to rely on. I suppose the main area would be the application form aspect. On the one hand Carey v HSBC allows creditors to send a reconstruction - but ONLY for the purpose of s77 - for enforcement (ie s61 1a) they should still produce the original, and from having had a quick look through this thread it seems unlikely that they will be able to do this. google Harrison v Link to see the problems that MBNA can cause those they sell their accounts to. The fact that what they have presented is clearly a mock up remains a strong and valid point for you and unless they can find a way round/past it, I would have thought they are sunk. The manner in which they defaulted - and in particular sold the account before the default notice had expired - is a killer point as well for you as far as I can see. The only other major thing that I can think of that has been mentioned in your thread is that the s59 argument has been knocked on the head by the courts. Other than that, since you are able to rely on the 1974 Act, things are much as they were, I think.

Re this "My initial thought is just to state the CCA is invalid and that's why we haven't paid thus far, then argue that the outstanding balance is incorrect due to unlawful charges, and then say I am not prepared to pay until the PPI is resolved and hope one or two items stick..." by all means - indeed you must - point to the invalidity of the agreement, but dont connect it to not paying. I dont think a court would (or could) approve. Remember that you are in a court of law and not a court of morals. The argument can always be made that the money was borrowed so should be paid back - that is a moral argument. Your argument is technical - the document they got you to sign is defective in certain ways and the court is simply not able to issue an enforcement order. Dont go anywhere near the moral route - and if that makes you feel uncomfortabl, ask yourself this question - if your bank (or any other financial instituation) could avoid paying you money due on a legal technicality, would they still pay? No, I dont think they would either. Just ask anyone who is trying to screw PPI out of them. point to the fact that what they claim is owed is wrong as it all adds to the impression that their case is not well founded, carefully researched and basically just wrong. I'm not sure of the balance, but set what you do owe (dont just take their word for it) against the PPI and the illegal charges and see how it balances out. Fwiw, Crapone owe me more in illegal fees than I ever owed on the card. However, I am going to have to see how two cases go up here on the use of Prescription & Limitation Act (same as the Limitations Act) to see whether I can still make a claim. I suspect that if you can show that your claims re PPI and charges are well founded and that either, once these are taken into account you dont owe them that much or better still they owe you, they will withdraw their case. IF they do, then at that point you put into court your papers reclaiming what they owe you - but that is for later When you are able, get the papers they serve on you up here and we can have a look at them. One thing I should add, is that while I am happy to help you with the overall structure of your case, English process and procedure is something that I really know nothing about - never come up against it - so it would be better if you got someone else who has appropriate expertise, either as well as/ instead of.

First thing to do is to calm down (easy for me to say? Yes! But it is the best advice). Second thing is that when the papers arrive you will see you have some time to enter a defence - its not like you need to have it ready by Monday. In any event, if you did calm down I would bet you sketch it out now. Thirdly, might the extra £500 be court costs etc? They will have to produce a breakdown - or if they dont make sure they are required to do so to prevent any tendence to think of a number and double it To answer some of your questions in 149 yes a counter claim can indeed be part of your defence, though it wouldnt be a reason for not paying you must mention the validity of the CCA - I think this is the main plank of your defence. Think about it, if this case does get to court - and dont assume it will since if you put in a strong enough defence they might well want to withdraw - then its possible the court will determine that the agreement cant be enforced (and remember the burden of proof is on them to show that it is enforceable at least on the balance of probabilities) BUT that your counter claim has merit, so this COULD end up with them having to pay you. I would deal with the unlawful charges as part of your defence of their claim - you are just stretching it all out otherwise. Wait for the papers to arrive to see exactly what their action is based on as only then can we be sure what we are trying to repel. make much of them signing your mum up for PPI in her situation - that is taking advantage and demonstrates the kind of people that she was dealing with Your point about the T&Cs not being the orginal ones made me smile because just this morning I got a letter from Crapquest alleging an account they bought from Crapone is enforceable on the basis of a reconstituted agreement. I referred to them Harrison v Link (and in particular the reference to "would have variety" in the final judgement) as well as Mitchell v Bank of Scotland. I also told them that they could forget about a sworn statement from some pimply youth who might well attest the proper procedures were in place etc but who couldnt possibly have been there. Again, the onus of proof is on them - they will need to be pushed on this, but essentially where you are trying to get them to is having to prove that there was an agreement compliant with the CCA s 61 1a. I would have a small wager with you there is no such thing. I wouldnt bother about sigs nonsense, unless you are going to be looking to get docs from them and if they play silly buggers then get the court to make an order. as for your final thought, what I would suggest we are going for here is to have the account declared unenforceable, but that your counterclaim is well made. The problem is that I reckon if it looks like going that way, they will try to withdraw. Hope that helps.

I dont want to depress you, but it could be that, should the Sheriff decide in your favour, they MIGHT just decide to appeal the decision to allow you to use the 11(3) since as you say, "it might open a door for others". Alternatively of course they might prefer to "keep it quiet", which, since its a Sheriff Court case means that if others raise your judgement in another Sheriff Court it would only be advisory and not determining (ie another Sheriff might come to another view). But that is for the future, and it does seem like you played the game well. WELL DONE

the worst case analysis is that you turn up and they present a point you arent prepared to rebut. Better to be prepared unnecessarily imo (which is easy for me to say). Remember too that as you brought this case, there is an expectation on you to make a case to the court (being civil its balance of probs, but nonetheless) - so you need to be prepared to argue why the court should find in your favour not just why it shouldnt find in their favour - though obviously there is a good deal of overlap between the two. But you do need a positive argument to find for you, as well as a negative argument to find against them.

I wouldnt be as sure as Bandit about the County Court claim - what Bryan Carter says and what Bryan Carter does are two quite different things. It could well be a threatogram - two reasons - "This matter will be referred for court proceedings to be issued on 05 Nov 2012" - not exactly we will be issue court proceedings - its the construction on "referred" that intrigues me "If proceedings are issued," which suggests some doubt in their minds In any event if its not a threatogram it shouldnt be long before we know. In that case, I think its quite likely that the court will separate out whether or not an order can be issued against your mother requiring her to pay what they claim is owed the PPI claim (and I am not sure I would be all that confident of the FOS making a clear determination) I think the court would be likely to treat these things as different. In any event, since we are working on the basis of Carter's letter not just being noise and that papers are issued, then it would be possible for you to counterclaim in court for the return of the PPI (no unlawful charges as well?) set against what they are claiming. If it looks like you have a strong case and if they lose its going to cost them big time, I wouldnt be surprised to see them run away (whether its Carter doing the representation or not). So while I suspect that Carter is just issuing threats, my opinion would be "bring it on" as it does seem to me that if you can construct a sound case, they have a lot more to lose than you do (or your mother does) .

If you go here http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.scotcourts.gov.uk%2Fcourtusers%2Fcrimcourtattenders%2Fdocs%2Fattending%2520a%2520court.pdf&ei=KliYUMXZFKnE0QWylICgDg&usg=AFQjCNGpvNj99nJyg8tZadI1pT3P9QVYtQ there is a pdf that will download a document on Scottish Courts and how they work (including criminal courts). On page 5 it says this "Civil Procedure Whatever type of civil action is raised, it is likely that hearings will take place before a date is fixed for a proof. These hearings will assist in clarifying the issues in dispute. A diet of proof is where a sheriff will hear evidence in the case and, in the case of an ordinary action, will issue a written judgment. Where actions are summary cause or small claims a sheriff may give his/her decision verbally from the Bench at the conclusion of the proof diet. There is no legal requirement for an individual to use a solicitor to conduct the case, though in most ordinary actions the legal issues can become more complex." I would think - certainly very much hope - that the claim for the sum of their illegal charges would be largely uncontested (and as for "English law applies ........."!) - where they may haggle seriously and the Sheriff may be most uncertain is on two matters I suspect whether you are indeed "out of time" - bit more complex than just saying "I didnae know" - on the other hand, I am pretty sure that you have a large file of letters from crapone telling you that their charges were fair, reasonable and most certainly lawful. What you will have to show is when you became aware that this wasnt the case and that it would have been unreasonable to expect you to learn this beforehand. The fact you are a lip without legal representation is on your side since it can be argued that it would take a specialist to know a claim was even possible the rate of interest that you would be able to charge. Accepting the charges were wrongly applied is one thing, but they will argue that this is all you are due - "ok we deprived you of £xxx, but that is all". However they have compounded (literally) the felony by illegally depriving you of your money and then charging interest on your "debt" - and even if you werent in debt you have used money to pay off the illegal charges that you could have used to earn interest elsewhere The issue that the court will focus on therefore, I think is likely to be what rate of interest should be applied. It might be argued that its judicial interest which I think is 8%. However, I would be arguing for the rate of interest they applied to your account since that is what it cost you.

Well this is what they would say is it not? The fact they are negotiating suggests to me that they recognise their position isnt what they would like you to think it is. Perhaps their Scottish sols have looked at concocting a case for a Scottish court based on English law when there is perfectly good Scottish law in place. But they wouldnt want you to think that. I would suggest waiting to see what they put into court. There is a similar case going on (search for AJS) just now involving Crap1 with similar issues to yours about time-barredness and this where they are at just now.

Well a defence of English law applying in a Scottish Court when there is Scottish legislation in place will be, at least, interesting. I hope you will share it with us in due course. I think I might be inclined , were I you, to submit that either way - whether the Scottish Act or the English one - whether "should you have known" or "mistake" it comes to the same thing. Belt AND braces! Re 1 their point about transparency stands only in respect that this its in their T&Cs - the issue is one of fairness. You can argue, how much does a couple of pieces of paper and a stamp cost (ufair I know, but its not much more than that - a Google search for some examples of where people have gone into this would be useful) - the ball is then in their court to demonstrate their cost structure (I suspect they would rather have both eyes gouged out - not a job fora young thing anyhow). RE 2- did they not use compound interest? If they did, its only restitution.

How can it be that the Civil Jurisdiction Act gives you the right to pursue a UK company in a Scottish court if you are domiciled here, BUT a credit card agreeement (or any contract) can be said to be determined by English law. This HAS to mean either that the Civil Jurisdiction Act has been kicked not so much into the long grass but into the bushes and that if you live in Scotland and have a contract like that put out by CrapOne (and the reference to the law of England isnt that unusual in T&Cs btw) then you will have to sue them per an English court. Either that or the Sheriffs will have bone up on English law - in that case who would the appeal be to? This is just nonsense. Statutory law takes precedence over any contract. Suppose your T&Cs said that in the event of a late payment they could come along and cut your head off? Garbage! In any event AJS, did you not ask her why the claim was time-barred under the Limitations Act? The issue is pretty much the same - "mistake" under Limitations and "should you have known?" under the 1973 Act up here. How did the Sheriff take it? I suppose her bravery in putting this argument to him should be a matter of congratulation. As for your emaili from CrapOne, you might want to respond to him drawing his attention to the Civil Jurisdication Act???????????????????????.

Ida's advice is good - the Civil Jurisdiction Act gives you the option of which jurisdiction - Scotland or England - and which you chose will determine the law to apply. I rather suspect a Scottish Sheriff would die in a ditch rather than have a lawyer tell him that English law is to apply. Besides the consequences would be nonsense. Would it mean for instance that anyone in Scotland could only bring an action against CrapOne in an English Court? Hard to dispute that conclusion when the only alternative is for Scottish Sheriffs to apply English law - see my reference to die in a ditch again. But, lets suppose they are successful in this argument - where does it take them? Basically your dispute in this respect is how far back you can go with your claim against them? They are arguing that the Prescription and Limitation doesnt apply as its Scottish law and the dispute has to be resolved under English Law. Fine! Refer them to the Limitations Act 1980 and in particular s32 which arguably says much the same thing http://www.legislation.gov.uk/ukpga/1980/58 On, Clyde, a, think, the, came, you, bike, do, I, up? Comes to mind! All ther best on Friday.

The sig thing is bollocks - they are trying this one on with me. They have corresponded with me at this address for goodness knows how long. All they are trying to do is to cause delay. If you go to Data Protection and make a complaint, how long is it going to be before there is a determination on that? And how confident do you feel that Crap1 couldnt do a good enough job of obfuscation to avoid losing? They suggest they want a "certified copy" of the sig on your passport or driver's licence. Two things here i dont know about you, but particularly with the passport (drivers' licence too?), you have to cram your sig into that little box (its a bit like signing the strip on a bank card) so it looks nothing like your signature does normally the concern is that they photoshop your signature from your passport (say) to a compliant agreement. But passport and driving licences both have distinctive backgrounds, and I THINK with photoshop it would be hard to lift the sig without the distinctive background, which makes me think they are just trying to delay/ test your endurance. I might be wrong about this - my knowledge of photoshop is limited On the other hand, if they have already accepted a copy of your sig certified by your mom then you could try reminding them of that - or just do that again (or have it certified by a lawyer, or a minister of religion). I think they are just trying to kick the can down the road as far as they can. As for whether they can win re charges, I dont see how they can. Your case would be how much does this cost - couple of sheets of paper, envelope, stamp, additional borrowing costs on the bank for a couple of days. Estimates of these costs vary from a few pence to maybe a couple of pounds - but not what they charge (and, even worse what they have charged in the past). This is why I suspect that what they are at is a gambit - they are trying to delay in the hope you give up. In the same way, they will take the fees charge as far as they can in the hope that you blink first and give up (or settle for a lesser amount). What they wont want is a decision against them. They also wont want to have to go into court and run the risk of the judge requiring them to set out their costs in a public forum. So my guess is that as it gets closer to court they will make increasing offers - this is what is happening with a case involving Crap1 up here. Its a bit like deal or no deal.

I think much will depend on how much they think you could and should have known. For instance you refer to March 2012 - should you have been aware of this earlier? That is what they will push you on, I am pretty sure. You do though have two assets you are a layman so you cant be expected to know what a "skilled adviser" should know for the period 02/09/04 to 02/10/07 your affairs were in the hands of a "skilled adviser" (ie your trustee). I wouldnt put it that you would have expected him to act on it - they might say "well sue him". I would leave it that he never raised the issue with you. And as you say, its not five years yet since your trust deed was discharged The point about finding out whilst exploring mis-sold PPI is a good one.

Thanks for pointing that out and you are of course correct. Having done a bit of rooting about, I came across this (its actually from a document on how long higher education institutions need to keep records). In respect of Scotland it says this, "This principle is the same as in terms of the immediately preceding section. Namely, that the 5 year period starts running on the date when the obligation became enforceable. As noted above, in the case of claims for reparation this date is date on which the person suffering the loss became aware or ought to (using reasonable diligence) have become aware of such loss and thus the liability or breach crystallises (or ought to have crystallised) into something that can be recovered or enforced." If you go here http://www.scotcourts.gov.uk/opinions/2012CSOH44.html you will find a case that turns on precisely this issue. It explains that the relevant law is the Prescription and Limitation (Scotland) Act 1973and in particular in section 11, where its stated that "11. - (1) Subject to subsections (2) and (3) below; any obligation ... to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred." In other words, in terms of s11 - and it may well be that HSBC will use this, the five years starts ticking down when the first illegal fee was charged to your account (the date when loss/ injury or damage occurred). However, as Lord Woolman points out in his judgement in the case in question, it would have operated harshly, and for that reason, he goes on to say, "section 11(3) of the Act provides an exception: "In relation to a case where on the date referred to in subsection (1) above ... the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware." [15] The purpose behind that provision is plain. It aims to strike a balance between the interests of the respective parties. Persons should not be deprived of raising a claim if they are unaware and could not reasonably be aware that they had such a right. But defenders and their insurers should not be at risk of a claim suddenly emerging many years after the event in question. Put simply, what this says is that the five years doesnt start to tick off till the time when you could reasonably have been expected to know that the fees being charged by HSBC were unlawful. Now, I think its important to understand that this doesnt mean that you DIDNT know. It means that if you had taken reasponable care to find out, COULD YOU HAVE KNOWN, which is clearly a bit more difficult. For instance, is it reasonable to expect Joe Public to know that these charges can be the subject of a legal claim, particularly when the banks will assure you, as the day is long, that they quite within their rights. I might also look at http://www.scotcourts.gov.uk/opinions/A1115_08.html. It says here - this is a commercial case and not one directly applicable to your case - that " We agree with Lord Clyde's observation in Greater Glasgow Health Board v Baxter, Clark & Paul 1992 SLT at 40D that the subsection looks for an awareness not only of the fact of loss having occurred, but of the fact that it is a loss caused by negligence...," and further on he says, "A party who is aware that he has sustained loss, injury or damage may reasonably be expected to take some steps to find out what has caused that loss. Failure to do this will call for an explanation if the test of reasonable diligence to which s11(3) refers is to be capable of being satisfied" (47J). I am thinking here in particular of the section highlighted in bold. If you were faced with that question in court, how would you reply? I would reply by saying that I was assured by the lender that these charges were legal and it was only when I became aware that such charges were being reclaimed from other lenders - even then on a "without admission of liability" basis - that I could have been expected to know. It is only THEN that the five year period commences (though you can be sure the other side will suggest earlier). So you will need to refer to Prescriptions etc Act 1973 and s11, setting out why you couldnt have been expected to know that you had the need to claim till some date within the last five years I am sorry for misleading you - but as I intend to be following you - though with another bank - finding this out has helped me, and I hope it assists you.