Forcing Court To Lift A Sist

[marko2002]

Hi guys again, my question is quite simply can we force a court to a point of law in insisting that they lift a sist purely based on the fact that there still is no definitive outcome on the OFT test case. Given the nature of law and the many interpretations that often develop from one case to another finding a particular point is obviously difficult but my understanding of a sist is that it is "improper" to sist based on any case which has no definitive timescales and given that the OFT case was already delayed it's now being said that it could go on for many months to come and even when a decision is reached it will be apealed anyway further prolonging the matter!.

 

Can anyone suggest a course of action as I personally would be prepared to return to court with an arguement as I was advised at the time of sisting by the sheriff (based on my argument that the case could take some time) that they would consider looking at the case again if it appeared to be taking too long.

 

Thanks in advance.

Marko

[rory32]

What was your original argument against the sist?

[marko2002]

Basically that 1)this test case refers to English law and not Scottish law therefore it should be up to a Scots court to run it's own test case if it so wished, otherwise proceed with the case according to law and not deny it

2)As no definative timescales could be concluded it was improper to sist as this again was denying me the right to legal course based on a case which was most definately to run possibly over the course of a year or so

 

Didn't wash with the Sheriff though, but I'm looking for angles on this one as I for one have just about had it again with the banks - if I would have had presence of mind at the time I'd have asked for a suspension of all possible bank charges but I might do this if I return to try and lift the sist!

[rory32]

Which sheriff court was it?

[marko2002]

Airdrie SC, can't remember exactly but it was (I think) September/October last year

[marko2002]

Reading with interest some of the comments made by Brian Doctor QC (for the OFT) in the eighth day of the OFT test case, here yet again we have a statement that no matter how long this test case last's (currently expected to last until at least next week now) the loosing side will no doubt appeal which then brings the question how long are we expected to wait, or another way of putting it is how long are we obliged (by law) to wait and how long can a Sheriff sist a case pending this outcome?. My guess is there are no hard and fast rules but surely there must be some precedent out there?.

 

Just in case anyone missed the latest news on this ...

BBC NEWS | Business | OFT accuses banks over charges

[marko2002]

OK, I've decided that I'm going to go for it and request that the court lift's the stay on my case on the grounds that although there may be a final decision in the pipeline this decision will be appealed by the loosing party which will further delay the matter therefore realistically there is no imminent decision and won't be for potentially 12 months. If anyone has any advice and/or can think of any test cases/examples that I can inlcude with my request I would be most grateful.

Cheers

Mark

[texel]

I am going to court tomorrow on behalf of my son. The bank are going to ask for a sist. I am going to try and avoid the sits on the grounds that the funds due are to pay the inland revenue for taxes. I hope it will work. will let you know;)

[miss scotland]

I have just phoned my own local court to find out the present situation with filing a bank charges claim, have been told that no claims will be heard until after the test case, asked if any courts were allowing claims to be heard and she said no one was allowed too it was a goverment ruling, it would be frozen until then and I could do nothing about it even if I appealed to lift.

[texel]

That does not sound fair!!!! Which Goverment English or Scottish???

[miss scotland]

sorry unsure which she was adamant that no court in scotland would proceed as they were not allowed, I asked about credit card charges as well but they had never had any of these kind of claims, so unsure what to do know!!!

[marko2002]

I would guess the clerk that you spoke to is very ill advised to say the least and was simply shooting their mouth off, as for the government to rule on such would open up a whole can of worms and would contravene the entire judicial system outright, not to mention there are still courts granting hearings, it's just that many of them are preferring to wait until the ENGLISH test case has been heard so I'd take what the clerk says with a pinch of salt although if anyone is thinking of putting in a claim DO IT NOW before the ruling is made as it could very well be that limitations are put in place as part of the ruling which could seriously impact the amount you might get back (but that's only my 2pence-worth!).

 

My problem is that I have already had my day in court and despite having argued that the test case is ENGLISH and that other courts have denied sisting other cases and that (at the time) there was no immediate outcome on the horizon, the sheriff still allowed the sist to be put in place. I thought it was wrong at the time and still think it is wrong now. Basically, I'm looking to see if anyone can throw alternative legal basis on my challeging the court to hear the case now.

Cheers

Marko

[texel]

See the thread about lloydsTSB to get the results of my court dealings with BOS trying to sist my case against them . It is so long I cannot retype it

[buzby]

What a spurious reason. Legal affairs are a devolved issue so what the English Government does is their concern. As I recall, the Govan Law Centre provides info on how to avoit a claim to Sist, and has been suvvessful on several occasions in Scottish courts

[miss scotland]

well done texel really pleased for you, which court were u in

[texel]

Perth Sheriff Court; and the lawyer listed a great number of sists in Scotland!!! I had a great judge the best I have ever had in all my court dealings. Best of luck in your case:)

[texel]

Well finally had my day in court. BOS said they were going to defend since they lost their sist:D So off I went. Of course BOS had no one there to defend them so the Judge asked me if I wanted to give them a couple more weeks to defend or did I want to win by default:rolleyes: You of course know what I said;) Yes I'll take the cash. The the judge asked me if I wanted expenses of course I said yes. Now this brings up a new situation. The bank had me going to court to fight the sist. So with two trips to the court and all the time it took to work out all the charges ( this was my son's case) Anyway would you beleive the total expenses came to £535.00 now I don't know if I will get it all or not but we will wait and see!!!

[buzby]

Who arrived at the £535 figure, you or the court registrar? If the latter, then that will form the basis of your enforcement, but if you've simply totted this up yourself, the bank will appeal it as unreasonable for a small claims action.

[texel]

I made the charges up myself based on a case I had against BT their lawyer was charging me a total of over £700 so I worked out my figures based on theirs but a lower figure. Mind you I don't know if I will get it but I'll give it BLOODY GTOOD TRY.

[marko2002]

Guys, once again email alerts seem not to be working for me so apologies for the absence on this thread and well done on your case texel. Unfortunately, we're very much down to a matter of each sheriff rules how they want and where you were fortunate enough to get a sheriff that allowed your case to go ahead, I wasn't and loads more were in the same position. The thing that's really sticking in my throat at the minute is the fact that they sisted my case in the first place based on an English test case but moreso that there seems to be a distinct lack of guidance regarding how long a sist can be in place for.

 

My immediate thought is that this would, again, depend on both the sheriff and the case although given that the test case will most certainly be appealed by the loosing side we're looking at a final decision maybe into next year. This was the argument I made at the time of my sist but it made no difference, although surely there is some point of law that says a case cannot be sisted for over a year?

Marko

[texel]

I guess it is down to the judge which I don't think it is right why some cases are sisted and others are not. I did hit the hardship bit and that the funds were to go to the inland revenue:( That might have made a difference. I'm afraid Iwas too big headed about my charges:o as the sheriff officer would not let me get more than the standard fee even though I said I had had to pay someone to look after my lambing while I was in court!!! Anyway best of luck in your situation.

[gemspan]

Hi there

 

Well, I was in court yesterday for 2 cases of unfair bank charges. Both cases has incidental applications by the bank to sist the action and I thought as it was a preliminery hearing this was all that would be discussed.

 

I contacted the bank prior to going to court to advise them that business accounts were not included in the OFT test case. They got in touch with me and offered to settle but advised that the first 10 charges were time barred. I declined the offer to settle. The phone call was made late Monday afternoon and we were in court 10.30am on Tuesday morning. THey advised me they would ask for a continuance and would be defending the action.

 

We (my mum, dad and I!) arrived at the court for the allocated time. The bank appointed an advocate to represent them - together with an assistant to take notes!!! . When the case was called I started to proceed with my argument why my business bank charges claim should not be sisted and the Sheriff stopped me in mid-sentence and said that she did not have the time to get into long protracted debates at the moment and we would have to wait until the end. The advocate approached me and told me that he would be asking for the charges relating to 2002 to be struck out due to time-barring. I assumed this would be discussed at a later hearing and allow me time to read up and present an argument against the time-bar issue.

 

When I went back into court I was absolutely appalled at the treatment this Sheriff handed out to an old lady who had a legal bill she couldnt afford to pay. She asked to pay it back at £50 a month because the solicitors were supposed to advise her at regular intervals of their fees so that she could pay them. The Sheriff told her that despite not being able to afford any more than £50 per month, it would take 5 years for the company to get their money back and that was too long for a business to wait. She granted a decree and said to the old lady that "you will have to get a loan or something to pay it!". She didnt question the fact that the solicitors hadnt kept her informed of their charges; she just let them hae their decree. Are Sheriff's supposed to advise people to take out loans when they can't afford to pay the debt they are in court for? I dont think so!!! At that moment I knew I was going to have a tough time!!

 

When I was called the advocate said that he was not going to be asking for a sist but said that they wanted the first tranch of charges struck out because they were time-barred. This was the first I knew of any such defence and believe I should have had time to consider this and get my argument together. I questioned the word "claim" and tried to relate it to the fact that I had evidence to suggest that I had claimed the money back from the bank within the prescribed period. Because I hadnt brought a court case she ruled that the first amount of charges should not be allowed. The advocate argued that the charges were fair. She continued the case until 6th May and I advised that, as the bank consider the charges to be fair I wanted them to disclose how much it costs them so that I could see if it costs them £35 to administer a returned DD. Sheriff told me that would take too long and I advised her that that was my right. If the other side believe them to be fair they must put forward their reasons for believing that. She said we could discuss that at the next hearing.

 

I had taken the time to do a lot of research into my parents case and actually advised them that the money claimed was in fact relative to 3 months of weekly pension payments to my parents and they had suffered hardship because of this. I advised that the FSA, OFT etc. encourage hardship cases to be heard!!! Gave the whole speil about English case etc., etc., etc., but she was having none of it. She sisted the case. The advocate said that 90% of cases were being sisted. When I disagreed with that and asked him for the statistics, the Sheriff advised that she had no reason to disbelieve him. Does this mean that she has reason to disbelieve me? Bearing in mind I have been the one that has been open and honest about the business bank charges etc., and they sneaked in a ruling for time-bar without consultation, I think she had more reason to disbelieve him than me!!!!

 

I ended up asking why all the Sheriff's werent singing from the same hymn sheet and commented that it was very unfair and obviously depended on the luck of the draw as to the Sheriff you got on the day. She had made her mind up before even hearing the case. She only listened to the advocate and didnt even take on board anything that I was saying.

 

I am now in the position where I am going to ask for a recall of the sist; complain about her behaviour and, make sure that the Bank disclose exactly how much it costs to administer a returned DD etc., This will mean that they will have to have their advocate present at all the hearings. Even if they try to settle with me, I am not settling with them. I am going to make sure they rack up ridiculous advocate fees. By the end of the day the BOS will wish they had settled my £600 claim and the Sheriff will wish she had listened to my argument on the day.

 

I wish you the best of luck. I say go for it. In my case, on the one hand she was ruling under Scots Law and then making a ruling which was relevant to an English Case.

 

Somebody told me today I was very brave to stand up to her. Why? At the end of the day the Sheriff is being paid to do a job and has guidelines on how to do it properly. She is clearly not doing a very good job and she has to be brought to task.

 

Small Claims Courts are set up so that the layman can represent themselves. In every case that day she ruled in favour of the company who had a solicitor representing them. She is clearly biased and should not be doing the job.

 

Kind regards

Gemspan

 

PS: Sorry for the rant!!!

[marko2002]

gemspan, I would also like to contratulate you also on your strength in court - it's often the case (as in mine) that despite being prepared the defence can sometimes swing you off course with their "ma lords" "ma ladys" and "ma ole man's a dustman" routine!. I for one would be personally interested to hear anything you can suggest for challenging a court to hear a case after being sisted although despite trawling the internet for the past month or so I have been unable to get any clarification on how sist's work, how long they can be held up for, etc.

I wish you luck and please do keep us informed

marko

[gemspan]

Hi Marko

 

I think it would be wise to wait until the OFT case is founded upon and the first appeal is made. That way things have changed and you can then go back to the drawing board by repeating your argument but, more importantly, the fact that it is your right in Scottish Law for your case to be heard.

 

Have you had a look at Govan Law Centre's advice on how to avoid a sist. Some of the information on there could be pretty relevant. Its a sticky at the top of the forum here.

 

I would also stick to numbered points and make them concise so that you can give a copy to the Sheriff so that they have it when you are going through it.

 

I think that the first findings on the OFT case are imminent. After that then I would put your application to recall the sist in straight away.

 

Hope this helps

Gemspan

[marko2002]

Gemspan, I used some of the arguments from the Govan Law Centre when the sheriff was sisting my case but it made no difference - I think most of them are frightened of actually having a case heard and having to deal with it so just prefer to sist, makes their job easier to have the decisions made for them from the OFT test case I reckon!. I am going to wait for the outcome to the test case, but I have a sneeky feeling that the powers that be may very well step in at some point and add pressure from some angle as for the banks to have to pay out at this scale now will no doubt affect the government's purse - wouldn't be surprised if the OFT are somehow "convinced" of a compromise