Equivalent of CPR 31.16 in Scotland

[Monty2007]

pt2537 has posted up a thread in relation to why we shouldn't use section 77/78 CCA 1974 if we want the actual signed agreement. It makes perfect sense since the CCA legislation allows them to send "a true copy" and we have all seen how the OC's and DCA's get around this with reconstructed copies, poor applications, non-confirming docs etc, etc.

 

In England, the Civil Procedure Rules part 31.16 allows disclosure of documents which the Claimants will have to rely on during trial.

under CPR 31.16(3)©&(D), they have to provide these during the pre-court disclosure stage in order to allow the defendant

to defend the case or facilitate the parties to come to a settlement,

 

 

the discussion thread is here: http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

NOW:

For those of us in Scotland it would be useful to have dialog of the equivalent Scottish procedure, it will ensure we all understand the process and are consistent.

 

I would welcome anyone with knowledge of Scottish law to help us in this respect, I am in the process of appointing legal counsel and will endeavor to get as much Scottish legal opinions as possible.

 

 

 

[rory32]

The procedure is quite simple. You make an application to the court. You do this by lodging (giving or sending) an incidental application to the court for the productions that you require. The sheriff clerk will then serve a copy on the other side.

 

If the application is opposed then there will be a hearing. If the application is not opposed then normally the court will grant your application without a hearing and the sheriff clerk will inform the parties of the decision.

 

An application for a specification of documents can also be made during any hearing. Applications made during a hearing will normally be decided there and then.

 

The sheriff clerk can give advice on the form and content of the application. The basic layout is:

 

Incidental Application

Case number

(Pursuer)

V

(Defender)

The Pursuer/Defender respectfully crave the Court to:

Signed:

Defender:

Dated:

[Monty2007]

So basically you can request any documentation that they mention in the Citation (i.e. the executed agreement & supporting docs) plus anything they seek to rely on in court?

 

I will file my Form 07 this week and have sent the request letter to Amex's Sols, do I copy the court with this letter when I submit my Form 07 (intention to defend)?

 

My understanding is that I then have 14 days to file a defence following the submission of Form 07? What if I don't get the documents they I have requested in this timeframe?

[rory32]

So basically you can request any documentation that they mention in the Citation (i.e. the executed agreement & supporting docs) plus anything they seek to rely on in court?

 

Yes.

 

I will file my Form 07 this week and have sent the request letter to Amex's Sols, do I copy the court with this letter when I submit my Form 07 (intention to defend)?

 

You don't need to. You just need to file the NID.

 

My understanding is that I then have 14 days to file a defence following the submission of Form 07?

Correct.

 

What if I don't get the documents they I have requested in this timeframe?

You may need to submit a holding defence and make an incidental application for the documents. The court should then issue a form of Commission and Diligence requiring the pursuer to disclose the documents within a set time period.

[Monty2007]

Thanks Rory

 

So far I have requested the docs that they mention in the Citation as in my thread. Should I leave submitting form O7 until the 20/21st day?

 

I am just unsure of the tactics and of course getting a lawyer who has the expertise to take this on. If I was in England it would be much easier, I can clearly see the process followed by many and the CPR 31.16 importance. Why are there so few Scots cases?

[rory32]

So far I have requested the docs that they mention in the Citation as in my thread. Should I leave submitting form O7 until the 20/21st day?

 

You want to make sure it gets in on time but at the same time you don't need to rush to get it in.

 

I am just unsure of the tactics and of course getting a lawyer who has the expertise to take this on.

You may end up in the same boat as pumpkin is in in that you don't need to enter a defence by the due date as the pursuers will agree to a sist, but I'm afraid you'll jUst have to wait and see if that happens.

 

If I was in England it would be much easier, I can clearly see the process followed by many and the CPR 31.16 importance.

In Scotland there are rules for each type of action - small claims, summary cause, ordinary cause. The Ordinary Cause Rules are quite complex and the sheriff doesn't take as big a part, in terms of giving you assistance in understanding the law, as they would in the other types of civil proceedings. That's why you either need to spend a lot of time reading or get a solicitor involved.

 

Why are there so few Scots cases?

Do you mean on CAG?

[Monty2007]

Do you mean on CAG?

 

Yes. I can't see any?

[FlyboyAgain]

The procedure is quite simple. You make an application to the court. You do this by lodging (giving or sending) an incidental application to the court for the productions that you require. The sheriff clerk will then serve a copy on the other side.

 

If the application is opposed then there will be a hearing. If the application is not opposed then normally the court will grant your application without a hearing and the sheriff clerk will inform the parties of the decision.

 

An application for a specification of documents can also be made during any hearing. Applications made during a hearing will normally be decided there and then.

 

The sheriff clerk can give advice on the form and content of the application. The basic layout is:

 

Incidental Application

Case number

(Pursuer)

V

(Defender)

 

The Pursuer/Defender respectfully crave the Court to:

 

 

 

 

 

Signed:

Defender:

Dated:

 

 

Let me get something clear on this: if my bank has supplied what I deem to be an unenforceable account, is there any reason I should apply to the court to get the bank to supply further documentation? The bank's relative silence on accounts that are in dispute is not fooling me, at the moment and I know they are prevaricating. So, is there anything else I should request from them (directly or via the courts)?

 

The next thing that I expect my lot will do is a) keep schtuum or b) attempt covery of debt via the courts. I am pretty confident they've sent me rubbish on 3 accounts yet quickly sent correctly set out agreements on 2; that telle me something. Just need to be sure, though.

[IdaInFife]

the incidental application can be loged when court action has been raised

 

ida x

[FlyboyAgain]

I'm crossing threads, aren't I?

 

Sorry, Ida. And Thanks again!

[FlyboyAgain]

Anyone getting spam links in their email inbox for this thread that is sending them to an urban clothing page? The user's name is rstu216.

[ChrisGr]

Monty I had your BTO thread stickied as I have an ongoing battle with Amex very similar to your own but now when I click the link thread is specified as invalid. Just wondered how you were getting on? Was hoping to get some tips.

 

Thanks!

[ajs444]

The said alternative is only used when Court Papers have been issued by the other side? Correct me if I am wrong.

I have a standing dispute regarding an invalid CCA and want to get it done and dusted, but it is at stalemate just now, as it has been for last 8 months.

Need some legislation to flush them out.

[Monty2007]

The said alternative is only used when Court Papers have been issued by the other side? Correct me if I am wrong.

I have a standing dispute regarding an invalid CCA and want to get it done and dusted, but it is at stalemate just now, as it has been for last 8 months.

Need some legislation to flush them out.

 

Hi ajs

 

If it's a Small Claim or Summary Cause then you can issue an Incidental Application through the courts and send in 3 signed copies. For a Ordinary Cause you will need to serve a Motion, for a party litigant this has to be done through a Sheriff Officer (courts have a list and it costs about £50-£75) or through a solicitor.

 

You are correct, you cannot serve a IA or Motion until you have received a summons or writ since de facto there is no case against you.

 

I am now well up on this Scottish civil jargon, process and procedure.

[FlyboyAgain]

I've reached a stalemate, too. I am torn between dragging them to court or waiting for them to do it as all they send now are letters saying they are '..keen to resolve your concerns', which is bank-speak for 'write to us and tell us why you think the agreement is unenforceable so taht we can have ammo against you in court.'

 

Stalemate, right enough.

[malr1975]

Hi ajs

 

If it's a Small Claim or Summary Cause then you can issue an Incidental Application through the courts and send in 3 signed copies. For a Ordinary Cause you will need to serve a Motion, for a party litigant this has to be done through a Sheriff Officer (courts have a list and it costs about £50-£75) or through a solicitor.

 

You are correct, you cannot serve a IA or Motion until you have received a summons or writ since de facto there is no case against you.

 

I am now well up on this Scottish civil jargon, process and procedure.

 

 

Hi Monty,

 

You seem to be ahead of me and I was wondering how you got on? I am in a Deadlock with HSBC for an unsecured loan of 15k and have jus started to challenge RBS credit card. Both banks sent terms & conditions when I CCA requested them, but it was not a true copy of the CCA. I also note your point that not many people seem to be on this site and requesting info for Scottish Law - seems strange?

 

Anyway, I am thinking about sending a letter to HSBC for an offer of Full & Final Settlement without liability. It's a low ball offer but I'm unemployed just now so whether they accept it or not - they will have to accept that I'm not able to offer much.

Did you get anywhere with the courts and requesting the CCA document?

 

Kind regards,

 

MR

[FlyboyAgain]

Monty, or anyone Scottish: What's the form I use under Scots Law for taking the Bank to court for a strike-out?

Edited October 5, 2009 by FlyboyAgain

[IdaInFife]

you can only get a case 'struck out' if there is already and active case and reason for doing so ???

 

idax

[FlyboyAgain]

Hi, Ida. This is for my PPI/Tied Loan.

 

What I suppose I mean is which court form would I use to bring the case to court myself, bearing int mind that the initial loan was 13K. I have decided to let the PPI recovery wait, unless anyone here can tell me why and how I'd want to go after them both at the same time.

[Monty2007]

Hi Monty,

 

You seem to be ahead of me and I was wondering how you got on? I am in a Deadlock with HSBC for an unsecured loan of 15k and have jus started to challenge RBS credit card. Both banks sent terms & conditions when I CCA requested them, but it was not a true copy of the CCA. I also note your point that not many people seem to be on this site and requesting info for Scottish Law - seems strange?

 

Anyway, I am thinking about sending a letter to HSBC for an offer of Full & Final Settlement without liability. It's a low ball offer but I'm unemployed just now so whether they accept it or not - they will have to accept that I'm not able to offer much.

Did you get anywhere with the courts and requesting the CCA document?

 

Kind regards,

 

MR

 

Hi, Have they issued a summons against you? it would be an ordinary cause action given the amount. The process is more complex than small claims or summary cause and also unlimited costs so only proceed where you are sure of your position.

 

There have been many more cases in Scotland since I started and I am on no 3, I have also successfully helped 3 others. In terms of process it is more defender friendly than the English process IMO.

 

Requests for documents can be done through a motion, best done when the case calls before the court and is called a "motion at the bar". Essentially you state that you wish to present a verbal motion requesting that the Pursuer furnish the original copy of the agreement and have it lodged in the Record. They will need to do this at some point so requesting it early means that things can get serious quickly.

 

For Summary Cause or Small claims you issue an Incidental Application but the other party does not seem compelled to comply. In some ways this works in your favor since when they fail to produce when evidence is led then you point to your incidental application and it tends to have the result of getting the case thrown out.

 

The point to note (and as I learned) any request within a Motion or IA has to be based on law or Ordinary Cause process, before leading evidence it is common that they key documents are not produced. Seems odd but that is what I found.

[Monty2007]

Monty, or anyone Scottish: What's the form I use under Scots Law for taking the Bank to court for a strike-out?

 

You could try to do this within an Incidental Application but need to provide the legal justification for doing so. If they have simply not produced any evidence then it is unlikely that the Sheriff will stop the case and award decree in your favor.

 

It also depends on what type of action it is? For Summary Cause and Small Claims the Sheriff has a lot of discretion and can quickly decide that the Pursuer has no chance of success, in an Ordinary Cause the process is more defined and process derived such that the Sheriff has little to do until Proof, PBA or legal debate. In 99% cases they don't get that far!

[malr1975]

Hi, Have they issued a summons against you? it would be an ordinary cause action given the amount. The process is more complex than small claims or summary cause and also unlimited costs so only proceed where you are sure of your position.

 

There have been many more cases in Scotland since I started and I am on no 3, I have also successfully helped 3 others. In terms of process it is more defender friendly than the English process IMO.

 

Requests for documents can be done through a motion, best done when the case calls before the court and is called a "motion at the bar". Essentially you state that you wish to present a verbal motion requesting that the Pursuer furnish the original copy of the agreement and have it lodged in the Record. They will need to do this at some point so requesting it early means that things can get serious quickly.

 

For Summary Cause or Small claims you issue an Incidental Application but the other party does not seem compelled to comply. In some ways this works in your favor since when they fail to produce when evidence is led then you point to your incidental application and it tends to have the result of getting the case thrown out.

 

The point to note (and as I learned) any request within a Motion or IA has to be based on law or Ordinary Cause process, before leading evidence it is common that they key documents are not produced. Seems odd but that is what I found.

 

 

Hi Monty,

 

Thanks for responding. No they have not issued a summons against me to date...any idea of when they normally do this when the account is in dispute?

 

Do you mean that due to the ammount they will issue a summons and that I would be liable for their costs?

 

 

 

I say the account is in dispute, but they dispute that...hence the deadlock. Its been in dispute since about Feb 09. They wrote me a letter and stated they could not find the CCA. I'm sure they don't have it - and the reason I CCA requested them, was because I almost agreed to a Managed Loan. I negotiated what I thought was a good deal - they offered to reduce it on the telephone to about 7k. When the Managed loan document arrived - it was not for the ammount we agreed on the phone but for the original loan amount. I then found out about CCA issues.

 

I don't want to go to court if I can help it, but I'm kind of stuffed just now as not earning - so if they do issue a summons I will have to defend, which is rather scary, so I thought I better do a bit of research.

 

 

Ideally I would hope they will accept my offer to settle, but it’s very low so not sure they will go for it. I would have thought they would consider the financial risks/negative publicity of court action etc versus the guaranteed settlement offer.

 

Do you think it’s a good idea to make an offer anyway? I am worried that an offer to settle will have a negative impact at court.

 

Kind regards,

 

M

[Monty2007]

Hi Monty,

 

Thanks for responding. No they have not issued a summons against me to date...any idea of when they normally do this when the account is in dispute?

 

Do you mean that due to the ammount they will issue a summons and that I would be liable for their costs?

 

I say the account is in dispute, but they dispute that...hence the deadlock. Its been in dispute since about Feb 09. They wrote me a letter and stated they could not find the CCA. I'm sure they don't have it - and the reason I CCA requested them, was because I almost agreed to a Managed Loan. I negotiated what I thought was a good deal - they offered to reduce it on the telephone to about 7k. When the Managed loan document arrived - it was not for the ammount we agreed on the phone but for the original loan amount. I then found out about CCA issues.

 

I don't want to go to court if I can help it, but I'm kind of stuffed just now as not earning - so if they do issue a summons I will have to defend, which is rather scary, so I thought I better do a bit of research.

 

 

Ideally I would hope they will accept my offer to settle, but it’s very low so not sure they will go for it. I would have thought they would consider the financial risks/negative publicity of court action etc versus the guaranteed settlement offer.

 

Do you think it’s a good idea to make an offer anyway? I am worried that an offer to settle will have a negative impact at court.

 

Kind regards,

 

M

 

Hi, M

 

There is no set timeframe with respect to when they would initiate litigation, could be tomorrow or never.......it is their call with respect to enforcing the alleged debt. If they don't have an agreement then they will be unable to enforce it anyway and as of December will have to submit the Consumer Credit Agreement with any summons that they issue in Scotland.

 

If they do litigate it will be an Ordinary Cause action since it is over £5 K, in this type of action they will not have a cap on costs as with Summary Cause or Small Claims. Something to consider. You will only be liable for costs if you lose. Most actions never get to debate or proof, it depends on what you want to achieve?

 

Personally speaking, if you are sure that they don't have an agreement then I would hold out and let them litigate. They may well offer a settlement and you should consider getting them to remove the -ve markers and default that they will have placed with the CRA's.

[wrungout]

Hi, M

 

There is no set timeframe with respect to when they would initiate litigation, could be tomorrow or never.......it is their call with respect to enforcing the alleged debt. If they don't have an agreement then they will be unable to enforce it anyway and as of December will have to submit the Consumer Credit Agreement with any summons that they issue in Scotland.

 

If they do litigate it will be an Ordinary Cause action since it is over £5 K, in this type of action they will not have a cap on costs as with Summary Cause or Small Claims. Something to consider. You will only be liable for costs if you lose. Most actions never get to debate or proof, it depends on what you want to achieve?

 

Personally speaking, if you are sure that they don't have an agreement then I would hold out and let them litigate. They may well offer a settlement and you should consider getting them to remove the -ve markers and default that they will have placed with the CRA's.

 

Monty, do you mind me asking if you have any knowledge of potential costs in a case like this, is there any kind of average or is it a "length of string" job. Would be grateful for any info you might have in this regard. Thanks.

[Monty2007]

Monty, do you mind me asking if you have any knowledge of potential costs in a case like this, is there any kind of average or is it a "length of string" job. Would be grateful for any info you might have in this regard. Thanks.

 

Hi wrungout

 

It is difficult to quantify ordinary cause costs since it really depends how far the case goes through the litigation process. I should also say that very few actually go to legal debate and proof (leading of evidence).

 

I have successfully defended an Ordinary Cause and a Small Claims action and had to spend a lot of time (2 years) teaching myself since the only lawyer I found wanted £5 K up-front which I did not have. He also knew less than me about the CCA etc, I was really after his knowledge of the Scottish process since I could not find any cases on here. When I read back to some of my earlier comments on this thread it is funny how little I knew back at the start. There are a few good books on Scottish Civil Litigation process and the Scottish Court site is useful. I spent many lunchtimes in the Mitchell Library through in Glasgow!

 

The decision process I went through was to build a good defence based on the cases on here that used the same parts of the CCA, cases and precedent and learn the Scottish process that is very different from CPR in England and a little more in the defender's favour IMO. Thankfully through help from CAG, and especially BRW who really helped with the strategy. tactics and moral support, I just learnt as much as I could about the Scottish process and did not blink. I had no choice really since defeat would have meant BR for me. I am now suing some of my creditors - that's confidence for you!

 

You will find lots of help on here, post up as much as you can and explore all the aspects of your defence and get lots of imput. I can help with what I know of the Scottish process and also recommend what you should read to get up to speed. Read around the threads relating to your bank and you will soon get a view of their tactics and approach, they don't vary very much really. You will know quite quickly what your chances are.........

 

Best of luck!

 

Monty