scottish procedure

[buzby]

Not if you're going to claim in Scotland, the fact the accounts have different numbers is immaterial, if you are the same account holder, when the bank defends, it will ensure that your claim is limited to ONLY the amount claimed in respect of all future actions against them, a snappier alternative to a 'full and final settlement'. Trying to keep it under the Small Claims limit is pointless, go for Summary Cause or Ordinary Action as appropriate, as they pay all the costs anyway.

[bikerdave]

Hi folks,

 

I'm going after Lloyds TSB but it has slipped down the priority list recently, due to the bereavement of an immediate member of the family.

 

It's now time to get things rolling again. I've sent the LBA and received the final settlement figure of £750 to be paid into my account within the next ten days. Having threatened them with court action, can I still go down the ombudsman route or would I be better off going down the Ordinary Action route?

 

If it is the OA route, can anybody recommend a solicitor in the Inverclyde area for going after them? I had contacted FCC Financial for their information pack but they wanted 23% of the final settlement fee for doing it.

[buzby]

I've found recommendations to be pointless as any partner will specialise on one particular field, so there's no guarantee you get the same attention. Check with the Law Society of Scotland site, that'll point you in the right direction. Also, consider looking on-line, as you can ask for the case to be held anywhere....

[Bigmac versus]

"Not if you're going to claim in Scotland, the fact the accounts have different numbers is immaterial, if you are the same account holder, when the bank defends, it will ensure that your claim is limited to ONLY the amount claimed in respect of all future actions against them"

 

Hi busby i can assure you that two accounts are treated differently therefore allowing two seperate claims, i have this from a judge i spoke to in regards to exactly this.

 

"a snappier alternative to a 'full and final settlement'. Trying to keep it under the Small Claims limit is pointless"

 

Depending if the two accounts are both under £750 on their own then i would advise two small claims actions.

 

go for Summary Cause or Ordinary Action as appropriate, as they pay all the costs anyway.

 

This action carries a large risk if you were to lose and believe me you CAN lose on a technicality before you even get to present your case, the banks know they can claim costs against this action if they win and they will llok for anything that they can use to get the case thrown out. If you do win your case and i accept there is a good chance you may the costs involved to you having a solicitor present you in court will more than likely NOT be met in full which could leave you with a shortfall to pay.

[buzby]

Sorry, disagree totally. What a Judge thinks is immaterial. Here we have Sheriffs, but even before we get to that stage, if the bank agrees a settlement it will be on the basis of excluding any subsequent claims, this will be binding and not reliant on whether the accounts were separate. The pursuer will not get two bites at the same cherry. Hence the warning. Your suggestion will paint the OP into a corner that will be impossible to get out of. They are not strong on their charges, but if pushed on the OP's right to reclaim, this is a different issue and they'll take that all the way.

 

The action is against the BANK not the number of accounts held by the OP, therefore challenging them 10 times for amounts of £500 each would STILL not be allowed to proceed. It's call an abuse of process.

 

And you think they don't look for ways of throwing things out in Small Claims? SC still carries a risk of expenses - Royal Mail tried this on me, but the Sheriff denied their application due to bad faith, so there's no guarantee either way. However, following the correct route and having efficient counsel is the only way forward.

[Bigmac versus]

Sorry, disagree totally.

Thats your right but im talking through experience here;)

What a Judge thinks is immaterial. Here we have Sheriffs,

When my case was up in Kilmarnock the SHERIFF said if it were different accounts i would have been ok for another claim, HOPE THIS CLARIFIES THIS SITUATION.

but even before we get to that stage, if the bank agrees a settlement it will be on the basis of excluding any subsequent claims,

This is nonsence, if you agree to those terms then thats your look out, we advise when getting settlement not to accept FULL AND FINAL this has been covered so many times.

this will be binding and not reliant on whether the accounts were separate. The pursuer will not get two bites at the same cherry. Hence the warning. Your suggestion will paint the OP into a corner that will be impossible to get out of. They are not strong on their charges, but if pushed on the OP's right to reclaim, this is a different issue and they'll take that all the way.

So the pursuer will not get two bites at the SAME cherry, CORRECT they wont as this IS seen as an incompetant claim, but they can get two bites at TWO CHERRYS, one account one claim.

The action is against the BANK not the number of accounts held by the OP, therefore challenging them 10 times for amounts of £500 each would STILL not be allowed to proceed. It's call an abuse of process.

So by your earlier admission that when you get your first settlement they will exclude you from futher claims, if you accepted that then that acceptance would be for that account, there have been many threads in relation to one account holder and numerous accounts, they all are treated seperately as is the offers that come in from the banks as is their charges and is the claimants right to legally pursue each account through the courts.

And you think they don't look for ways of throwing things out in Small Claims? SC still carries a risk of expenses - Royal Mail tried this on me, but the Sheriff denied their application due to bad faith, so there's no guarantee either way. However, following the correct route and having efficient counsel is the only way forward.

 

SMALL Claims does carry a risk of expenses, finally we agree lol. However this is limited to £75 maximum and very rarely awarded against the losing party, however to suggest the OP going OA which is against all the legal advice there is out there on this subject you are putting the OP in an extremely vulnerable position which could very easily go against them with costs being awarded, these costs are not capped remember.

[buzby]

And at the expense of re-stating the obvious - it is the Defender who in preparing to reach a settlement does so on the basis of a conclusion into all litigation in that matter. This cannot happen with an OA, there is only one case, not several.

 

Your posting of the 2nd March the very course of action you are advocating fell apart. You thought you could do the actions separately, you were wrong - and more than likely barred from raising it again in any track.

 

The OP should at least be aware of the potential pitfalls, but why you recommend a course of action you know to have failed eludes me.

[lizzydripping1]

Can we come to Goa and give you immoral support....?

I am not terribly sure how this forum works, it seems fairly complicated (I'll need to read through it again) but I got a reply sent through my e-mail address from you and I think it must have been for someone else- it was talking about sherifs and courts etc., whereas I am not nearly at that stage, only trying to get my backdated charged (not very succesfully).

[Bigmac versus]

Your posting of the 2nd March the very course of action you are advocating fell apart. You thought you could do the actions separately, you were wrong - and more than likely barred from raising it again in any track.

 

As i had pointed out, "without stating the obvious" that was ONE account and i have said this allows only one action, Are we not talking about TWO accounts here? therefore two actions are allowed, what part of this dont you understand as this has been clarified with a sheriff in my own case.

Advice has been given and it is up to peeps following this thread which choice they make.

Before making the choice PLEASE read other threads.

In relation to my claim, this was 1 account and it is now in the hands of the FOS as i have said in my own thread.

[Bigmac versus]

Summary Cause and Ordinary Cause are available tracks for higher amounts BUT ARE NOT RECOMMENDED for individuals. If you lose in Summary Cause or Ordinary Cause you will be fully liable for the bank’s costs.

This is the advice given.

 

There are other routes available where you have an account which has over £750 of charges, this has been discussed elsewhere and is going through the FOS.

[bigshel]

Hi Bigmac versus

 

My son is pursuing a claim on each of 3 separate accounts. He has sent the letter threatening court action and is waiting for a reply. In the event of actually having to file a claim, should he file 3 separate claims at SC court? He would be dealing with Kilmarnock court like yourself.

Thanks

[Bigmac versus]

May i ask how much each claim is and what bank please?

 

PM me if you wish.

[Bigmac versus]

Ok looked at the thread RB of Scotland, just need the amounts now.

[bigshel]

I've sent PM. Hope it arrives ok

[buzby]

what part of this dont you understand as this has been clarified with a sheriff in my own case.

 

Your inability to realise that one Sheriff does not a precedent make. And lighten up on the red ink. If you wish to use quotes, use the button provided. It makes it easier to read. As to your 'This is the advice given' To whom, by whom? It certainly doesn't work from my experience in Glasgow, but as a busier court, it probably sees considerably more actions than Kilmarnock.

[Vital Spark]

As I noted earlier, you need to raise an Ordinary

Action, not Summary Cause. A solicitor can do this for you, and the fees recoverable from the Defender when you win.

 

Hi Busby. This ordinary Action which necessitates a solicitor, can they handle the two accounts as one case?

 

Don't suppose you could pm me with the name and contact details of a solicitor you know to be winning such cases in Scotland, could you?

 

You sound very knowledgable about all this. Don't suppose you 'd be my "Buddy" on this and perhaps have a template for use whan the bank has not actually complied, in full, with the SAR?

[buzby]

Hi Vital, any number of accounts can be rolled up into a single action (if fact it is often better to do this as if a Sheriff doesn't feel inclined to agree with an action on one account, he may well do so in another, minimising your risk of losing and having to pay expenses. Your dispute is with the financial organisation, so providing this is the same (for example the banking and credit card arm) are separate but you can raise action against them as one.

 

I can't really recommend anyone, as I've had good and bad, and since most specialise in certain types of litigation the chances are the great oner you had for conveyancing will probably pass an action to a colleague who may be awful! A good tip is to visit an office, speak to someone and if they will not handle it themselves, ask to be referred to the person who would pursue your action and ask their advice directly. IF they feel you might be at risk of losing, they'll tell you and you can consider whether to modify your claim to get it to Small Claims, and watch out for the tricks the bank will use to make sure your settlement will be final. If you manage to get past this without this obligation, you can go at them again - and you've lost nothing.

 

Just grab a template and get the ball rolling, it all starts with the SAR, so once you have this just ask on here and we'll all try to push you in the right direction. What works for some doesn't work for all, but we know most of the tactics, and can advise accordingly! Good luck!

[Vital Spark]

Thanks Busby.

 

I did submit my SAR . handed it into my local b ranch with a £10 postal order and received a receipt.

 

They responded well within the time limit but I was sorely confused by the gobbledegook they sent: my dyslexia is worse numerically. I couldn't get help through ehre to sit and work through it so it was n't u ntil recently (last week or so, that I realised the Bank had sent the information with a number of statements missing.

 

This was all it took to totally confuse me.

 

Now I'm not sure whether I should send another £10 with another SAR or write demanding the rest of the statements (I mean statements missing even from within the 5 years they did send). Think I'll try the second route first, though. I don't have money to squander. I'm already ha ving to forego treatments/remedies, which help my ongoing medical condition, as it is.

[buzby]

You've paid for it, there's no need to pay again. If it is incomplete, contact the person who sent it to you and point out what is missing. Also if the abbreviations are gobbledygook, the HAVE to send you a summary of these, explaining what each and every ACK PNT and CHK means! If this wasn't included, demand this too!

[Vital Spark]

It as all included. Think it helped bulk the wad of papers and that didn't help me really. I

 

However, I'll do as you suggest. Heading out right now but will attend to it on my return.

 

Thanks again, Busby.

[Vital Spark]

I've started putting stuff into my own thread, which I eventually found: just so/too bright, ain't I? ;-)

 

Vital Spark vs Lloyds.

[Bigmac versus]

Okay so as to put closure on the scenario buzby and myself were discussing lately i have visited in person both the Sheriff Courts and Trading Standards.

For anyone who missed this debate it was as follows.

 

If a person has two accounts with the same bank and the charges from both these accounts accumulate to say 1100 pounds which is say

Account A 500 quid

Account B 600 quid

 

As the charges from these accounts are under the 750 quid limit of Small Claims the question was could the accounts be kept seperate and therefore have seperate claims which would be two small claims or as they are with the same bank would this action be seen as multiple claiming and the second Small Claim basically being thrown out as incompetant because they should have raised one action in regards to the two accounts.

 

The Small Claims admin at the Sheriff Court said as they are TWO seperate accounts with seperate account numbers then they see that two Small Claims would be accepted, i asked for anythingi in writing that would say this and was advised there is nothing in regards to this.

 

 

Met a Senior advisory officer in legal services for the Trading Standards and posed the same question and was told the exact same two accounts two claims and went on to say that one account can be operated without the other being affected as in one can be closed and the other can stay open so there is no doubt about them being seperate as in claiming also.

The advice given from them was that claims over 750 quid in Scotland

was to use MCOL if possible and ruled out Summary cause or Ordinary Action due to possible costs, this is similar to Govan Law center who say over 750 quid in Scotland go through the FOS again avoiding Summary Cause and Ordinary Action, at the CAG over 750 quid we advise any of these options and to which suits the claimant best.

[buzby]

Unfortunately none of the above factors in that would happen in a 'real' situation. The reason staff won't 'back it up' is because they want to be helpful, and whilst it could be construed to be two actions (for convenience of process) this is not a one-sided affair. The Defender (Banks) will not sit idly by, they will make special applications to have them combined (then dismissed as over-limit) if served at the same time, or whilst the first is in progress, only agree to a settlement in that embraces a clause of no further action - killing the potential for a second action. This isn't rocket science, it has been going on for years and they know how to work the system to their advantage. ALL this is avoided with a single action. Anyone contemplating doing multiple actions should be prepared for the first action being the last. It may not happen every time, but both tracks carry risks.

[Bigmac versus]

Ok here is some Jurisdiction: subject matter from case law

 

" Should not be vexed more than once for the same breach of contract or delict, which underlies the establishe rule of practice that a single act amounting either to a delict or a breach of contract cannot be made the ground of two or more actions for the purpose of recovering damages arising within different periods but caused by the same act"

 

As we are talking of two acounts then the above where it says " breach of contract or delict" as in singular, so we can now say for sure it is seen as two singular breaches of contract, therefore two actions would be fit.

 

 

" Though the delict or breach of contract be of such a nature that it will necessarily be followed by injuriuos consequences in the future, and though it may for this reason be imposible to ascertain with precise accuracy at the date of the action or of the verdict the amount of loss which wil result, yet the whole damage must be recovered in one action, because there is one cause of action"

 

The reference of one "cause of action" would be seen as one account, therefore two accounts are "two causes of action" which allows two actions can be raised.

 

Ths advice given to me was from Sheriff Courts and the Legal dept of Trading Standards, as there is no mention of this in print to be got anywhere and it will be in case law and need to be found then the advice given is from people whos proffession it is.

[sabu]

Hi - anyone able to help me with the works spreadsheet for calculating interest?

 

Am I right in that when sending the list to the bank you do not add the interest?

 

What about the three lines at the bottom? i.e. Total claimed at date of service, judicial interest at current rate of 8% and total claimed at date of judgement or payment. Can anyone translate these for me??!!!

 

Thanks