Pohare v Bank of Scotland

[pohare]

Edinburgh Sheriff Court have replied to me as I had made a typing error in my small claims form . The letter states that they would 'like to have this claim lodged' so have attached details of how best to 'lay out' my claim on the form

 

I had only put one claim forward, as I wasn't sure if Edinburgh Sheriff Court would put a SIST on it or not. But apparently, they aren't!

 

Will let you know how I get on.

[rory32]

Yup Edinburgh seem more than happy to proceed with claims. Any problems just ask. Best of luck with your claim

[texel]

Rory32 Where is the Horse Shoe bar and whatn time is the meat5 on Dec 8th?

[pohare]

Well, I had my small claims date set for 12th February this year and have just been served with the Bank of Scotland's intention to ask for a sist on February 26th

 

I have no idea what this involves. Do I turn up on that date and what do I say? I am a bit nervous now

 

If anyone could help, I would appreciate it.

Thanks in advance.

[pohare]

Oh and do I need to get a solicitor or is me turning up sufficient?

[rory32]

No you don't need a solicitor. Have a read here http://www.govanlc.com/sisted.pdf and here JASON COLEMAN+AARON THOMSON v. THE CLYDESDALE BANK+THE BANK OF SCOTLAND, 07 September 2007, Sheriff D. Pyle Basically you just need to turn up and state your reasons why a sist should not be granted (it's a good idea to have notes with you). Edinburgh tend not to grant sists on bank charges so you should be okay.

[pohare]

Thanks again for your reply, Rory.

 

I have had a look at both of those links but am unsure of what exactly to say when it reaches court. Do I make bullet points and state that the sist should not be granted because a)..... b)..... and c)....? Will it just be a case of me making a statement and then waiting for the outcome?

 

Can you tell I am nervous?

[rory32]

Do I make bullet points and state that the sist should not be granted because a)..... b)..... and c)....?

That's what I would do. I made up a list of objections to sists a while ago I'll have a look and see if I can find it. Remember the sheriff will make allowances for the fact that you are an ordinary member of the public and not a lawyer.

Will it just be a case of me making a statement and then waiting for the outcome?

Once bith sides have made their arguments the sheriff will make a decision one way or the other. TBH the sheriff has normally made a decision before you make your statements but you still needto attend and make one.

[rory32]

Okay found it. The main points of your objection to the sist are:

 

1. The onus is on the bank to persuade the sheriff that the case should be sisted. The case that supports this view is Connell v Grierson 1865 in which Lord Deas stated "Prima facie it is a matter of right to either party to insist upon the cause going on, and the onus lies on him who wishes to stop".

 

NOTE: Prima facie just means on the face of it.

 

2. It is improper to sist a case pending the outcome of similar one until the pleadings in both actions have been fully adjusted. The ruling that supports this was established in the case of Clydesdale Bank v D & H Cohen 1943. This ruling has been upheld by the Inner House of the Court of Session and in N G Napier Ltd v Corbett 1963 and Maley v Scottish Ministers 2004.

 

3. The OFT's case is at a very early stage. Written pleadings are unlikely to be fully adjusted for at least a year if not more given the complexity of the case.

 

4. The rule of Cohen applies and it is improper to sist a small claim in Scotland pending the English OFT case.

 

5. The OFT's case is primarily concerned with the issue of fairness in terms and conditions. Penalty charges are unlawful at Scots common law and therefore the OFT is not a test case in relation to this claim. The OFT case can not determine the outcome of a case based on Scots common law.

 

6. The OFT case is of minor relevance as it is not looking at the Scots common law position.

 

7. The outcome of this claim can not be determined by the decision of the English High Court. While the decision is potentially persuasive, it is not legally binding in Scotland.

 

8. The OFT's case is a public law action whereas an individuals claim (as this is), at common law, is a private law action based on individual facts and circumstances. Accordingly, this case should be allowed to proceed.

 

9. It is now within judicial knowledge that all banks have settled nearly all claims prior to an evidential hearing. Allowing this claim to progress will not take up significant court time.

 

10. If appealed, the OFT test case may take 3 to 5 years to be determined. Given the very modest sum of monies involved in this case, it is inequitable and inappropriate to deny the litigant access to the judgement of the court.

 

11. The Master of Rolls in England has left it up to individual English judges to access applications for stays. English claims are still being heard and banks paying out.

 

12. A sist would contravene my human rights under The European Convention of Human Rights as set out in Schedule 1 of The Human Rights Act 1998 Article 6.1

 

13. This article provides that in determination of their civil rights everyone is entitled to a fair and public hearing within a reasonable time. As previously stated the OFT case is of minor relevance and is at a very early stage. The case may take several years to reach an outcome.

 

14. My case, while important to me, is of very little importance to the bank. Nor can the bank fairly argue that the principles of the case are important to them given the number of cases which have been settled shortly before the trial after a defence has been submitted.

 

(Use 15 & 16 if this applies)

15. I have suffered hardship as a result of the bank's charges. I will continue to suffer hardship if a sist is granted. While the bank has almost unlimited funds, I do not. The return of these charges would make a significant difference to my life.

 

16. If a sist is granted the bank will still be allowed to make future charges causing me continued financial hardship.

[pohare]

Thank you so much, Rory. Again, so helpful.

 

I will definitely be using no's 15 and 16 - the total of all of my charges almost equals my overdrafts on both my current accounts with the BOS. Despite having asked them to convert this into a loan to consolidate the overdraft and pay it off quicker, they refused. They'd rather charge me 25% interest on the overdraft than a lower rate on a loan, clearly

[nosnewois]

Good luck m8.

I'll be watching this thread anxiously as i'll be in the same boat very soon.

[pohare]

Well, my day in court is almost here - it's on Tuesday

 

I have my list/bullet points of reasons why the court should not sist my claim. Does anyone know if I need to take copies of my original claim with me? Also, do I need to contact the Sheriff Court beforehand or do I just turn up on the day?

 

Husband is coming with me. Appointment is at 10.30am and I have no idea how long it will take or what to expect.

 

Will come back on and let you know how I get on though

[Bigmac versus]

Good luck with court, please let us know how you got on.

Is this purely to see if the case is to go ahead, if so then the sheriff will decide if a sist is to be granted and if not will set a date for you to return where you will need your court bundle, if the bank hasnt settled by then.

 

Take your objections to sist with you. (3 copies)

[pohare]

Thanks for replying

 

Yes, this is to decide whether the court is to grant a sist or not. Edinburgh seems to have gone ahead with claiming charges back so far...let's see how lucky I am!

 

Thank you re: 3 copies. I will print them off now.

 

Hoping this goes in my favour on Tuesday - now that the small claims limit has gone up to £3k, I could reclaim the rest of my charges at the same time if so. Will let you know how I get on.

[Bigmac versus]

Please do, I will keep my fingers crossed for you.

[pohare]

Updated incase anyone is in the same boat as me.

 

I went to sheriff court this morning. Had to wait as they were running a bit later. Just my luck as the bank's solicitor had 2 claims cases today - mine and one before mine. Which the pursuer didn't turn up for. So it was automatically sisted. I had a feeling when they then called my name, the same would happen to me.

The Sheriff was sympathetic, explained to me that she was only allowing a sist because they expected some sort of result from the High Court within a month, that she wasn't putting my case on the 'back-burner' but that she expected me to ask for the sist to be lifted if no progress was made next month. The bank's solicitor also stated that out of 400 or so requests for sists not to be granted, only 386 had been successful. So I wasn't too surprised.

Afterwards, the solicitor for the bank came outside with me and gave me some advice, had a look over the statement I had taken with me and was generally very nice. So I am glad I went. If nothing else, I will know what to expect the next time.

Thanks everyone for your help on here and I will let you know if anything further happens.

[Bigmac versus]

So four weeks from now you need to ask for the sist to be lifted, surely if the sheriff was of this thinking they would have been better to continue the case for 4 weeks.

[pohare]

She did suggest the case be continued as a first option then said that, as the high court case was expected to have some sort of decision in March, that I might be up in Edinburgh again before this happened. So she suggested the sist.

Not ideal I agree

[Bigmac versus]

Never mind the day will come, just a little later than we all hoped for.

[texel]

Interesting on what happened to you. I have to go to Perth Sheriff Court onj Friday on behalf of my son against BOS. They had a sheriff officer hand deliver a note Headed. Intimation addresss ----- You are herby served with the attached Incidental Application so you may not pretend ignorance of same and are advised that this case will call within Perth Sheriff Court on 29th February 2008 at 10 am etc etc etc. What is interesting nothing has been heard from the court about a change of date the return date is not until 21st March!! also was a letter from Gordon for the defenders respectfully craving the Court to sist the action pending the OFT action etc. I will give the \court a phone later this am to see what they say. Will let you know

[pohare]

Hi

 

Does anyone know, should I have received some sort of letter through from Edinburgh Sheriff Court telling me when they have stayed my case until? I have had nothing from them other than the sheriff say that it was stayed until 'the end of March'.

 

Also, could anyone move this onto the Bank of Scotland board for me? I don't know why/how it was initially posted here, sorry!

[Bigmac versus]

Moved

[pohare]

Thanks Bigmac

 

Sorry to ask again, but incase anyone sees this. Has anyone who has had a sist granted on their case had it confirmed in writing? The Sheriff told me it would be sisted until the end of March but I haven't had word back from them as to when this will be? I would have thought I would need to be told in advance when the date was in March/April if I am due to be called again?

 

Confused...can you tell?

[texel]

How about phoning the court to find out;)