I know Alan, in my case against HSBC I was going to have to travel to Durham to attend any hearing, luckily HSBC settled before it came to that. My lady in Edinburgh said that would have to be acceptable as I would claim expenses back in the case of a victory. This site is good up to a point, but when serious legal advice is required there are no real lawyers etc. to advise you of the proper course of action, maybe it is just Scottish legislation.

I gave Halifax Bank as an example, her reply was that they are now part of HBOS, head office Edinburgh, so no problem. Assume it would be the same if you raised a case against Currys for faulty goods, although you would be raising case against the store you bought it from, therefore once again no problem. She told me it would have to go through the court of the domicile of the defendant, if they were to sue me it would go through my local Sheriff Court and vice versa. I sued HSBC some years ago for bank charges and that was done through MACOL (English Courts online service) although I had to supply an address in England for correspondence to be directed to, I used my Sister in Yorkshire for that facility. I believe they have now changed that requirement and you can raise cases in Scotland now, certainly does not make it easy for the layman to get his justice. I will phone my lady in Edinburgh on Monday, and quote some of the legislation you mention.

Ida, I am taking them to Court and since they are in England I have to go to their area, especially as the agreement is covered under English Law, if it was the opposite way they would have to come up here and prosecute within Scottish Rules. My lady in Scottish Courts advises me that many agreements have been drafted this way. I am going to withdraw from the claim and go through English system.

Having phoned the Court Service in Edinburgh looking for advice I was told that Cap One are fully entitled to state that the agreement is under English Law, as was signed for at the time of agreement. I am told that this is written into many agreements and that any legal action would have to be taken through the English Law Courts, she was quite surprised that the Sheriff Court did not dismiss the case. It is not an objection under UTCCR, and that the defendants lawyers may claim for full expenses under the preface that the case was raised incorrectly, and I should get immediate legal advice before going any further.

After sleeping on this I am going to pick their defence to pieces, each point one by one. On the "English Law" matter I would have thought that the Court would have kicked this into touch just now, or is that too simplistic?

Thanks for your response. When I asked for a breakdown of costs I was directed to their T&C's, on a policy of £440 that has been running for 4 months, they are cancelling for roughly £180, this is on a monthly installment plan. Will be getting confirmation through the post from them, will see if they give a breakdown of charges, have cancelled Direct Debit so any charges will have to be processed by me.

Well, have had my Incidental Application returned and advised to lodge them under Inventory of Productions for examination on the day of the "Proof" hearing, they continually keep referring me to the notes about Small Claims on the Scottish Law site. Having gone through the procedures quite a few times, especially "Going to Court" the procedured do not bear any relation to my case, "Proof" hearings get no mention, anybody with any ideas?

Anybody ever challenged the Insurance Companies for the costs of cancelling Car Insurance mid term. I recently changed cars 3 month into my cover and looking at the renewal on my new car I thought it rather steep, so I started searching and came out with quotes saving me hundreds. On contacting BISL who collect on behalf of the Post Office Insurance I was staggered at the amount of money they will charge me for exiting the policy, all in their T&C's they say, it works out that any savings I was making has been claimed by them. I have asked them for a breakdown of their charges, anyone taken these [edit]s further?

Have launched an Incidental Application against Burness, introducing the Prescription and Limitations (Scotland) regs. and stating my preferences under Civil Jurisdiction Act. I have also submitted correspondence from Crapone, illustrating how they have tried to "bribe " me into dropping the case, this obviously shows they are/were willing to pay put on the claim but not the amount I requested. So much for saying the claim has no foundation for repayment.

I wish it was as clear as that, all this "Law Speak" is doing my head in, it's like reading Shakespeare.

Checked T&C's as supplied by Crapone. Section 23:- This agreement is governed by English Law. That is all it states one line, therefore where to now?

Also found this contribution from GLC, will have to check Capone's T&C's For example, in the case of McGowan v. Summit at Lloyds 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 have checked my bank's terms & conditions are there appears to be an exclusive jurisdiction clause for Scotland/NI? If this appears to be the case (and your bank is domiciled in England) you may wish to consider arguing that this clause 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.

Saw this from a sticky above, interesting that it came from Burness. Scottish law articles in association with Burness Prescription and limitation in contract The terms prescription and limitation are often used synonymously but do in fact refer to two distinct principles, explains senior projects solicitor Adrian Huett. Prescription is a rule of substantive law whereby certain rights and obligations are created (positive prescription) or extinguished (negative prescription) after a specified period of time. Limitation is a rule of procedure – and so must therefore be raised by the defendant in proceedings – whereby certain rights and obligations (while remaining in existence) become legally unenforceable after a specified period of time. Scottish law The current law is found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation. For example, the date upon which a claim under a contract (eg a claim for loss and expense under a building contract) becomes enforceable will depend upon the terms of the contract and will always be a question of fact and circumstance. However, it will usually be when the dispute crystallises, ie when a claim has been made by one party and rejected by the other. Thereafter, the pursuer has five years from this date in which to make a claim otherwise their right – and the defender’s obligation – will be extinguished. In contrast, a claim for breach of contract generally becomes enforceable when there is a concurrence of liability (ie the breach) and actual loss. Again, the pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (eg where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge. Accordingly, if an owner discovers a defect in their building three years after completion then, provided that defect could not reasonably have been discovered earlier, they have until year eight to make a claim against the contractor for breach of the building contract. However, if the same defect is discovered 18 years after completion then the owner has only two years to make a claim before their right is extinguished. It follows that correctly identifying the nature of the obligation is key to understanding when the prescriptive periods apply and, consequently, when rights and obligations will be extinguished under Scottish law. English law The current law is principally found in the limitation acticon 1980 (as amended). This sets out when contractual rights and obligations become unenforceable. There are two time periods since English law divides contracts into two categories: there is a six-year limitation period for simple contracts, and a 12-year limitation period for contracts executed as deeds. Only one limitation period will apply to any contract and that will run from the date on which the cause of action accrued. In a claim under a contract, this will be when the dispute crystallises. The claimant will then have either 6 or 12 years in which to make a claim otherwise their remedy will be time-barred. In a claim for breach of contract, this will be when the breach occurred and again the claimant will have either 6 or 12 years in which to make a claim. It should be noted that, unlike Scottish law, time will run from the date of the breach and not from the date of any resulting loss. Moreover, the start of the limitation period will not be deferred merely because the claimant was unaware of the breach. As a result, a claimant’s remedy may become time-barred before they realise they have suffered a loss or even before such loss has materialised. In order to address this injustice, the English Law Commission has published proposals which allow claims for breach of contract to be made within three years from the date of discoverability, subject to a ten-year long-stop. The proposals largely mirror the provisions of the Latent Defects Act 1986 which allows claims for negligence (other than actions involving personal injuries) to be brought outside the usual six-year limitation period but within three years from the date of discoverability, subject to a 15-year long-stop. The proposals are unlikely to be on the statute book for a number of years, however. Conclusion Whether prescription or limitation applies will depend upon whether the contract is governed by Scots law or English law. In either case, once the solicitor has established the relevant time period and has decided to proceed with the claim, he must then be sure to stop the clock by raising either court proceedings or arbitration proceedings. Source: Burness May 2003

Thread updates are in Scotland section, under Court Action though their Scottish lawyers are adamant that the case will be heard under English law as the agreement is made up of those components, WTF?????

An interesting point from Advocate from 2007:- I think the first point must be that while I appreciate the comments that people make regarding my argument, it is based on an understanding of the law of prescription as it applies in SCOTLAND. The law in England and Wales and Northern Ireland for that matter is different. s.32 of the limitation acticon 1980 therefore has no application in the Scottish courts and the concepts used in that Act are different as a matter of law and principle. A consumer making an argument based on the 1980 Act in the Scottish courts would be unsuccessful. it is not OUR law.

They have been doing this for over a year now, mostly catalogue debts and mobile phone accounts, agents get megabucks for collecting, usual send letter as a preliminary approach. Mostly all of the "debts" are statute barred and as such are unenforceable.

So got written reply today, Capone are represented by Burness, one of the top guns I believe, so no expense being spared. 1. They still say agreement is covered by English law 2. Once again they refer to the Limitation Act 1980, and case is time barred. They say the claim does not fall within section 32(1)© as it is not for the "consequences of a mistake". UTCCR does not come into the equation, and also does not reflect the case Kleinwort benson v Lincoln City Council. The pursuer has subsequently sought to rely on the Prescription and Limitation (Scotland)Act 1973. The legislation is not applicable as the parties agreement is governed by English Law. 3. The charges are fair and reasonable and not penalties as alleged. The pursuer seeks to rely upon the findings of the OFT, these findings are not a statement of the law. 4. In relation to the terms which are not time barred, the terms giving rise to the charges fall within Regulation6(2)(b) of UTCCR, the terms are in plain, intelligible language and no assessment under the Regulations of the fairness of those terms may relate to their adequacy as against services supplied. 5. In the event that the pursuer succeeds in any part of this claim this is not a case in which an award of compound interest is appropriate. 6. They ask for the dismissal of the pursuers claim. So that is how it stands just now, will be contacting Perry Mason shortly.

Hi , I had an agreement with First National which was eventually administered by GE Money, at the point of sale PPI was added for a 5 year policy (2001-2006), the amount paid upfront came to £359.57(APR 15.7%), this was added to the agreement and subsequent repayments. I approached GE back in 2008 and was basically told to p**s off, not our problem, go and chase the issuer of the agreement, but since the original seller and First National no longer exist, the claim has been in limbo in my files. Having done a bit more digging, I have discovered that the premium was paid to Pinnacle Partnerships, based in Borehamwood and having read some threads in this section I can see the name Pinnacle cropping up in several cases. Anyone have contact details for them and would it be worth my while chasing them?

Hi SFU, I've e-mailed Govan Law to let them have a look at it, will have to wait and see the detail when Capone respond. Then again maybe they wont want to go there (fingers crossed)

Never really got a chance to say anything, the Sheriff read out my summons, the 2 of us approached the bench, she asked Capital One if they were defending and on what grounds? Their lawyer said they objected on 3 points:- 1. Charges were fair and transparent 2. I had claimed compound interest, which they were not happy about. 3. The claim was time barred under the Statute of Limitations Act. On the 3rd point I objected, saying the case would be under Scottish Law, The Prescription & Limitation (Scotland) Act 1973 which I had previously informed Capone in an e-mail, which was also acknowledged by them. Their lawyer was adamant that because the agreement was set in English Law, the Limitation Act would apply. To stop a full blown argument taking off, the Sheriff intervened and told Capone to submit their defence in writing within the next 14 days, setting Proof hearing for 21st December, I was directed by the Sheriff to read the Scottish Courts website as I would be dealing with the case myself. So the case is still up in the air for debate.

Well that was scary, they had some nice young thing representing them, I think she was as nervous as I was. Well we had a 10 minute hearing with the Sheriff, after a 45 minute wait, Capone objected that the claim was time barred under Statute of Limitations, I had to remind her that the legislation had changed having informed Capone of the change and received an acknowledgement, she said that statute of limitations should apply as agreement was in English Law!!! They also rejected the claim as I had claimed compound interest on the default sums, they have to follow this up with a written submission within 14 days and Proof hearing set for the week before Xmas.

Thanks all for your input, have put argument up to the slimeballs called Capital One, only to receive the following reply:- Thank you for your email. Please note that the person from whom you sought legal advice may not have been aware that your credit agreement is governed by English law.

I am heading to Court with Capital One on Friday and in response to me mentioning that I will be pursuing them using The Prescription & Limitation (Scotland) Act 1973 for default charges, they state that the legislation will not apply as the credit card agreement is set up in English Law. I have told them that the Statute of Limitations would be thrown out of a Scottish Court, this I have learned from reading Advocate's submission in 20 years plus discussion in Sticky. Anyone clarify?

Well Capone have indicated that they are going to defend, time to get out the robes and wig methinks.

Also the response that they made was originally dated the 8th August, never posted by them till the 28th, talk about slow, then they want me to make a decision pronto, deadline for Court is the 14th.