scottish procedure

[bigalan777]

can anyone give me some advice. I have just received a letter from bank of Scotland telling me that they are not defending my summary cause proceedings ( yipee ) should I now go ahead and start another summary cause for the remander of my claim straight away or do I need to give the bank the oppertunity to pay back the outstanding amount.

[Mairi]

hi bigalan

Wait till the money is in your account. then do a letter to the court saying "please dismiss summ cause Sc 12/345 as it has been settled" hand over no2 at the same time. I've sent them letters between claims (asking for the rest of my dosh) but they don't bother replying.

[buzby]

This message also appeared in the General Forum under Sky, but worthwhile repeating here in part: Whilst preparing the Small Claims action, I noticed that providing the claims was for a monetary action LESS than £50 (ie £49.99) the Scottish Courts offer a 'cheap' small claims track at £7.00. When handing over the forms, I claimed £49 as financial restitution, along with assurances that 1) There is no debt outstanding to Sky, and 2) That any and all adverse credit data supplied by Sky has been/will be removed from my credit record.

 

Speaking with the Sheriff Clerk (the action is in Scotland) I was advised the cost of this action would be £39 - NOT the £7 originally suggested. On querying this I was told that if your action involved ANY element of forcing the defender to perform some for of action (as I had), the financial discount(s) do NOT apply - as the full fee is due. This does seem unreasonable in a way, as the documetation only refers to the costs in general terms without noting this difference as an exclusion. (All my other actions were always at the full price, so the issue never came up).

 

The solution was to simply draw a line through the secion of the Statement of Claim effectively removing the 'actions required' segment, and leaving the money claim untouched. I did this as I felt it better not to cloud the action if/when a Sheriff rules that Sky should not charge penalties of £4pm to customers they send 'Invoices' to (which aren't Invoices at all).

 

One I get a ruling on this, I can then go back to court and chase Sky for the required actions of credit repair etc etc. So watch out if doing an action for under £49.99 and asking for something else at the same time - they won't allow it!

[richbadams]

Hi I have just joined today.

 

I have been considering pursuing Halifax for approx £4600 (split between 2 accounts) for the last 3 months.

 

I have had an offer from them for £1400 which i have refused and was told off record by bank staff to put in a court claim to be guaranteed of full refund.

 

I now understand that the small claims limts are £750 and £1500.

 

Can anyone who is in a similar position who has been successful give me feedback of how they have got over this hurdle?

 

Is it a trip to the "big court" or is there another way?

 

I have read a number of threads but am now starting to get confused!

 

Many thanks.

[buzby]

As you will see from earlier in this thread (and others) you are limited in what you can do, a Summary Cause action is capped at £1,500, but there's no limit on an 'Ordinary Action', however this is solicitor territory. It does cost you to raise the action, but you can calim these back as the winning party. Be wary of 'splitting' you claim, as banks are getting fly to this and either get them struck out as being in the wrong 'track', or saying you had your chance and irrespective of the dates used as part of the claim, their settlement is/was final. The OA solves this, as they cannot try this on.

[richbadams]

Thanks okonski - do you have experience of going through an OA?

 

Does anyone else reading this have any experience? Especially with HBOS.

 

Many thanks

[willmurr6]

Hi have just been reading with interest,we filed 1 summerry cause claim on 20th oct received papers this morning from sheriff officer, halifax received it on 26th our claim is for nearly £5k we were going to be doing 3 sumerry causes so are you saying we may only get the first £1500 and can't go back for the rest.sorry if i have picked this up wrong.by the way we haven't heard a thing from halifax since sending the LBA,we sent all our letters to the mound edinburgh,but the letters we received back were from trinity road could this be the hold up.HELP PLEASE

[buzby]

so are you saying we may only get the first £1500 and can't go back for the rest.sorry if i have picked this up wrong.by the way we haven't heard a thing from halifax since sending the LBA,we sent all our letters to the mound edinburgh,but the letters we received back were from trinity road could this be the hold up.HELP PLEASE

 

There is always a risk if taking the easiest route (splitting, to get under the cap) some switched-on defence lawyer will bring this to the attention of the court and say the pursuer is taking the wroing track, OR get the judge to agree that if they settle, this will be an end to any and all further actions in this matter - effectively kicking away the foundations for further actions. I can't say whether trhis will happen - it may or it may not, but the risk is always there.

[tubbyrunner]

Hi folks kinda new in town. hope I am inthe right place, fear I may have taken a wrong turning in this huge site.

 

From reading some fo these posts it would seem that many of the scottich claims are endingup in court. IS this the case or are come being settled. I have received my copy statements today and just wondering if I might be in for a long fight.

[smoorach]

scottish claims the same as english ones are not ending up in court most banks are settling out of court. the good points to the scottish system is its much quicker to get a court date and you dont wait months for it to be heard if it ever gets that far. my court has advised me that if you go down the splitting claims route to keep it in small claims ie under 750 they would see that as a waste of court time however they would look favourably on you meeting them halfway as in summary cause as it does still award costs in case of a lost case. if you recieve an offer before court and then put in second claim it hasnt wasted court time really as the bank have not gone to court therefor the oness is on them not the claimant. hope this makes sense as i know sometimes points are unclear.

[jazzycoaster]

Hi all. I'm confused (again!) I have a claim for 4682 pounds. Should I split that then into 3 under Summary Clause and then one to Small Claims? Do I submit all forms at the same time or one after another once one has been settled? I presume all at once so that they know how much in total I am claiming, otherwise, how do they know?

 

Thanks!

[smoorach]

ok in your letters claim whole ammount but when it gets to court you split and submit forms with amount claiming only at time. you submit one at a time otherwise the court will lump them all in together. this would them take you into next bracket for which you must have a solicitor. you could go through english court system if you have english address you could use. perhaps this would be an option for you however you might have to go to england if you were needed to go to court so bear this in mind.

if you decide on summary cause split claims by date finish one then go for next one. does this help clear it up for you?

[jazzycoaster]

ok thanks for that. I've done my letters and they've refused full payment so I'm at the stage of submitting my claim to court. I don't have an english address (unfortunately!) so do I need a solicitor then? Is that the best way to go? Sorry to sound completely stupid! If I submit one at a time, then I don't need a solicitor...? So that means that I will have a few claims - do you recommend small claims or summary cause??

 

Thanks!

[Aaronsdad]

Hi All, I just got back from some time in England. Before I left I took a print out of the advice given in the Govan law centres website. I showed a solicitor friend who did some digging around and she agreed with it under the English sytem.

 

Essentially if you are with the Halifax and live in Aberdeen you can file in either the Aberdeen court (Scottish law) or the Halifax court (English law). It's all to do with domicility. ie where you live or where the bank 'lives'!

Unfortunately BOS live in Edinburgh so you're stuck with Scottish law. Other major nationals like Abbey have English 'homes' so it may be more advantageous to file under the English system.

PLEASE BEAR IN MIND. Should any action be defended vigorously by the bank. You may have to travel to appear. So if you wouldn't be able to get there, think twice.

Of course it's a personal decision, but the ability to file a one off claim for up to £5k and 6 years charges is an attractive one.

 

Hope it helps

 

A D

[buzby]

Hi all. I'm confused (again!) I have a claim for 4682 pounds. Should I split that then into 3 under Summary Clause and then one to Small Claims?

Thanks!

 

As already noted in this thread, if you split, you run the risk of having your subsequent actions struck out when the defender's solicitor tell the Sheriff what you're doing (it's called an 'abuse of process'). There is apossibility thatr your initial action, if defended, will be turned into the ONLY one you can make in that regard - any others dismissed as they should have formed part of a different 'track' (Sumary Cause or Ordinary Action) - it's a risk, you may get away with it, but I've already seen two that have not. You spin the dice and take your best shot!

[Tazz]

If anyone would like to use Moneyclaim and does not have access to an English address - pm me ...................

 

Tazz

[the debt collector]

Had 3 small claims settled with no hint of a defence about multiple claims. According to the clerk in my local court, its the banks wasting court time and NOT the "pursuer".

Ordinary action is also not an option. This will result in lawyers and costs if things go bad.

 

 

I submitted a claim for my first £750 of my claim and Abbey have sent me back a letter saying they will pay my claim which represents full and final settlement of my claim - question is do I reply and say I will accept this as part settlement (as I still have another £1100 to claim - which I think I will submit a summary clause this time) so that it does not stop me from claiming again??

[buzby]

This is always a problem as they're using this to forestall your attempt at 'splitting'. If you accept their £375 that will be an end to the matter and no further actino can be contemplated. Your next problem is even IF they agree to paying your £750 claim in full, this will similarly be if full and final, so you will continually paint yourself in a corner.

 

I'd recommend sending them a letter stating you have now calculated the total amount due back amounts to XXXX and this claim supercedes your earlier submission. Say that you hope you will be able to reach an amicable conclusion to this matter, and see what happens.

[daveyloon]

It would not be frowned upon whatsoever. You are quite within your rights to use an English address. You Need an English Postal address but this does not mean you have to live in England, it's a simple question of Jurisdiction. An English court can hold jurisdiction over your case if your bank fits any of the jurisdiction criteria. This would include "HOLDS PERMANENT RESIDENCE OR CONDUCTS BUSINESS IN" etc blah de blah.

There are several reasons why this issue could matter. In general, most people will want to raise proceedings at their local court. It is much easier to attend hearings at your local court. However, if your claim for bank charges is in excess of £750 (the small claims limit in Scotland) or £2,000 (the small claims limit in Northern Ireland), then the ability to sue in England & Wales may be attractive as the small claims limit in England & Wales is £5,000. Using the small claims procedure is important because it is the only court procedure that caps legal expenses in the event of loss. In other words, the small claims procedure enables you to raise litigation without the fear of massive legal expenses in the event of failure.The rules on where you can raise proceedings - known as 'jurisdiction' - are set out in the Civil Jurisdiction and Judgments Act 1982, as amended by the Civil Juridiction and Judgments Order 2001. Schedule 4 of the 1982 Act (as amended) regulates the court's jurisdiction over consumer contracts. This includes a consumer's bank or building society account.Importantly, para 8 of schedule 4 provides that a customer is entitled to sue their bank where they live (where they are 'domiciled') or where the bank is domiciled - the relevant parts of Schedule 4 are reproduced below. In contrast, a bank can only sue you (as a consumer) where you live.So, for example, if you bank with the Royal Bank of Scotland but live in London, you can raise a small claims action either in London or Edinburgh. Alternatively, if you live in Glasgow, but bank with the NatWest, you can raise a small claims action either in Glasgow or London. Likewise if you live in Aberdeen and bank with the Halifax plc, you can raise a small claims action either in Aberdeen or Halifax (cf. the Bank of Scotland's 'domicile' is Edinburgh; however, many other bank & credit card companies will have their registered office in England). A company 's domicile is usually established from where it has its 'seat', that is usually its 'registered office' or the place where its central management and control is exercised: section 42, 1982 Act. Thus some consumers may have a choice where to sue.Where proceedings arise from the operation of a particular branch, agency or establishment, proceedings can be raised where that 'branch, agency or establishment' is situated - from section 44 of the 1982 Act.It is understood that the England & Wales Money Claim Online service requires a claimant to have an address in England or Wales, and therefore, if you are raising proceedings in England you would have to forward your claim to a particular County Court by post. While raising proceedings in England will entitle you to sue for a maximum of £5,000 under English small claims procedure, if the claim is defended you must be prepared to travel to England to present your defence. Accordingly, you should think very carefully about this issue, weighing up all of the pros and cons.

 

Can my bank's terms & conditions determine where proceedings are raised?

 

Paragraph 9 of Schedule 4 (see below) allows parties (the bank & you, the customer) to agree that one part of the UK has 'exclusive jurisdiction'. That is known as 'prorogation' of jurisdiction. In other words, that proceedings must be raised either in England, Scotland or Northern Ireland.

In general, paragraph 9 can only apply if both you and your bank were domiciled in the same part of the UK when the account was opened (i.e. either both in England/Wales, or both in Scotland, or both in NI) and the contract contains a clause conferring exclusive jurisdiction to one part of the UK.

You should therefore check your bank's terms and conditions.

A clause which states:

• "If your address is in Scotland, Scottish law applies to the contract between you and us. If you live elsewhere, English Law applies between you and us" (Abbey National plc T&Cs) or
  "This agreement is governed by the law in Scotland" (Bank of Scotland/HBOS T&Cs)

is unlikely to confer exclusive jurisdiction.

Firstly, such clauses do not deal with exclusive jurisdiction - they simply deal with the application of common law rules. The courts have held that such clauses do not go far enough to confer exclusive jurisdiction.

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.

>

 

CIVIL JURISDICTION AND JUDGMENTS ACT 1982 AS AMENDED

SCHEDULE 4 AS AMENDED BY CIVIL JURISDICTION AND JUDGMENTS ORDER 2001

Jurisdiction over consumer contracts

 

7. - (1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this rule and rules 8 and 9, without prejudice to rule 3(e) and (h)(ii), if -

 

(a) it is a contract for the sale of goods on instalment credit terms; or

 

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

 

© in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled or, by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and the contract falls within the scope of such activities.

 

(2) This rule shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation, or to a contract of insurance.

 

8. - (1) A consumer may bring proceedings against the other party to a contract either in the courts of the part of the United Kingdom in which that party is domiciled or in the courts of the part of the United Kingdom in which the consumer is domiciled.

 

(2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the part of the United Kingdom in which the consumer is domiciled.

 

(3) The provisions of this rule shall not affect the right to bring a counter-claim in the court in which, in accordance with this rule and rules 7 and 9, the original claim is pending.

 

9. The provisions of rules 7 and 8 may be departed from only by an agreement -

 

(a) which is entered into after the dispute has arisen; or

 

(b) which allows the consumer to bring proceedings in courts other than those indicated in those rules; or

 

© which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same part of the United Kingdom, and which confers jurisdiction on the courts of that part, provided that such an agreement is not contrary to the law of that part.

[buzby]

True, but practicalities also come into play - if the action is to be defended, you have the aggitional expense of having to go to the English court, and for any continuances which the defender or court can ask for, each time costing you more money you cannot reasonably be expected to charge within the SC track. IMHO your local court always saves on the blood pressure!

[setonsteele8977]

DOH!!

 

Where would I find the summary cause forms guys? They make so much sense for claimants like me. No need to split.

 

 

Seton

[buzby]

Same place as you get the online froms for Small Claims, look down the list and you'll find the forms and information booklets in PDF form - they're entitled 'Summary Cause' to make them a bit easier to find!

[Ropey]

I'm finding it hard to believe that a sheriff would accept a bank's solicitor asking for there to be no possible future action against the bank. Are we to be allowed only one recourse to the court?

 

Surely, if further transgressions occur I must be allowed to pursue it despite how many times the bank has previously been found with it's hand in my wallet.

[buzby]

No - of course the Sheriff wouldn't - the issue is based on a simple premise, is the Pursuer using an inappropriate action to make the defender pay? Nothing wrong with that - so you take the bank to court and they settle prior to a hearing, as part of the settlement you agree to their financial remedy 'in full and final settlement' of that claim. If you then attempt to raise a fresh action, but then present as evidence the next group of statements for the next time period, that would be viewed as an abuse of process if it even got that far (due to the full and final settlement). However - if your next claim for overcharging concerns a different issue from the usual wholesale ravaging of ones statement with the same charges you queried before, then it is to all intents and purposes a completely fresh action and you are within your rights to pursue it.

 

But if it is just more of the same, from where you previously left off - when the correct action was to follow the Summary Cause or Ordinary Action track instead - but small claims was used simply to gett things moving, that would fail in line with the undertaking given on the original settlement.

[Aaronsdad]

Hi, sorry to hijack your thread. I have been helping a friend with his claim (he has no computer). I'm lucky enough to be able to use the English system but he has to use the Scottish one. I love the irony of me Scots him English!

 

Anyway, as he's moving to Spain in Feb he suggested that the quickest way to recover his £4k charges in Scotland would be to use a Solicitor for one hit and hang the expense. I can see his logic but I've trawled and trawled through this site (and Govan law centre) and I can't find anyone who has done this, or even contemplated it.

Any help out there?

Cheers

A D