ajs444 v Cap. one ** WON - They Cave In Just Before The Hearing **

[ajs444]

Thread updates are in Scotland section, under Court Action though their Scottish lawyers are adamant that the case will be heard under English law as the agreement is made up of those components, WTF?????

[ajs444]

Saw this from a sticky above, interesting that it came from Burness.

 

 

Scottish law articles in association with Burness

 

Prescription and limitation in contract

The terms prescription and limitation are often used synonymously but do in fact refer to two distinct principles, explains senior projects solicitor Adrian Huett. Prescription is a rule of substantive law whereby certain rights and obligations are created (positive prescription) or extinguished (negative prescription) after a specified period of time. Limitation is a rule of procedure – and so must therefore be raised by the defendant in proceedings – whereby certain rights and obligations (while remaining in existence) become legally unenforceable after a specified period of time.

 

Scottish law

The current law is found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation.

 

For example, the date upon which a claim under a contract (eg a claim for loss and expense under a building contract) becomes enforceable will depend upon the terms of the contract and will always be a question of fact and circumstance. However, it will usually be when the dispute crystallises, ie when a claim has been made by one party and rejected by the other. Thereafter, the pursuer has five years from this date in which to make a claim otherwise their right – and the defender’s obligation – will be extinguished.

 

In contrast, a claim for breach of contract generally becomes enforceable when there is a concurrence of liability (ie the breach) and actual loss. Again, the pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (eg where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge.

 

Accordingly, if an owner discovers a defect in their building three years after completion then, provided that defect could not reasonably have been discovered earlier, they have until year eight to make a claim against the contractor for breach of the building contract. However, if the same defect is discovered 18 years after completion then the owner has only two years to make a claim before their right is extinguished.

 

It follows that correctly identifying the nature of the obligation is key to understanding when the prescriptive periods apply and, consequently, when rights and obligations will be extinguished under Scottish law.

 

English law

The current law is principally found in the limitation acticon 1980 (as amended). This sets out when contractual rights and obligations become unenforceable. There are two time periods since English law divides contracts into two categories: there is a six-year limitation period for simple contracts, and a 12-year limitation period for contracts executed as deeds.

Only one limitation period will apply to any contract and that will run from the date on which the cause of action accrued. In a claim under a contract, this will be when the dispute crystallises. The claimant will then have either 6 or 12 years in which to make a claim otherwise their remedy will be time-barred.

 

In a claim for breach of contract, this will be when the breach occurred and again the claimant will have either 6 or 12 years in which to make a claim. It should be noted that, unlike Scottish law, time will run from the date of the breach and not from the date of any resulting loss. Moreover, the start of the limitation period will not be deferred merely because the claimant was unaware of the breach. As a result, a claimant’s remedy may become time-barred before they realise they have suffered a loss or even before such loss has materialised. In order to address this injustice, the English Law Commission has published proposals which allow claims for breach of contract to be made within three years from the date of discoverability, subject to a ten-year long-stop. The proposals largely mirror the provisions of the Latent Defects Act 1986 which allows claims for negligence (other than actions involving personal injuries) to be brought outside the usual six-year limitation period but within three years from the date of discoverability, subject to a 15-year long-stop. The proposals are unlikely to be on the statute book for a number of years, however.

 

Conclusion

Whether prescription or limitation applies will depend upon whether the contract is governed by Scots law or English law. In either case, once the solicitor has established the relevant time period and has decided to proceed with the claim, he must then be sure to stop the clock by raising either court proceedings or arbitration proceedings.

 

Source: Burness May 2003

[ajs444]

Also found this contribution from GLC, will have to check Capone's T&C's

 

For example, in the case of McGowan v. Summit at Lloyds 2002 SC 638, 2002 SLT 1258, an insurance policy contained a clause which said: 'this Document shall be governed by the laws of England, whose courts shall have jurisdiction in any dispute arising hereunder'. An action was raised in Scotland and Lloyds defence was the case was incompetent as the Scottish courts had no jurisdiction in light of the clause. However, the Inner House of the Court of Session (Scotland's highest court) held (applying the English case of S&W Berisford plc v. New Hampshire Insurance Co Ltd [1990] 2 QB 631) that the clause did not create exclusive jurisdiction in England, and only created concurrent jurisdiction i.e. proceedings could be raised in either Scotland or England in terms of the clause and the 1982 Act.

 

In the English High Court case of S&W Berisford plc (cited above) a clause in an insurance policy stated that 'This insurance is subject to English jurisdiction'. Justice Hobhouse (as he then was) held that those words 'were inept' to create an exclusive jurisdiction clause.

 

 

 

I have checked my bank's terms & conditions are there appears to be an exclusive jurisdiction clause for Scotland/NI?

 

If this appears to be the case (and your bank is domiciled in England) you may wish to consider arguing that this clause is an unfair term of contract in terms of UTCC Regulations 1999. Paragraph 1(q) of Schedule 2 to the 1999 Regulations provides as follows:

 

SCHEDULE 2

 

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

1(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

[ajs444]

Checked T&C's as supplied by Crapone.

 

Section 23:- This agreement is governed by English Law.

 

That is all it states one line, therefore where to now?

[IdaInFife]

I think you have answered you own question, if the judge were to agree it was to be maintained under english law,you then have a counter arguement from the GLC

[ajs444]

I wish it was as clear as that, all this "Law Speak" is doing my head in, it's like reading Shakespeare.

[ajs444]

Have launched an Incidental Application against Burness, introducing the Prescription and Limitations (Scotland) regs. and stating my preferences under Civil Jurisdiction Act.

 

I have also submitted correspondence from Crapone, illustrating how they have tried to "bribe " me into dropping the case, this obviously shows they are/were willing to pay put on the claim but not the amount I requested.

 

So much for saying the claim has no foundation for repayment.

[ajs444]

Well, have had my Incidental Application returned and advised to lodge them under Inventory of Productions for examination on the day of the "Proof" hearing, they continually keep referring me to the notes about Small Claims on the Scottish Law site.

 

Having gone through the procedures quite a few times, especially "Going to Court" the procedured do not bear any relation to my case, "Proof" hearings get no mention, anybody with any ideas?

[maroondevo52]

Not sure if this helps..............

 

The Sheriff will decide if all reasonable steps have been taken before court to come to an agreement between Defender and Pursuer. If he is satisfied then an PROOF hearing date will be set. This is the hearing for the presentation of evidence, and will be set for about two months after the preliminary hearing.

[seriously fed up]

If you go here http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.scotcourts.gov.uk%2Fcourtusers%2Fcrimcourtattenders%2Fdocs%2Fattending%2520a%2520court.pdf&ei=KliYUMXZFKnE0QWylICgDg&usg=AFQjCNGpvNj99nJyg8tZadI1pT3P9QVYtQ there is a pdf that will download a document on Scottish Courts and how they work (including criminal courts). On page 5 it says this "Civil Procedure

Whatever type of civil action is raised, it is likely that hearings will take place before a date is fixed for a proof. These hearings will assist in clarifying the issues in dispute. A diet of proof is where a sheriff will hear evidence in the case and, in the case of an ordinary action, will issue a written judgment. Where actions are summary cause or small claims a sheriff may give his/her decision verbally from the Bench at the conclusion of the proof diet.

There is no legal requirement for an individual to use a solicitor to conduct the case, though in most ordinary actions the legal issues can become more complex."

 

I would think - certainly very much hope - that the claim for the sum of their illegal charges would be largely uncontested (and as for "English law applies ........."!) - where they may haggle seriously and the Sheriff may be most uncertain is on two matters I suspect

 

1. whether you are indeed "out of time" - bit more complex than just saying "I didnae know" - on the other hand, I am pretty sure that you have a large file of letters from crapone telling you that their charges were fair, reasonable and most certainly lawful. What you will have to show is when you became aware that this wasnt the case and that it would have been unreasonable to expect you to learn this beforehand. The fact you are a lip without legal representation is on your side since it can be argued that it would take a specialist to know a claim was even possible
   
2. the rate of interest that you would be able to charge. Accepting the charges were wrongly applied is one thing, but they will argue that this is all you are due - "ok we deprived you of £xxx, but that is all". However they have compounded (literally) the felony by illegally depriving you of your money and then charging interest on your "debt" - and even if you werent in debt you have used money to pay off the illegal charges that you could have used to earn interest elsewhere The issue that the court will focus on therefore, I think is likely to be what rate of interest should be applied. It might be argued that its judicial interest which I think is 8%. However, I would be arguing for the rate of interest they applied to your account since that is what it cost you.
   

[ajs444]

After sleeping on this I am going to pick their defence to pieces, each point one by one.

 

On the "English Law" matter I would have thought that the Court would have kicked this into touch just now, or is that too simplistic?

[seriously fed up]

the worst case analysis is that you turn up and they present a point you arent prepared to rebut. Better to be prepared unnecessarily imo (which is easy for me to say).

Remember too that as you brought this case, there is an expectation on you to make a case to the court (being civil its balance of probs, but nonetheless) - so you need to be prepared to argue why the court should find in your favour not just why it shouldnt find in their favour - though obviously there is a good deal of overlap between the two. But you do need a positive argument to find for you, as well as a negative argument to find against them.

[ajs444]

Having phoned the Court Service in Edinburgh looking for advice I was told that Cap One are fully entitled to state that the agreement is under English Law, as was signed for at the time of agreement.

I am told that this is written into many agreements and that any legal action would have to be taken through the English Law Courts, she was quite surprised that the Sheriff Court did not dismiss the case.

It is not an objection under UTCCR, and that the defendants lawyers may claim for full expenses under the preface that the case was raised incorrectly, and I should get immediate legal advice before going any further.

[IdaInFife]

they cannot take you to court in an english court cause your a domiciled in Scotland so if they did you would put in a jurisdiction defense and the judge would automatically dismiss the case.

[ajs444]

Ida,

 

I am taking them to Court and since they are in England I have to go to their area, especially as the agreement is covered under English Law, if it was the opposite way they would have to come up here and prosecute within Scottish Rules.

 

My lady in Scottish Courts advises me that many agreements have been drafted this way.

 

I am going to withdraw from the claim and go through English system.

[seriously fed up]

Hi AJS, sorry not to have replied to this before now, but frankly I really didnt know what to say. I am totally gobsmacked by this. To my mind Part II Section 4 of the Civil Jurisdiction and Judgements Act 1982 is quite clear - it says

 

Consumer Credit Act 1974 (c. 39)

4. In section 141 of the Consumer Credit Act 1974 the following subsections shall be substituted for subsection (3)--

" (3) In Scotland the sheriff court shall have jurisdiction to hear and determine any action referred to in subsection (1) and such an action shall not be brought in any other court.

(3A) Subject to subsection (3B) an action which is brought in the sheriff court by virtue of subsection (3) shall be brought only in one of the following courts, namely-

(a) the court for the place where the debtor or hirer is domiciled (within the meaning of section 41 or 42 of the Civil Jurisdiction and Judgments Act 1982) ;

(b) the court for the place where the debtor or hirer carries on business ; and

© where the purpose of the action is to assert, declare or determine proprietary or possessory rights, or rights of security, in or over moveable property, or to obtain authority to dispose of moveable property, the court for the place where the property is situated.

(3B) Subsection (3A) shall not apply- (a) where Rule 3 of Schedule 8 to the said Act of 1982

applies ; or (b) where the jurisdiction of another court has been prorogated by an agreement entered into after the dispute has arisen.".

 

I have highlighted that part since while Crapone are asserting the primacy of English law, the agreement in question was entered into before the dispute had arisen, not after.

 

However, it also seems to me that there are important policy issues here. The clear intention of legislation such as the the Civil Jurisdiction and Judgements Act was to give consumers (and others) a break, so that for instance a big bank couldnt drag you off to the other end of the country to defend yourself, or to take action against them. This seems to me to fly in the face of that. Suppose you lived in Manchester, you might put your action in against CrapOne at the bulk centre in Northampton, but the case would then be transferred to your local court in Manchester. But not if you live in Scotland it seems.

 

Basically it seems the situation is that if an agreement has been signed which indicates that disputes will be determined under the law of England then that's game set and match no matter what. However, consider this (its tenant and landlord but I think the argument can be transferred) about the source of obligations in the tenancy agreement

 

"The common law implied terms can be overridden by express terms of the tenancy agreement but the statutory implied terms cannot generally be ousted by the tenancy agreement, which makes the statutory implied terms extremely important to the tenancy agreement"

 

In essence what this is saying is that a tenant can give up common law rights by signing an agreement which contradicts these. BUT - and this is the important point - that doesnt hold good for statutory obligations which cannot be signed away in the tenancy agreement. By extension what CrapOne (and your lady in Edinburgh) are saying ist that you signed an agreement committing to the Law of England, but that said you cannot sign away your rights under statutory law ("statutory implied terms cannot generally be ousted by the tenancy agreement").

 

Given the invidious position that the interpretation you have been given places people from Scotland in, I think there is a serious public policy issue here. As I said, if you lived in Manchester the case would be moved to suit you. The intent of Civil Jurisdiction & Judgements is to do likewise for people in Scotland and if statutory law has primacy then their argument ought not to stand. Have you thought about taking this up with your MSP ajs? I am pretty sure that an SNP MSP would be more than pleased to hear about this and, having conducted their own investigation to raise the issue in Holyrood, since its hard to see why people should be disadvantaged just for living in Scotland.

[seriously fed up]

You might also want to have a look here http://www.consumeractiongroup.co.uk/forum/showthread.php?362094-Halifax-Credit-Card-Penalties - same thing as you are doing with a bank I would have a sizeable wager with you, also makes the "law of England" requirement - they ALL do.

[ajs444]

I gave Halifax Bank as an example, her reply was that they are now part of HBOS, head office Edinburgh, so no problem.

 

Assume it would be the same if you raised a case against Currys for faulty goods, although you would be raising case against the store you bought it from, therefore once again no problem.

 

She told me it would have to go through the court of the domicile of the defendant, if they were to sue me it would go through my local Sheriff Court and vice versa.

 

I sued HSBC some years ago for bank charges and that was done through MACOL (English Courts online service) although I had to supply an address in England for correspondence to be directed to, I used my Sister in Yorkshire for that facility.

 

I believe they have now changed that requirement and you can raise cases in Scotland now, certainly does not make it easy for the layman to get his justice.

 

I will phone my lady in Edinburgh on Monday, and quote some of the legislation you mention.

[Guest alan703]

I would not raise a case on MCOL from Scotland.

 

I have just done so, and now the case has gone to the allocation stage it has been transferred to the Carlisle County Court as that is the nearest court to me.

 

They cannot transfer it to the Scottish Sheriff courts as I raised the action in an English court system. Which means I have to travel 470 miles to attend.

Edited December 1, 2012 by alan703

[ajs444]

I know Alan, in my case against HSBC I was going to have to travel to Durham to attend any hearing, luckily HSBC settled before it came to that.

 

My lady in Edinburgh said that would have to be acceptable as I would claim expenses back in the case of a victory.

 

This site is good up to a point, but when serious legal advice is required there are no real lawyers etc. to advise you of the proper course of action, maybe it is just Scottish legislation.

[seriously fed up]

Might it be possible to get a second professional opinion from somewhere? Clearly CrapOne are making an issue of this, but I would bet many more could if this were right, which makes me wonder why they dont, which in turn takes me to a second professional opinion. What about your local CAB for instance?

Alan, what prompted you to raise a case in England?

[ajs444]

I have been screaming out for opinions for over a month now, I e-mailed Govan law, no reply and also Robertxc, once again no reply.

 

Apart from yourself and Ida there has been nil response to the legal argument, I was advised to go to CAB or a local legal drop in service based in Dunfermline

[seriously fed up]

I would try CAB and the local drop in service on Monday. You wont get Govan since they are under virtual siege most of the time and can only deal with cases in "their" area (GOVAN law centre being a clue on where that is). Problem is that this is quite a specialised area. I'll see if I can get you a specialised pov.

[Guest alan703]

http://www.legislation.gov.uk/ukpga/1974/39/section/141

 

Section 141 3A(a)

 

Says it all.

 

I got most of my info trawling the legislation website. Be sure to enable "show geographical extent" bit on the left - it shows where each law applies.

[IdaInFife]

Will post up some things

 

 

 

Firstly, such clauses do not deal with exclusive jurisdiction - they simply deal with the application of common law rules.* The courts have held that such clauses do not go far enough to confer exclusive jurisdiction.**

 

For example, in the case of McGowan v. Summit at Lloyds 2002 SC 638, 2002 SLT 1258, an insurance policy contained a clause which said: 'this Document shall be governed by the laws of England, whose courts shall have jurisdiction in any dispute arising hereunder'.* An action was raised in Scotland and Lloyds defence was the case was incompetent as the Scottish courts had no jurisdiction in light of the clause.* However, the Inner House of the Court of Session (Scotland's highest court) held (applying the English case of S&W Berisford plc v. New Hampshire Insurance Co Ltd [1990] 2 QB 631) that the clause did not create exclusive jurisdiction in England, and only created concurrent jurisdiction i.e. proceedings could be raised in either Scotland or England in terms of the clause and the 1982 Act.

 

In the English High Court case of S&W Berisford plc (cited above) a clause in an insurance policy stated that 'This insurance is subject to English jurisdiction'.* Justice Hobhouse (as he then was) held that those words 'were inept' to create an exclusive jurisdiction clause.