RedDeath v LloydsTSB

[Guest bong]

ey?. you're both domiciled in Scotland are you not?

[RedDeath]

lol still up this late? Yes bong, I am domiciled in Scotland. I think I may have the solution to my problem...

 

3. The claimant contends that this confers advantageous terms to the Defendant, as per Paragraph 1(q) of Schedule 2 of the 1999 Unfair Terms in Consumer Contracts Regulation 1999 (hereinafter referred to as the UTCCR).

 

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.

 

 

I am interpreting "take disputes exclusively to arbitration". The options so far in scotland are through the FOS (they would never argue damages for me) or through a court of session for which I need to be repressented by a solicitor (again, judging be previous posts, no legal representative would take this case on)

 

4. The Claimant contends that such clause does not deal with exclusive jurisdiction and as per Section 4 Paragraph 8 (1) is allowed to bring court proceedings against the other party to a contract either in the courts of the part of the United Kingdom in which that party is domiciled, or in the courts of the part of the United Kingdom in which the consumer is domiciled.

 

 

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.

 

Part 3 seems to be a possible solution, though this may be contradicted by Terms to which these Regulations apply.

 

T&C do not clearly state exclusive jurisdiction.

 

I would be inclined to think that this should be ok as it stands. Should this then be argued by their defence I could go into the 2 cases that were presented, or do you think I am better detailing these as well in the poc?

 

Maybe I should enclose the part in red in my poc.

 

Anyway, getting late, thanks for the help so far. Much appreciated!

[TANZARELLI]

Could you not use an address in England, have you any family in England where you could state you are living and have the address at the Bank changed etc and all court/bank correspondence sent her and then forwarded on to you by family?

 

Just a thought and poss a non starter.

 

Tanz

[TANZARELLI]

Red if I remember rightly this guy had a similar predicement, I haven't re read to check but might be worth a read:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/11139-o0oliambeeo0o-ltsb-scotland-plc.html

[Glenn UK]

FWIW

 

I think your on a loser with the UTCCR because the term you refer to doesn't infer an imbalance on the parties rights. Both parties are bound by Scots law.

 

Rea Arbitration i think has a special meaning and if the term you refer to meant, law as opposed to arbitration it would have said so.

 

The case law seems the strongest bet, especially if you can find something comparable based on a Scottish court ruling that something should be heard in an English court it would be an immense help.

 

JMHO

 

Glenn

[RedDeath]

Red if I remember rightly this guy had a similar predicement, I haven't re read to check but might be worth a read:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/11139-o0oliambeeo0o-ltsb-scotland-plc.html

 

Thanks Tanz, but I doubt this would apply to me. The Scottish courts as they are at the moment have a small claims limit of £1500, over that and it goes to a court of session and a claim can be struck out there purely on the fact that I am acting in person. Just to complicate matters a little further.

 

Glenn...thanks

FWIW

 

I think your on a loser with the UTCCR because the term you refer to doesn't infer an imbalance on the parties rights. Both parties are bound by Scots law.

 

Could I argue that this means that under Scots Law I can only claim back 5 years of charges, as opposed to 6 in the English courts. As they have offices in both locations they chose the Law and hence put unfair terms on me.

 

Rea Arbitration i think has a special meaning and if the term you refer to meant, law as opposed to arbitration it would have said so.

 

The case law seems the strongest bet, especially if you can find something comparable based on a Scottish court ruling that something should be heard in an English court it would be an immense help.

 

http://www.murraystable.com/files/articles/central-law-training-seminar.pdf

page 54 Jurisdiction Clause 55]

Damn, pdf formats. can't copy and paste!!!

 

JMHO

 

Glenn

 

I am thinking that there are unfair terms in the contract as this means that I would need to employ a solictor for claims over £1500, while I can do this in an English Court.

 

Also, as per that case law. I could argue that the words "exclusive" jurisdiction are not included.

 

NOt sure what you are meaning by arbitration.

[Guest bong]

the trouble is, red, that if the t&cs are subject to Scottish law, the case can't really be tried in an English court, can it? thats what I would have thought anyway.

[RedDeath]

Thanks bong, that is what I don't seem to agree with.

 

I got the info from a Scottish Law centre, so I am giving it some validity.

Particularly the part that says that it does not give "exclusive" jurisdiction to Scottish Courts. Rather it should be co-jurisdiction and as such should allow me to chose my court. I think that per se is imposing unfair terms.

 

Also it seems to me that this hinders my consumer rights to take action as per the UTCCR.

 

I guess at this stage that this is the most info I can gather, I am just going to have to go through with this. Going through the Scottish courts is just not feasable for me, and I would have to get a solicitor as well.

 

Maybe if i detail the reasons that this is unfair for me then it would stand a better chance as opposed referencing individual law.

[Glenn UK]

Thanks Tanz, but I doubt this would apply to me. The Scottish courts as they are at the moment have a small claims limit of £1500, over that and it goes to a court of session and a claim can be struck out there purely on the fact that I am acting in person. Just to complicate matters a little further.

 

Glenn...thanks

 

 

I am thinking that there are unfair terms in the contract as this means that I would need to employ a solictor for claims over £1500, while I can do this in an English Court.

 

I disagree with your interpretation of what fair means. The term inmy view means something along the lines that the contract doesnt favour one side over the other for the same thing.

In this case if they want to take you to court for more than £1500 they would have to use a solicitor too. So I dont think you have a jope in hells chance based on the UTCCR and fairness because it says inthe scots court.

 

Also, as per that case law. I could argue that the words "exclusive" jurisdiction are not included.

 

I think that the case law you quote sounds the most favourable in concept, i havet read it through though to check it out.

NOt sure what you are meaning by arbitration.

 

WHat i mean is that the reference you qoute talks about arbritration, if it had mean to include claims in law it would have said so and it doesnt. i would have thought a term in law which intended to be inclusinve of exclusive of something as obvious as claims would have been inclued if thats what it meant.

 

So i dont think you can use the fact it states arbritration to imply it refers to claims.

 

I dont think the term i sunfiar saying that the contract is subjject to scottish law any more than my contract would be stating english law.

 

HOwever, whether there is precedent to allow you to bring claims in english courts when the contract states this i do not know not being 'interested' in claims for those with accounts in scotland.

 

HTH

 

Glenn

[RedDeath]

i do not know not being 'interested' in claims for those with accounts in scotland.

 

Glenn

 

Glenn, thanks for the input so far despite the "interest" factor, I really do appreciate your comments. To be fair I am not really interested in the Scottish legal system either, unfortunately I have to be.

 

There are a couple of things that I have picked up so far and these are...

 

1. Scottish system is capped at up to £750 and then up to £1500. Everything over that and it means the need for a lawyer. Great!

2. Some people are splitting their claims in smaller chunks up to the limit. Unfortunately I see this as an enormous waste of resources, isn't really viable to me and the courts are starting to see this as well, declining multiple claims. So...people now go court hopping. Fantastic!

3. The scottish limitation is 5 years as opposed to 6 years in England.

 

 

Now from what I see the unfair terms lie in the fact that for disputes of over £1500 they are forcing me to get a lawyer, whereas the English law would allow me to go solo on this one.

Also in Scotland the only way that I can do this over £1500 is to go through the FOS (financial ombudsman services) and they would not argue damages for me. Hence being bound to scottish law is hindering my right to legal action. Had the same terms applied to English law fair enough, but as they have specified that I seek Scots Law they are in effect hindering my right to take legal remedy.

 

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.

 

Also, should this not be enough then there is the wording of the T&C. The earlier cases were argued that as the jurisdiction is not labelled "exclusive" that this can only amount to co-jurisdiction and hence under the Jurisdiction act I can pursue the case in either courts.

 

My interpretation of this goes down the case of as I am resident in Scotland they can only bring me to court in Scotland, whereas for a law suit (are bank charges classed as a law suit? Silly question but really important for me) I can go for any court.

 

At the end of the day, I guess that I can only stick to my beliefs.

 

If jurisdiction is refused though, does that still leave me with all the costs???

[RedDeath]

[Michael Caine voice-over] Hold on, I've just had an idea.

 

Glenn, Bill, Bong and PM hope you don't mind a pm.

[photoman]

[Michael Caine voice-over] Hold on, I've just had an idea.

 

Glenn, Bill, Bong and PM hope you don't mind a pm.

 

please do. Some interesting things happening all round at moment.

[RedDeath]

Some interesting things happening all round at moment.

 

Things are starting to move fast now, and in our favour for a change.

 

Sometimes we all miss the simplest things and over-complicate stuff for ourselves...

[photoman]

Red,

a couple of posts you may find interesting.

http://www.consumeractiongroup.co.uk/forum/general/80802-tom-brennan-natwest-could.html

 

http://www.consumeractiongroup.co.uk/forum/general/1338-charges-account-previous-bank.html?highlight=conversion#post8696

 

http://www.consumeractiongroup.co.uk/forum/general/80803-contract-correct-basis-charges.html

[bill-k]

Just the doors, though, eh, Red ?

 

Picture of exploding car was here - unfortunately, NOT from the film, and was deemed inappropriate. My apologies.

Please - just the {edit} doors !!

 

Inappropriate picture removed.

[RedDeath]

What???? I like inappropriate pictures...oh well, guess I won't have something to cheer me up while these banks are getting me so so down, ehm, doubt the sympathy vote will work.

 

Judging by the timestamp I only just missed that picture by minutes, damn, must have been funny!

 

Bill, I'm liking the ostrich mate!!!

[innocent]

Just subscribing to a very informative thread....

 

Innocent

[RedDeath]

BBC NEWS | Business | Court adjourns bank charges case

Well, friday the 13th has come and gone and Tom Brennan's case has been post poned...the banks bought more time.

 

Seems to be raising all sorts of arguements...

http://www.consumeractiongroup.co.uk/forum/general/80802-tom-brennan-natwest-could.html

 

Bank Fodder's thread was quite interesting as well...

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/81799-issues-raised-llloyds-bank.htm

 

I thought that the guy was claiming for damages, turns out it is tort. Nice!

When claiming exemplary damages I take it that these should be based on the principle that no one should profit from this situation.

 

So how would you go about quantifying it?

I thought every month when they took the charges get allocate the same value in shares at that time...then when claiming state xxx shares = £££££

 

Yes, I really do have ££££ in front of me.

 

I take it that Claims + CI + Damages + Exemplary Damages = BAD IDEA

[progenic7]

Hi Red,

 

just dropping by on your thread, and please forgive me for jumping in half way through (and based on the fact i have only read page 10) but i noticed some comments on jurisdiction, of which i happen to know a little about. Firstly i dont know where you live but im making a big assumption that you live in England.

 

If a contract/agreement/Terms and conditions or anything at all binding written or verbal are written under scottish law, but the claimant lives in England, then almost always the contract/agreement thats being challenged can be heard in English courts (and it usually says this on the contract) If the contract is Scottish and the claimant lives in Scotland, then almost always the claimant will only have jurisdiction under Scottish law.

However if the company in question has premises outside Scotland, ie England then jurisdiction comes back into England.

 

your probably thinking yeah i know that and this was discussed on page 2, (and if so strike from the record :grin: )

 

anyway subscribing

[RedDeath]

Hi progenic,

I actually live in scotland and am bound by scots law. (unfortunately).

Which leads me to the next point...after muchos tequila I have decided to go down the FOS route...so letter to TSB going out tomorrow morning with CI & damages and after 14 days I will deem their usual lack of reply as their final offer and go through the FOS.

 

This is not the course of action I was wanting, however, judging by the whole jurisdiction process I feel a little safer going through the "proper" route. Guess I will just have to wait and see what the FOS say.

[Guest bong]

Hi red, have just come across debt_mountain's thread against Clydesdale bank. He lives in Scotland but is using the English courts. It is a Scottish registered company but I don't know what their terms and conditions say on the matter.

[progenic7]

sorry to post again so soon but

 

just read a few of the links to certain threads that seem to have taken up issue here.

 

Firstly as you know red i am also claiming damages....why ? becuase like tom brennan i am trying to use it as a tool of leverage against the banks, (i must also add that this action of my own has nothing to do with tom brennan and i decided this months ago)

 

Tort ! tort is basically a civil injustice, i do not mean to knock people on this forum higher up the command chain that i, but some people dont seem to have a full understanding of what tort is.

 

we all have the right to apply damages to our claims, whatever the basis of claim is, regardles of whether its criminal, contractual or tortious or a mixture of them all.

 

On the aspect of damages the judge will simply decide on whether he agrees with the fact the banks have done something worthy of damages, ie the bank being stripped of what they have taken from you and some more as a punishment for their wrong doing. I personally thought i might stand a better chance of getting them into the court room if i used damages on the claim aswell.

But dont think your doing anything wrong here, there seems to be alot of contrary arguments going around lately, and clearly alot of them are based on....well lets just say not fact anyways

[zootscoot]

we all have the right to apply damages to our claims, whatever the basis of claim is, regardles of whether its criminal, contractual or tortious or a mixture of them all.

You can not bring a criminal action in the civil courts. Damages in contract are only available to compensate the claimant exemplary and aggravated damages are only available in tort law.

 

The basic claims are personal restitutionary actions for money had and received. They are not based on contract law although the contract terms will form the basis of the cause of actions. These actions are often referrred to as quasi contract.

 

There are no damages available in restitution its simply restoring the sums taken. If you went for a proprietary restitution claim then an account of profits is available as a remedy in addition to compound interest.

 

Alternatively you could claim in one of the established areas of tort law and claim exemplary and aggravated damages.

[progenic7]

zoot,

 

thanks for that and for the record i fully understand that you cannot bring a criminal action via the civil court system

 

My point i was trying to get across was that, IMHO there is nothing wrong morally with applying a claim for damages to a bank fee case, as i seemed to have picked up from various places around the site. And the fact that a tort in simple terms anyway, is a civil injustice that may be awarded some form of compensation if it were bought before the court. And that a breach of contract is not a tort either,

 

what i was saying simply is this, i dont think we should feel bad about claiming damages.

 

How a claimant goes about that is another topic altogether.

[zootscoot]

Nothing wrong with claiming damages provided you know what your doing otherwise you could cause yourself a lot of damage