Mel5 v Clydesdale

[Bigmac versus]

Mel 5 pm me i have some info for you in regards to this.

[Bigmac versus]

I had to say that I wasn't as I had not received a copy of the defence.

 

In relation to that i said also i wasnt as i never had the defence, i was told i was the one raising the action not the CB.

[Bigmac versus]

Exactly the same defence as yours.

[caro]

I had to say that I wasn't as I had not received a copy of the defence.

 

In relation to that i said also i wasnt as i never had the defence, i was told i was the one raising the action not the CB.

 

That is scandalous! In small claims in England the judge is supposed to make sure the claimant understands all the arguments. Is Scotland different.

[Bigmac versus]

HELL i assume as the case has been found in favour of the CB and costs to be awarded i cant appeal, need to check up on that although would it do any good, maybe cost me more.

[caro]

Worth looking at. Was proper court procedure followed?

[Harry Turnbull]

I returned a cheque from CB (for less than the claim amount) on 22nd February and it is now 10.30am on Tuesday 6th March. The proof is set for 9.45am tomorrow 7th March. The post has just been delivered with nothing more from CB, so it looks like I will be in court tomorrow for the first ever proof hearing to be contested by the bank. Re my post of 30th January, this will be the one where the Sheriff wondered if the court would be big enough to accommodate all the people who would want to hear the bank's evidence.

[Piggy bank]

Worth looking at. Was proper court procedure followed?

 

caro

 

My experience was the same as george's: not being handed the Bank's defence papers even though a copy was given to the Sheriff, and my request for time to study the papers, or a continuance, ignored by the sheriff, who failed in his duty to ensure a lay person was given a chance to understand the proceedings.

 

As this is one of the responsibilities of the sheriff in the small claims/ summary cause tracks in scottish courts, I am now investigating the possibility of filing a complaint about the Sheriff's demeanor, as he failed to allow me access to the information presented by the bank, give me the opportunity to study it, or properly attempt to explain the relevance of the caselaw presented by the bank.

 

This behaviour is unbecoming of a sheriff - in Mel5's case, she has at least been given 2 opportunities to study the issues at hand and consult a solicitor.

[Piggy bank]

Note for anybody else unhappy with how cases have been handled by sheriffs during hearings and looking into addressing this, complaints about the conduct of individual sheriffs should be addressed to Head of Judicial Appointments and Finance Division, Scottish Executive Justice Department, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

[caro]

Is there a procedure for appeal Piggy?

[Piggy bank]

Yes I belive there is a form of appeal after a claim has been ruled incompetent. A ' Form of note of appeal to the sheriff principal' which has to be filed within 14 days. Use form 21 for small claims procedures: Small Claims Forms and 31 for summary cause claims: Summary Cause Forms).

 

Such an appeal has to be filed on a 'point of law'. In other words, it would have to address the case law and jurisprudence raised by the defender/Bank and used in the sheriff's ruling on competence, and can not address any other non-legal factors.

 

My term for an appeal ran out yesterday - seeing that I only received the bank's case law at the end of last week, I did not have time to prepare an appeal based on Scots law jurisprudence (if there is one based on a point of law, it will require a very crafty solictor to crack this particular defence of 'incompetence' as ruled by the sheriff).

 

However, as I am unhappy with a) how the sheriff's clerks office has dealt with my hearing, notably its negligence to retain documentation pertaining to my hearing and its unwillingness in assisting me to obtain these, and b) how the sheriff conducted the hearing by not allowing me time and access to examine the presented documentation and case law, I am preparing to file formal complaints about these issues with the Scottish court service.

 

This is separate from the actual small claim/summary cause claim, and is unlikely to affect its outcome.

 

However, if enough people will express their dissatisfaction with how some of these cases are now starting to be railroaded through the system as a matter of new policy to declog the court system, regardless of the individuals' rights involved, it will hopefully influence the way these issues are dealt with within the court system.

[mel5]

Sorry to be the bearer of further bad news but I was to have a meeting with a lawyer this afternoon.

 

I eventually got a copy of the defence 2 days after my hearing (I had to phone the court to arrange this - the staff were extremely helpful and had a photocopy ready for me to pick up). I then passed this on to the lawyer early last Friday and he got back to be yesterday afternoon as arranged. He told me that it would not be necessary for me to have an appointment because in his opinion the case is going to be thrown out at the hearing next Tuesday 13th.

 

He didn't tell me anything new. In other words I should have gone for the full amount at the outset as I had known exactly the amount of the total claim.

 

He advised me to turn up for the hearing next week to see what the result would be. He also said that it was possible that I might have charges made against me.

 

I was under the impression that no charges were exacted for a small claim. Can anyone confirm?

 

I think I am going to be very uncomfortable (in fact feel like a right lemon) in court next week. What on earth am I going to say in response?

 

All suggestions (within the law of course) gratefully received.

 

Mel5

[Bigmac versus]

Hi Mel you know whats coming and as your solicitor has said he believes it will be thrown out on this basis, as far as claims go you can have costs awarded against you, as the only other two cases i knew of have both had costs awarded to the CB, dont let this worry you, you have the costs calculated at another date when you need to attend and will be informed before hand as to what they are claiming for, GULP.

[Bigmac versus]

I would have a long good think of what your reply could be, you know you are more than likely going to have the case thrown out as incompetent due to the defence but at least you have some time to get a few chosen words out that may make you feel a bit better on the day.

 

If i could have had time before returning i tell you i would have a few choice words to say.

[Robertxc]

The legal limit for costs in small claims is £75. I've never heard of a sheriff actually awarding costs either way in a small claims action. Every time I've heard it being asked for, it's been dismissed out of hand. Obviously, I can't say for certain that that will happen here, but I will be very surprised if it does.

[mel5]

Hi all

 

Been to court today and as expected case was thrown out and expenses awarded to Clydesdale. (Don't know how much yet)

 

Financial Ombudsman here we come!

 

Mel

[Bigmac versus]

Hi mel5 sorry to hear that we are both at the same stage yet again, my complaint was sent yesterday to the FOS, keep your chin up, their time will come.