Forcing Court To Lift A Sist

[gemspan]

Hi Marko

 

If a judge doesnt want the hassle of ruling on a case then they shouldnt be doing the job. My thoughts are that there are judges that are biased towards the big boys. Well, that's exactly how it felt yesterday in court for me!!! If a judge doesnt listen to your arguments - which are legitimate - then they should be brought to task. The reason I was given was that the OFT test case, while not have a direct effect on Scots law, would be very persuasive!!!!

 

They certainly don't like people questioning their judgements but, if you feel that there is a point of law that has not been looked at properly then it is your right to ask to have the sist recalled.

 

I would only wait until the judge's verdict is in, not for the appeals process. Then I would hit them with a recall of the sist - citing all the cases again.

 

I would say that it was probably just the judge you got on the day. IMO if this case does not relate to Scots Law then no cases should be sisted as they are not giving you the opportunity to use the process.

 

Kind regards

Gemspan

[texel]

Gemspan you were fantastic in court you were unfortunate to have that kind of judge. I often wonder where those judges get their training when they act like that. It is seldom that one gets a judge with the stomach to act strongly against the bullies. Best of luck for the future. i am expectin to receive an (I have forgotten what you call it, age has its problems with memory) anyway am about to send the bailiffs to the BOSW on the case I just won and they have not paid up!!!

[buzby]

The last time I heard of a situation like yours (Sheriff being chummy with an advocate ) they were previously colleagues in the same practice years ago! Of course, no hint of impropriety, simply an inside track.

 

That said - the luck of the draw plays an important part in whether your case will succeed, which will either favour you or the other party before the first word is are spoken.

 

Complaining about the Sheriff's behaviour seldom works to your advantage unless you can prove consistent bias or errors in law. The fact she wasn't 'nice' or gives you decisions you like is a very common complaint.

 

Still rootin' for you tho' !

[gemspan]

Hi there

 

Thanks for your words of encouragement guys!!!! I agree that the case was decided before the first word was spoken!!!

 

TBH I'm not angry about the decision; I am angry about the way the decision was made!!!! She absolutely did not take heed of any of my arguments against the sist and, indeed, she ruled on Scots Law in the first case and ruled on the outcome of an English test case in the second. She was using the law to the defender's advantage!!! We are either ruled under Scots Law or English Law. Had she ruled on English Law in the first case my charges wouldnt be time-barred!!!! LOL

 

Anyway, that said, relating to her ruling on the time-bar issue, I feel she was acting in a biased manner to allow a ruling that the charges be struck out - without first giving me the opportunity to consider my position and make an argument against why they shouldnt have been struck out!!! Does that make sense?

 

I have since had an opportunity to examine the Prescription and Limitation (Scotland) Act 1973 and have come up with the following:

 

The Defenders got a ruling based on the fact that I hadnt made a claim. However, I believe I believe that Section 6, 4,(a)(ii) would be a relevant argument against striking out the charges. This section says "...error induced by words or conduct of the debtor or any person acting on his behalf the creditor was induced to refrain from making a relevant claim in relation to the obligation..." I had letters advising me that the business charges did not fall under the UTCCR regulations and that the claim was not valid.

 

Indeed, throughout the whole bank charges debate the banks have always said that their charges are legal (lawful!) and have in some cases applied Default Notices relating to them. This is most definitely, IMO, inducing the creditor to believe that there is no legal basis for a claim.

 

The judge glanced over the letters and threw them down. In fact, I didnt get them back and, as this is the whole basis of my argument against time-barring I will have to get them back.

 

What do others think?

 

Gemspan

[buzby]

Have you received anything back from the Clerks office? All the original paperwork is returned to you in a manilla envelope once the disposition has been made.

[gemspan]

Hi Buzby

 

No, nothing back as yet. The appearance was just Tuesday so it may be in the post!!!!

 

Thanks for that.

 

Gemspan

[marko2002]

In light of the recent "victory" (and I use the term loosley!) I am about to set off to my local sheriff court and request details on how I would go about recalling the sist on the grounds that the sheriff who dealt with my case stated she would be prepared to look at the case again when a decision was reached with the OFT test case. As far as I am concerned a decision has now been reached and in our favour, despite the appeal process no doubt being sought from the banks. If anyone has any words of encouragement or grounds for recalling the sist I'd be glad to hear them.

 

I will also be asking the clerk if it is possible to ammend my original claim as I have since incurred further charges and I am currently unemployed (lost my job to redundancy in Feb). Again, any points or facts really appreciated.

Kind Regards,

Marko

[buzby]

Always worth a try - certainly, but (and I could be wrong) I believe the sisst 'freezes' the action. If you want to amend to up the amount(s) claimed for, this may need a fresh action. Ask anyway, and let's know what the clerk says.

[marko2002]

OK, swung by the court and did ask about recalling a sist and she explained I'd have to raise an "incidental application". In my haste I completely forgot about asking about ammending a claim although reading through the details on other websites regarding these applications it would appear I can alter my claim as that is partly what this form would be for. Basically, it's just a word doc as follows:

 

 

Incidental Application

 

Case number

 

 

 

(Pursuer)

 

V

 

 

(Defender)

 

 

 

 

The Pursuer/Defender respectfully crave the Court to:

 

 

 

 

 

Signed:

Pursuers:

Dated:

 

So it's down to business me thinks - not having the paperwork to hand I think I've been hit with a further 3-4 charges since submitting my claim last year and with the interest on the original charges having accrued I should be looking at a fair whack!. I'll keep this post alive and let everyone see my application before submitting it for comments and critisisms!

Cheers

Marko

[marko2002]

I think I might be loosing it in my "not so" old age ... OK, I've just been reading up a little on the results of the test case and something sprang out at me that didn't before - the OFT test case is based PURELY on overdraft charges, right or wrong? I'm guessing I'm right cause I've just read a few news articles again - so if that's the case why would this include returned DD's etc, are they talking purely about unauthorised overdraft's or are they using this term so loosley that it incorporates all kinds of charges? I've only ever had charges for returned DD and if I've went overdrawn it's always been because the bank applied the charge to my account and took it into the red.

 

If, indeed it is the case that the test case if based purely on unauthorised overdraft's then I think I've got an even stronger argument to get the sist recalled!.

 

Any feedback appreciated.

Marko

[buzby]

You can play fast and loose with an IA... effectively rewriting the original claim, and this takes precedence over the action itself (which is kinda illogical when you think about it) but you can fashion it in a way to get round the sist....

 

I've not seen the wording of the OFT claim, but I believe the overdraft fees are being used as a 'hook' for any fee or penalty imposed by the banks...

[marko2002]

Drafted a rough outline of how I intend to approach the court on lifting this sist, although please remember this is only a draft and would seriously appreciate anyone's opinions, comments and criticisms on the below before I submit it. Thanks in advance

 

 

Incidental Application

 

 

Case number

 

 

 

 

(Pursuer)

 

V

 

 

(Defender)

 

 

 

 

 

 

 

 

The Pursuer respectfully crave the Court to:

 

Recall the sist for the above case number and grant the pursuer, Mr [fore,surname], to continue with the case. Additionally, he wishes to include further penalty charges levied by the defendant, Halifax plc on the accounts specified in the original action since the case was sisted, the details of which are as follows:

 

Date - Details - Amount

 

 

The decision on the OFT test case has now been made in part, to the effect that Unfair Terms of Consumer Contracts Regulations 1999 do apply to the terms of bank accounts and to quote Mr Justice Andrew Smith …

 

“a term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith”.

 

I further consider the banks charges a “significant imbalance” as they are grossly disproportionate to cost’s incurred by the banks and only serve to heighten their profits to the detriment of the consumer and at no stage in this or any other case have the banks shown good faith in disclosing the true cost’s of administration in such matters as returning direct debits or other unpaid or paid items.

 

I respectfully request this court to invite the defendant to justify their cost’s incurred whilst administering penalty charges on my account and respectfully request this court uses their own discretion whilst doing so.

 

It is understood and acknowledged that irrespective of the outcome of the OFT test case an appeal process will be launched which will take a considerable length of time to complete, therefore grossly extending the Pursuers right to the Scottish judicial process whilst being based on an English test case.

 

Both the OFT and banks have had the opportunity, and still do, to raise an appropriate test case in Scotland although they have chosen not to, making their request to keep the sist in place in Scotland further unjustifiable.

If this court decides it cannot lift the sist on this case, the Pursuer would request this court makes an order to Halifax plc to cease all future charges on his account(s) pending the final outcome of the OFT test case as it would seem a distinct imbalance to grant the defender the right to halt proceedings based on this test case yet deny the Pursuer grounds to halt the penalty charges levied by the defender, as ultimately both grounds would be based on the same test case and would not put the Pursuer at an advantage as any penalty charges which would normally be applied to the Pursuers account(s) could be recovered at a later date if that should so be the case.

 

Signed:

Pursuers:

Dated:

[gemspan]

Hi Marko

 

I think I would just keep it short and sweet. Too much information gives the other side something to latch on to. I found that out to my detriment!!!! I would tend to just ask for the sist to be removed due to the outcome of the OFT test case that bank charges have been found to be fair.

 

This would then open up the debate in court and you can hit them with a new list of charges. I might be wrong but I have learned the hard way just to keep all your cards close to your chest until you have to give them up.

 

Asking for the sist to be lifted is all you need. You then have the opp to put the argument forward in court.

 

Hope this helps

Gemspan

[marko2002]

gemspan, thanks for the reply - strangely enough I actually wondered about even posting my argument here as I've no doubt the banks lawyers are also scouring this and other similar sites to see what's happening and what angle's people are possibly going to come from next but decided to post it anyway. Thanks for the info and advice and will do as you suggest so it's just a matter now of getting myself finalised and submit the IA to the court. Will keep updating the thread as and when.

Cheers

Marko

[daviet1976]

What's the latest?

 

Are you any further forward with this?