scottish procedure

[pierre69]

Hi can you give me a link for a template for filing for summary cause in Scotland the only template I see uses english statutes?

regards Pierre

[buzby]

Yes, there's quite a few who pursue actions in the courts using an Ordinary Action (OA) which has no upper limit. The problem here is only that is is more solicitor rather than user driven, hence the lack of community experience. You really don;t need any 'help' as your solicitor will arrange everything, just make sure they are attentive, and claim ALL the necessary expoenses where required. Normally, an LBA from a Solicitor doesn't go through all the standard delaying tactics that a Small Claims on does!

[buzby]

Hi can you give me a link for a template for filing for summary cause in Scotland the only template I see uses english statutes?

regards Pierre

 

Well, the PDF and MS Word Template requred to generate the necessary Small Claims & Summary Cause forms, along with the advice booklets are available for download from the Scottish Courts website (publications) is that what you mean?

[haircut]

I've started a claim via MCOL. From what I understand English Law you can claim 8% interest. Scot Law cliam what you like, as long as you can justify it. Is there anything stopping me claiming my charges under English law & therefore using the higher SC limit & then use Scot Law to cliam the interest separately & at a higher rate. My justification for this is I would claim the interest at the rate they charged me (the overdraft interest rate).

[buzby]

You've to balance two things, the fact that they'll settle before court, and they might not. If you load the charges, they may be inclined to fight you, so what could be an easy victory might end up a point of prrinciple and if you DO suceed, you might not get all your expenses back. Whereas, if you keep it simple as to what your actual losses were, a settlement can quickly follow.

[Aaronsdad]

Thanks Buzby.

He's got as far as sending his LBA so the groundwork is done. Just a matter of finding a decent solicitor in Aberdeen.

 

Ta

A D

[buzby]

Good - sorry I can't recommend any as I''m Glasgow based. Any Scottish CAG members out there happy with a solicitor in Aberdeen they'd like to recommend...?

[feelconned]

Hi buzby - you seem very sure that if I accept the banks offer as part settlement that I can not go on to claim in court for the rest of my claim. Is this for certain or can I try my luck? Surely the banks are just making up the rules as they go along i.e. If you cash cheque end of case. If I do go to court and it is thrown out, is all I can lose the £39 for bringing the action?

[unicorn96]

Hi Aaronsdad,

I am also looking for a solicitor to take forward an Ordinary action in Aberdeen against RBS for about £3000. Perhaps we can help each other. Thought it would be eaiser just to trawl through the yellow pages phoning until i find one that doesnt use RBS as there bankers.

Pauline

[scottishpol]

I know of a good solicitor in Aberdeen, if you would like his name PM me.

He helped me out when I was a student up in Aberdeen.

I do not know his area of expertise but I am in no doubt he will be able to point you in the right direction if need be.

[Aaronsdad]

Hi Pauline,

I'm not actually doing this for myself but on behalf of a mate. however, he had an interview with a solicitor in Rubislaw Place yesterday and, in his words, he wasn't negative! I've brought my mate to the scottish equivalent of MCOL but he's doing the legal thing. When we hear more, I'll let you know!

 

A D

 

PS Is there anyone I haven't told that I WON?

[buzby]

Hi buzby - you seem very sure that if I accept the banks offer as part settlement that I can not go on to claim in court for the rest of my claim. Is this for certain or can I try my luck? Surely the banks are just making up the rules as they go along i.e. If you cash cheque end of case. If I do go to court and it is thrown out, is all I can lose the £39 for bringing the action?

 

Oh you can do it - but only if the Sheriff is fast asleep would you win! By accepting the settlement cheque 'in full and final settlement', you are actually contracturaly agreeing to this. So if you raise an action for the balance, all the defender has to do is show your original agreement to settle, and you'll be told to take a hike. Not only that, the defender can claim you're being a 'vexacious litigant' and not only have you pay THEIR defence costs, they could ask the Sheriff to have you formally named a VL and be precluded from raising ANY court action - all for what?

 

The court isn't a playground, you can't agree something and change your mind on a whim because it might suit you better. Since all the court does is mediate in disputes, by saying one thing and doing another it is the BANK who become the injured party, and any sympathy the court had for your predicament would evaporate. If you want the full amount, then only accept this. I have heard of some who accepted their first cheque as part-payment only to have the bank argue later it was a full and final, but with no written agreement thry couldn't prove it. If you go down that road, just make sure at no time did you acknowledge or agree that the payment was 'full and final'. Since the banks will rarely cut a cheque without such agreement, there's no point in playing fast and loose!

[RosieG]

Hi there,

 

I'm at the scary court stage. So far it has been ok. I'm claiming for nearly £3,000 and have split it for each year claiming (under £750) and have had to split 2005 into two parts. That would mean 5 claims at the small claims court. Having read a few comments i'm worried that thisd will get thrown out or I'll only be able to claim once. Any advice. My bank (BOS) did offer me £800 as a gesture of good will. I didn't take it but am starting to wish I did. I need some moral support and expert advice. PLease help!

[buzby]

I'm at the scary court stage. So far it has been ok. I'm claiming for nearly £3,000 and have split it for each year claiming (under £750) and have had to split 2005 into two parts.!

 

I'm not an advocate for splitting - if you are sure your claim is just, then raising a Summary Cause or Ordinary Action depending on the amount sued for is the way to go. Sure, they cost more than a Small Claims, but there's no risk that the bank will misunderstand your tactics, and you get your (increased) expenses back when you win. The banks are not daft, and I'm sure they read these forums too - if they settle your first claim, they'll ensure you cannot raise a similar action for the same problem, simply by selecting a range of dates. In your case I'd go the route of an OA, and you don't have to worry about not getting all you are due. There is ALSO the satisfaction that an OA also results in a precedent (which SC and SC do not) so the incentive for the banks is to keep it out of court.

[Mairi]

Hi RosieG,

Your best bet is to split into 2 summ causes, it'll take less time and worry.

 

- if they settle your first claim, they'll ensure you cannot raise a similar action for the same problem, simply by selecting a range of dates.

 

Not True...

I,ve taken on BoS for multiple claims.. I'm on case no4 for me, won 3 claims for hubby and 2 for my mate.

Total refunded so far ......£7000.

This is a self help group, not a situations vacant for any solicitors looking for work.

[buzby]

This is a self help group, not a situations vacant for any solicitors looking for work.

 

Realy? Do you know of any solicitors needing work?

 

As for your advice - explain how the OP gets out of a situation where the settlement is made as 'full and fiinal' effectively barring them from subsequent action? You may have been lucky and not had that applied in your specific case, however since ALL the pursuers fees are paid by the defender when successful, the cost of the action is immaterial.

 

Following the right track means they cannot hijack the action for the reasons previously stated, your suggested method gives them an opportunity to save lots of money. You don't work for a bank do you?

[Mairi]

You don't work for a bank do you?

ROTFLMAO

What's with the insults!!!!!

[buzby]

I think I was being accused of being a Solicitor!

[Aaronsdad]

Sorry to stick my oar in!

 

I read something here that didn't ring true.

 

It took a bit of digging around but I found the thread. I know it's under English law but the rules are usually similar. -----

 

Thankfully, this is not actually true.

 

For any agreement to be binding in English law each party to the agreement must provide what is termed 'consideration'. This simply means something of value in the eyes of the law. With these offers in full and final settlement your consideration consists of a promise not to sue for the remainder. The bank however, does not provide any consideration because they are only giving back what in law belongs to you. The law does not enforce onesided promises. In order to establish that they have provided consideration they would have to prove that the charges were lawful.

 

So the agreement accepted by your husband is meaningless and you may pursue the remainder of the charges, unless - and this is highly unlikely - the agreement was made by deed.

 

Just thought it might be useful!

 

A D

[feelconned]

Do I take from this that I can cash my cheque and write to the bank stating that I accept it as part settlement and that I could go ahead and claim for the rest by summary clause and I would be within my rights? There is no mention of 'consideration' in their letter' they only state "This cheque is tendered without admission of liability and is in full and final settlement of your claim and your encashment of it will be taken as your acceptance of this".

I would wish to cash the cheque before I write as they would probably withdraw offer if I let them know what I intended.

Your thoughts?

[celticjimmy]

is a summary cause procedure capped at £1500,or is it £1500 plus interest they repay?my claim is for £1500.

[buzby]

This cheque is tendered without admission of liability and is in full and final settlement of your claim and your encashment of it will be taken as your acceptance of this".

 

If you cash the cheque, that's an end to the matter - full stop. They've told you the terms of the settlement, you cannot modify this without their agreement, and they'll be counting on folk seeing the cheque and going misty-eyed. There's no ambiguity whatsoever, it is not a 'consideration' but an offer without liability.

[buzby]

is a summary cause procedure capped at £1500,or is it £1500 plus interest they repay?my claim is for £1500.

 

If you CLAIM is for £1500, then there's no problem - any interest will be additional at 8% from date of judgement. However if you mean you want to charge them £1500 + plus interest to arrive at a claim for £1600 or whatever, you're over the limit and will have to go to an OA. For the sake of a hunderd or so, its easy just to go for the £1500 plus court costs.

[feelconned]

So what is meant by Aaronsdad and his "consideration" post.

[buzby]

English law has no relevance in a Scottish court. If a payment is made in full and final the terms of that payment become binding on the recipient. If you accept the payment you are then disadvantaged in any quest to obtain more for the same action.