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Everything posted by goforit

  1. Unfortunately it's not as simple as that. Generally speaking, if a letter is an obvious attempt to settle a litigation it is taken to be written without prejudice.
  2. Also res judicata is latin for "a matter already judged" (roughly translated, I believe) so that would be the banks defence to your subsequent actions (which has been rejected by Tayside Central and Fife's Sheriff Principal) - not a plea that you would table.
  3. That was actually Sheriff Principal Dunlop's opinion, on appeal. If my knowledge of precedant is correct, that opinion is binding on Sheriff's in that Sheriffdom (i.e. Tayside Central and Fife). However, the opinion can still be cited as a persuasive authority in other Sheriffdoms. I believe the ratio of the decision was that each charge (insofar as wrongful) represented a separate cause of action. Therefore it was theoretically acceptable to raise subsequent individual action in respect of each charge (or, in normal practice, to "divide" the actions into blocks of just under £750.00 and raise them one after another). HTH
  4. I believe you can ask for the ajuidicator's decision to be reviewed by an ombudsman. However, given that the amount in controversy is only £150.00 it's upto you whether its worth pursuing it. It is also worth pointing out that having had a complaint decided by FSO does not preclude you taking the matter to court, or otherwise prejudice your position at all. However, you must bear in mind the current situation with England & Wales courts staying the majority of bank charge cases.
  5. You can usually get a copy from the court
  6. No. Law and Jurisdiction are sepearate (although often related matters). We really need to more info from the OP. Do you still have the original claim form that you were served with. In the first instance you would write to them asking them to agree to judgement being set aside (based upon your grounds).
  7. Did this ever get sorted out? Am I right that, thus far, Jen is only out £10.00 trying to sort out this mess?
  8. Have you spoken to a solicitor - Govan Law Centre would be a good start.
  9. If you do take previous posters' advice and get legal advice then I strongly suggest that you contact a law centre with experience in dealing with bank charge claims (or alternatively other poverty related issues), they may not be able to help you themselves (for example you might live outwith their catchement area) however they will be the best people to point you in the right direction (no conflicts of interests etc). If you live in Scotland then I suggest you make contact with the Govan Law Centre who, as far as I am aware, are probably the most experienced lawyers in Scotland with regard to reclaiming bank charges.
  10. That's what I found unusual. I was under the impression that judges don't like to waste court resources so presumed that the judge in this case would of wanted the bank to be given an a chance to comply with his order before expending the use of court-bailiffs' time. Also, even although the judgement is marked "forthwith" it has to be understood that nothing is insantaneous - it takes time for cheques to come through the post (and sometime the client has to lodge a cheque with the solicitor first) - if things go wrong and it is decided the judge acted ultra vires (i.e. outwith his authority)and his order is recalled, I wouldn't be at all surprised if the act, of immediately instructing bailiffs to repossess a high-street bank's property (who, let's face it aren't going to run off into the night) without giving them an oppurtunity to satisfy the judgement against them, is viewed as being unreasonable when the matter of costs arises. Just my two pence. I would hate for someone to be hit with a big bill.
  11. From the outset I would indicate that I'm not a lawyer and that if possible you should get legal advice. Whether from CAB, Legal Aid funded solicitor, private funded solicitor, law centre, etc. Whilst I can give informal advice, which is proffered to you without any liability whatsoever and on a strictly informal and causal basis, this can be no substitute for proper legal advice. With this in mind I would, for background information and subject to the preceeding caveat give the following. Here is a good, brief article regarding jurisdiction specifically relating to consumer contracts (and particularly Scots domiciled consumers) from the Govan Law Centre (this article is best viewed in Internet Explorer): Can I be sued in England? | free help from Govan Law Centre , Glasgow . The only problem I have with the above article is that its "form defence" quotes legislation which, as far as I can tell, is meant to determine which Scottish court(s) have jurisdiction, once it has been determined that the Scottish Courts do infact have jurisdiction over a case. The issue in point here is in fact whether the English or Scots courts have exclusive jurisdiction or whether they have concurrent jurisdiction in this matter, not which court in Scotland has jurisdiction. Also, in this case you aren't defending this case, as such, but initially arguing for judgement to be set aside. However, I have prepared a pleading below arguing that the Scottish Courts have exclusive jurisdiction over your case and that judgement should be set aside. Without knowing the full details of your case it is quite hard to comment exactly on this situation, however, it would APPEAR to be the case that Northampton CC (who would of probably been acting in their capacity as the Bulk Processing Centre for the England & Wales Court sytem) didn't have jurisdiction to hear the case if the subject matter of the claim was a consumer contract; you have always been domiciled in Scotland; there weren't other Defendants to the action other than yourself; you didn't enter into a agreement prorogating jurisdiction of the subject-matter of the action/dispute/contract and the claim didn't fall under other certain "exceptions" to the general rules regarding jurisdiction. The general rule tends to be, subject to certain specific exceptions, that you being domiciled in Scotland means that you can only be sued in the courts for the location where you are domiciled. Domicile in MOST CASES refers to the place that you normally live, although there are exceptions. If any of the "exceptions" apply to your situation then things get more complicated. Although the court may have had no jurisdiction to hear the case, it is still in your favour to get this Judgement cleared I think you will need to have the judgement set aside by filing a N244 (Application Notice) with an appropriate fee (unless you are entitled to an exemption or want to apply for a remission). I have prepared a pleading below arguing that Scotland have exclusive jurisdiction over your case and that judgement should be set aside. I am, however, unsure if you are entitled to do this since you didn't enter an acknowledgement of service. You may have to seek advice from another board member or, an English legal adviser on this matter. * delete as appropriate
  12. I believe you can also claim your Solicitor's fees for advising you prior to claiming, prior to entering judgement, prior to entering warrant etc. However, although I wouldn't purport to be more knowledgeable than your solicitor, I wouldn't think it wise to appear unreasonable even if you can insist that you are paid there and then (i.e. I would of written to the bank and given them 7 - 14 days to pay before ordering enforcement of the execution warrant). Did you solicitor say anything about this?
  13. I wonder if this judge has realised that he will now have every litigant filing in his court now? I do think the banks have a good case to have the order set aside, unless there was a specific statute allowing the judge to strike out in these particular circumstances.
  14. OK guys. The discipline that deals with case involving a "foreign" element can be confusing and is referred to as Conflict of Laws. The situation is further complicated since, although the English legal system is "foreign" to the Scottish system, it has different rules concerning conflict of laws to actions which are entirely "British" (i.e. no "element" of the case are non-UK) than those which have both a "British" and European/Member State element. Anything, that has an element relating to a country not a signatory to the Brussells Convention (and similar treaties) is not standardized. Put simply Britain has one set of rules regarding the Conflict of Laws for cases entirely of a "British" naure, another for "EU" cases with a "British" element and anything else isn't particularly well standardised. Note: As long as you understand that where an entirely British case involves "elements" from more than one UK jurisdiction then a special set of Conflict of Laws rules govern the action. The rest has just been added for the sake of completeness It is imperative to understand that "law" and "jurisdiction" are two entirely distinct elements although they often do overlap. This is imperative to understand. Additionally, you must understand that a court can accept jurisdiction concerning a case and then proceed to characterise the claim and then decide that the laws of another jurisdiction should be applied to the case. Indeed, it can often occur that more than one different country's law can be applied in relation to different parts of the case (i.e. in a divorce case one country's marriage law might be applied, another used for parentage, another used for custody, another used for damages, contract, etc). Without a basic understanding of the Conflict of Laws I suggest that people don't try and get too smart with their cases (especially in anything above small claim in either jurisdiction). It is also imperative that you understand that their is a difference between the relevant law to be applied and the courts with jurisdiction over a case. See: Jonathon Mitchell QC's website en.wikipedia.org/wiki/Conflict of Laws - for info only it isn't gospel in the UK, has a USA perspective and isn't necessarily written by lawyers. Therefore, don't rely upon it, just use it for background info.
  15. Actually I would suggest that you contact Govan Law Centre and if they can't help you ask Mike Dailly to reccomend someone local to you. You don't require a solicitor, in theory, to raise any Scots civil proceedings that I am aware of, including an Ordinary Cause. HOWEVER, TAKE NOTE: that although the sheriff may act as he can such that the procedure doesn't disadvantage you as an unrepresented party litigant, he won't side with you or "let you off" errors where they cause prejudice to the other side. Additionally, you will be required to pay fees for every motion you make or defend, every hearing that isn't cancelled 14 days before it calls, the warrant for raising and serving the writ, every proof, every diet, when you lodge the closed record, etc. In addition, you will have to pay Sheriff Officer fees to serve the initial writ (and most likely every motion you make) and the underwriter's fees for the proof which you can't get an exemption for since they are fees to contractors rather than the court. The procedure is somewhat different than the Summary Cause/Small Claim route and I wouldn't reccommend it without a lot of reading and the reaing and possessing throughout the case of several good books on the matter. MacPhail's Sheriff Court Practice, Charles Hennessy's Civil Procedure and Practice, etc. This would be in addition to researching the relevant law and certainly sitting in on ordinary cause proofs/debates/options hearings/etc (ask sheriff clerk's office when these are likely to occur). Furthermore, it may be the case that you get a Sheriff who doesn't approve of party litigant's since almost all those in Scotland subject to vexatious litigant orders are party litigants. Ordinary causes, if pursued to conclusion can in practice take more than a year to conclude in addition to any appeals. Some, though not a majority, of people express the view that it's better to be a party litigant as the Sheriff may well give you greater latitude with regard to procedural matters; however, this is highly debateable, certain to be extremely variable and does not make it a good idea to raise an ordinary action without an extremely good idea what your doing (not by any means in fact). Your pleadings have to be in a certain manner and the courts can dismiss claims if they aren't in the correct manner. You may find yourself liable for Counsel fees if you lose your case (which the Sheriff may well sanction and allow their fees to be included in the taxed expenses). I would advise the vast majority of people against raising an Ordinary Cause without a solicitor, however, think it is best that people know the option is available. In any event contact Govan Law Centre who know the law in this area and will know where any other solicitor's with knowledge in pursuing these matters in Scotland are based. If you win the other side may be ordered to pay your fees.
  16. Why on earth would they shut the account down (especially if he was paying the charges levied against his account)???? According to his posts, he gave them half of the amount required to fund one of their customer service staff. I think he must be their dream customer if he pays up!
  17. If that is the case then evidently it would probably be best to enforce judgement in Scotland. However, looking at the above, it appears that the Defendant company do have an office in England but that the clerks have, wrongly in my view, stated that because Service of Process was originally effected in Scotland that enforcement must occur there too. This is despite the fact that it is an English judgement. Also advice to OP, check that you put the right address down for the Defendant.
  18. You imply that there is only one "correct" way to enforce a judgement obtained in England against a Scottish Debtor. That is entirely wrong (bordering on absurd), The Royal Bank of Scotland (just like most Trans-National Corporations) have business operations worldwide. Now I don't suggest that RBS are in the process of having many judgements against them enforced, however, it wouldn't make sense for a court not to allow one of their own judgements to be enforced within their jurisdiction and insist that enforcement/dilligence is undertaken elsewhere. The point is that it is quite "correct" (to use your terminology) to enforce the Judgement in question at an English address of the company.n The court staff, who usually aren't legally trained, probably don't have much experience in this area. Whats more it is easier to enforce an English judgement in England.
  19. You seem to ignore various points. Firstly, she shouldn't have to transfer the Judgement to Scotland. Secondly, if she does and the jdugement is recalled/set aside then it will get complicated with the case being in two jurisdictions (especially for recovering the fees she has incurred by instructing Scottish Sheriff Officers). Additionally, I presume you didn't have any incidents whereby a judgement was set aside AFTER you had instructed Scottish Sheriff officers? Also note a Sheriff is not a Sheriff Officer.
  20. If the Default was in the Claim then you shouldn't need to transfer the case to Scotland to enforce that. Firstly, all the CRAs are in England. The point I was making was that you shouldn't have to transfer the case to Scotland so that you can enforce it.
  21. I believe that is the case in Scotland but NOT England. (DON'T quote me on that though). As far as I am aware, in both England and Scotland, solicitors cannot be paid on a contingency fee basis (i.e. they keep x% of the amount recovered) the nearest they can get is a conditional fee arrangement (speculative fee basis but where, if they win, they charge there fees + a %age of the FEES NOT the amount recovered and if they lose the firm gets nothing). Cheers
  22. Remember non of these companies are law firms so they won't be able to represent you in fast track, unless they instruct lawyers on your behalf (which I don't think they are allowed to).
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