Marwick v BOS: Help/advice appreciated

[marwicks]

Hi all...

I think this is a wonderful site but, it is still a little unclear for those of us in Scotland who require a claim of more than £750/£1500. (£3140.00)

I have done all the ground work but when I went to the clerk office he advised me that I would need to visit the Citizen advice bureau or a solicitor to start an initial writ. or start 5 claims.8-) I have e-mailed the CAB and tried to call them a dozen times. No joy. I have since then made an appointment with a solicitor who then advised me that he could not take the case because they represent the BOS. I have found another solicitor who will help me with the Initial Writ but charges £120 per hour. Are there any templates advice on this procedure:?:

Many Thanks for any help...

[weej]

absolutely everything is on here and you will not need a solicitor.

 

Firstly, I assume you have details of all your charges for the last 5 years.

 

1. Now Issue a preliminary approach for repayment, including a schedule of charges.

 

2. Then its a letter before action, giving them 14 days to settle, otherwise you will....

 

3. File a court claim. Yes, the limit under "summary cause" is £1500 in Scotland, but you can make 2-3 claims (actioned one after the other) to get all your money back. That said a great deal of people are getting all their money back in one go by agreeing to a full settlement before the court date.

 

Two important things to remember......The banks do not want to appear in court and will almost definitely settle beforehand (No one so far has had to go to court and give their case) and secondly, AND MOST IMPORTANTLY........

 

Read through the FAQ's, libraries (where all your letter templates etc are) and read othe peoples threads.....lots of them. There is a forum specifically for BoS/ RBoS and your thread would probably be better off in there. PM a Mod to arrange it.

 

 

Above all. Dont worry or panic. You will get all the advice/ help/ support you need in this forum. Its not about luck, its about effort.

 

Hope this helps.

 

j

[stevokenevo]

You could split your claim into 3 parts, 2x summary cause + 1 small claim,

this would be the easiest way, and saves you spending YOUR money to reclaim YOUR money, If you follow the procedure, i.e prelim letter 14 days, LBA 14 days then issue a summary cause action (£39 + £30 for a sheriff officer to enforce, all refundable), you should be fine, generally after the first case has been settled they tend to settle any subsequent claims faster anyway! beware and only issue one claim at a time through the court though, as they could lump them all together and then you would be liable for costs again, not healthy!!

Hope this helps, and good luck!!

[stevokenevo]

oops. you beat me to it ;-)

[marwicks]

Hi again.

 

Many Thanks for all your replies.

 

Firstly let me say that I have done all the ground work. applied for statments sent prelim and lba. The problem was that when I went to court the clerk advised me that rather than making several claims I could claim the full amount under one initial writ.

 

I guess what I am really looking for is someone who may have used this method already. I am going to have a good read through the forum tonight.

 

I have an appointment wed 10.00 am so I will let you all know what the solicitor says.

 

Thanks Again.

[edinburghbeerbucket]

I did mention this option, and even drafted an initial writ for an ordinary cause action (for sums over £1500) but nobody seemed to interested.

 

I'll post the initial writ here, but be warned that ordinary cause rules mean that you could be liable for ALL of the other party's costs.

[edinburghbeerbucket]

SHERIFFDOM of [iNSERT SHERIFFDOM]

 

 

INITIAL WRIT

 

In the cause

 

[YOUR NAME], residing at [YOUR ADDRESS]

Pursuer

 

Against

 

[bANK NAME] , having a place of business at [bANK ADDRESS]

Defender

 

The Pursuer craves the court:

 

1. To grant decree against the Defender for payment to the Pursuer of the sum of £X,XXX.XX with interest thereon at the rate of 8 per cent per annum from date of citation to follow hereon until payment.

 

2. To find the Defender liable in the expenses of the action.

 

CONDESCENDENCE

 

1. The Pursuer resides at [YOUR ADDRESS]. [HE/SHE] is domiciled there. The Defender has a place of business trading at [bANK'S H.Q. ADDRESS]. To the knowledge of the Pursuer no proceedings are pending before any other court involving the present cause of action and between the parties hereto. To the knowledge of the Pursuer no agreement exists prorogating jurisdiction over the subject matter of the present cause to another court.

 

2. The Pursuer, [YOUR NAME], has held a bank account with the Defender since on or before [DATE]. The account number in question is [ACCOUNT NUMBER]. The Defender deducted various amounts of money in penalty charges during the period [DATE] to [DATE]. These were in respect of: “Charges as Notified” (levied if a cheque or direct debit payment was returned unpaid because the specified overdraft limit had been exceeded).

 

3. The Pursuer contends that these charges were legally unenforceable and the Pursuer is demanding the repayment of these charges, with interest. The Defender has refused full payment of these monies, despite repeated requests from the Pursuer.

 

PLEA IN LAW

 

1. The Defender having levied charges against the Pursuer's account which are penalty charges designed to penalise the Pursuer for a breach of contract, and generate profit for the Defender, the Pursuer is entitled to have same refunded.

2. Furthermore, the Pursuer is entitled to charge interest on said penalty charges, at the contractual rate of interest agreed by the Pursuer and Defender at the contract's inception.

 

3. The Defender being due and resting owing to the Pursuer in the sum sued for decree therefore should be granted as craved.

 

IN RESPECT WHEREOF

 

 

 

 

 

 

 

[YOUR NAME AND ADDRESS]

Defender

[edinburghbeerbucket]

NB This has never been looked at by a lawyer, so I accept no responsibility if it's wrong in any way!!

 

The ordinary cause rules are very complicated and don't make easy reading. They're not designed for an individual to use, that's for sure.

[marwicks]

Hi Again,

Thank you for spending the time to post an initial writ.

I forgot to tell you that this is a business account.! Allegedly many of the arguments do not apply to business accounts.

Went to solicitor and she has advised me not to tackle this with an initial writ.

I was advised that the bank would defiantly lodge a defense and I could be liable for thousands in court fees etc (if I lost). So I think it is back to the drawing board.

Lodge 5 x small claims. I think this would be the safer option. Try one at £750 then tackle the rest if BOS settle. If not go to court and see what happens.

Thanks again.

[weej]

Going back to Stevo's post, You would probably be better going Summary cause instead of Small claims.

 

£1500 is the ceiling that way and dont forget.......if you do this properly as per the templates/ guidelines.....the chances of you actually going to court are remote (in the extreme)

 

j

[nikkiandmidgets]

You can also claim through Englands MCOL system. You need an address in England or Wales for postal correspondance. Also you must be prepared to go down to the court if it gets that far - it very rarely does though but it IS something you have to consider. The plus side of this is that it will be handled quicker (1 claim rather than 5).

[edinburghbeerbucket]

Went to solicitor and she has advised me not to tackle this with an initial writ.

 

I was advised that the bank would defiantly lodge a defense and I could be liable for thousands in court fees etc (if I lost). So I think it is back to the drawing board.

 

Think that was probably wise advice, particularly in the case of a business account. I'm fairly sure the bank would pull out all the stops and you'd end up in court. On the other hand, if someone is brave enough to take this on, you could end up setting a precedent for everyone else!!

 

I'm considering doing it myself not because of that, but so I can include my return flight from the states in my costs!