scottish procedure

[neilnicky]

Managed to get the sist opposed. Judge was brillent as she done all the work for me. The cockyness that i had the night before soon went when i found i was up against a QC.

 

Thanks to the govan law center and everybody on these pages as well.

 

I have a prelimianry hearing next week.

 

Any advice or help again, would be much welcome.

 

Thanks again

 

Neil

[buzby]

You may find that the Prelin might not happen, they'll be scurrying around to settle, because their sist attempt failed! Keep us posted!

[maroondevo52]

Superb Neil ! Was that at Edinburgh Sheriff Court ?

 

Regards.

 

Scott.

[neilnicky]

Yeah it was mate.

 

She never granted the application of 2 sists that day by 2 different banks (Abbey and HBOS) but they both had the same QC.

 

Cheers

 

Neil

[rory32]

Well done Neil

[rory32]

Neil, what did the sheriff give as the reason for not granting the sists?

[neilnicky]

To tell you the truth, i got a little lost in all the legal mumbo jumbo between the judge and their QC.

 

 

But the basic reasons which she seemed to accept were about the english courts not binding on scottish courts.

 

Also, she asked me if i would accept the verdict of the english court on the OFT ruling if it went in favour of the banks in which i said "no".

 

I also argued, and she agreed, that not allowing the sist would not take up court time.

 

I got a lot of my submissions from the Govan Law Center on opposing the sist which was of great help.

 

At the end of my submissions i handed her the copy of the Invernes case from judge Plye, also from the GLC website. When their QC wanted time to look at it and set another date, i then decided to withdraw it as i really couldn't afford to take another day off work

 

Hope that helps

 

Neil

[Bigmac versus]

Great news Neil, money soon me thinks.

[neilnicky]

Hi Guys

 

Still got a couple of questions, if you don't mind.

 

1. What the hell do i take, say or do at a preliminary hearing?

 

2. I was reading the previous posts about splitting the claim in two at the small claims court. (That was what i was intending to do: £750 1st claim then £750 2nd claim. I got the idear from Moneysavingexpert. )

 

Howerver, i can see that if the bank offers me the "full and final settelment" i can't claim again.

 

3. What if i told the bank i will only accept on my terms ie, without the "full and final settlement" part.

 

4. Or what if i win in court, surley i'm then, able to claim for the 2nd part of my claim: as i have successfullly won in court?, with no strings from the bank attached.

 

Thanks again

 

Neil

[Bigmac versus]

Still got a couple of questions, if you don't mind.

 

1. What the hell do i take, say or do at a preliminary hearing?

 

Have you a date for this?

 

2. I was reading the previous posts about splitting the claim in two at the small claims court. (That was what i was intending to do: £750 1st claim then £750 2nd claim. I got the idear from Moneysavingexpert. )

 

I done this back in the early days amongst a few others and this action was seen as an abuse of the courts time, you should claim the total due at that time. Are you aware the small claims goes up to £3000 in Jan 08.

 

Howerver, i can see that if the bank offers me the "full and final settelment" i can't claim again.

 

Actually you can if you dont accept their terms of the settlement, when you sign their acceptance you could remove FULL AND FINAL and replace with PARTIAL settlement, as long as you dont actually appear in court you could bring a second claim using "Res Judicata" If you go to court and you win then any other action brought by you after that may be in danger of being thrown out, CB have done this.

 

3. What if i told the bank i will only accept on my terms ie, without the "full and final settlement" part.

Answered

 

4. Or what if i win in court, surley i'm then able to claim for the 2nd part of my claim as i have successfullly in court? No strings from the bank attached.

 

Answered however this is not a straight forward YES or NO. Which bank is this?

[maroondevo52]

Hi, Neil.

 

I split my first two claims and got away with it. A lot of courts started throwing out more than one claim from the same account. HBOS did not mention a 'Full and Final' with my first claim, so I went Summary Cause with my second. They then had no contact with me what so ever and paid my second claim into the account they had 'closed' after my first claim. They then re-opened it, so I could withdraw my cash.

There's a thread here that should help you............

 

http://www.consumeractiongroup.co.uk/forum/scotland/117078-please-help-court-hearing.html?highlight=prelimery+hearing+in+scotland

 

 

Regards.

 

Scott.

[Bigmac versus]

4th Dec and the Abbey.

You need to get your court bundle together.

[maroondevo52]

Hi,

 

Thought it was HBOS at Edinburgh Sheriff Court.

[maroondevo52]

Sorry, It is Abbey.........

[Bigmac versus]

You have me wondering now Scott,

[neilnicky]

Still got a couple of questions, if you don't mind.

 

1. What the hell do i take, say or do at a preliminary hearing?

 

Have you a date for this?

 

2. I was reading the previous posts about splitting the claim in two at the small claims court. (That was what i was intending to do: £750 1st claim then £750 2nd claim. I got the idear from Moneysavingexpert. )

 

I done this back in the early days amongst a few others and this action was seen as an abuse of the courts time, you should claim the total due at that time. Are you aware the small claims goes up to £3000 in Jan 08.

 

Howerver, i can see that if the bank offers me the "full and final settelment" i can't claim again.

 

Actually you can if you dont accept their terms of the settlement, when you sign their acceptance you could remove FULL AND FINAL and replace with PARTIAL settlement, as long as you dont actually appear in court you could bring a second claim using "Res Judicata" If you go to court and you win then any other action brought by you after that may be in danger of being thrown out, CB have done this.

 

3. What if i told the bank i will only accept on my terms ie, without the "full and final settlement" part.

Answered

 

4. Or what if i win in court, surley i'm then able to claim for the 2nd part of my claim as i have successfullly in court? No strings from the bank attached.

 

Answered however this is not a straight forward YES or NO. Which bank is this?

 

 

Thanks mate.

 

The date is next week

 

I'm aware the small claims goes up next year. Sods law that i started it before they changed the rule!

 

It's the Abbey.

 

Thanks again Bigmac:grin:

[neilnicky]

Cheers maroondevo 52 and Bigmac.

 

Do i have to foward a copy of my court bundle to The Abbey and the court for a preliminary hearing on Tuesaday?

 

As you can tell, i'm hopeless at this legal stuff!

 

 

Thanks again guys.

 

Neil vbmenu_register("postmenu_1262753", true);

[rory32]

At the preliminary hearing the sheriff will only decide if all reasonable steps have been taken before the court action in order to come to an agreement between the Defender and the Pursuer. If the sheriff is satisfied that this is the case then a proof hearing date will be set. The proof hearing is the hearing for the presentation of evidence. Usually the date for this is about 2 months after the preliminary hearing.

[Bigmac versus]

Neilnicky it would be best for you to start your own thread.

[neilnicky]

Thanks to one and all for your help guys.

 

Was back in court today for the preliminary hearing. The banks Qc asked for a sist to be granted again and this time the sheriff went along with his request.

 

Amazing what a difference a week can make.

 

 

Neil.

[buzby]

WHAT a disappointment! You didn't manage to ask the Sheriff why, it the sist application was refused at the earlier hearing, what had changed in the interim? (I'm assuming it is the same Sheriff?).

[neilnicky]

Hi mate

 

It was a different Sheriff. He said that reasonable grounds had been put forward to grant the sist and he was proctecting me from losing a complicated case financiallly.

 

Wish i had said a bit more now, but wasn't really expecting to have to argue about a sist again.

 

Neil

[buzby]

Damn. There was a similar incident in Glasgow last month, I got in late and didn't discover if a QC was arguing the toss, but the female sheriff (whom I understood has already denied the sist at the preliminary hearing) got really snippy with the bank, saying she had already ruled that the sist was denied so was there any new information they wished to impart? The answer was in the negative, and when the Sheriff said the case could proceed, the bank's legal rep said that in that case he would have to seek further instruction and asked for (and got) a postponement.

 

I don't know what happened in the end, but a shame you were given the 'financial' argument (ie warning you off) when your exposure is capped in the Small Claims track.

[Vital Spark]

There appears to be absolutely NO uniformity in our legal system. Why does't one sheriff take direction from what the majority seem to be ruling. Does neilnicky have the right to appeal against that second ruling given that the first sheriff ruled against the sist? maybe on the grounds that a court ruling had been reached so Neilnicky wasn't allowed time to prepare for this second case: if the banks can ask for more time to take instruction, surely neilnicky can?

 

Anyway, if the banks could request a sist a second time, can Neilnicky not ask it be removed on a third occasion? Seems the only just way to me.