BOS Decree Recall - I went to court today!

[Flavio]

Hi Everyone!

 

I went to court today because the Bank of Scotland recalled the Decree I won against them on 12th January 2007. I won the decree because the BoS didn't submit a defence.

 

The BoS was represented by a solicitor who explained that the person in charge of my claim had went on paternity leave and that's why no defence was submitted.

 

The Sherrif asked if I understood the reasons for the recall. I replied I did.

 

The Sherrif then asked if I had anything to say!? I replied that I had a letter from BoS dated as late as 21st December 2006 stating that they were going to submit a defence.

 

The Sherrif then simply gave the BoS a further 3 weeks to submit a full defence and set the date for a full hearing on 16th March 2007.

 

It was my first time ever in court, and a pretty nerve-wracking experience

but it was all over in about 3 minutes!

 

So it's now just a case of waiting to see if BoS are going to go the whole way or offer me a deal before the next court date.

 

Should I appoint a solicitor of my own? (cos I felt pretty out of my depth today.)

 

Many thanks to all who have advised me so far!

[AWC]

Hi Flavio,

 

What a pain, not your fault that they mucked up, you would think that an organisation of their size could find someone to fill in whilst the other person is on leave.

 

It's up to you to decide if you feel you need a solicitor or not. Odds are Halifax will offer you a settlement rather than file a defence, but they won't admit liability. Wait and see if they do file a defence, then perhaps get some legal backing and throw in the costs with your claim?

 

If they do file a defence, then they have to tell us all how much it really does cost them to cover our charges.

[Flavio]

Thanks AWC!

 

Think the BoS are just being a pain in the a**e and they just want to make me sweat!

 

They had long enough to submit a defence as they received the summons in early November 2006.

 

And I don't think BoS have such a generous paternity leave scheme!

 

Think I'll take your advice and wait and see what happens. They need to submit a defence a week before the next court date....so that should give me time to go over it and decide if I need a solicitor.

 

I'll keep you posted!

[barbershop0]

Hi

 

I thought Paternity leave was two weeks. This is just cr*p from the BOS.

 

I sincerley hope that it was a man, that was taking time off.

 

Good luck, and see if they offer before filing a defence.

[sallysas]

Just keep thinking about the daily % that is accruing. Excuse is laughable though - paternity leave.................. If you owed them money they would certainly have got another member of staff to deal with the paperwork. Keep your chin up, almost there.

[gemspan]

This sort of thing really annoys me!!!!! Why should they be able to get more time to defend. Its up to them to have the defence in on time and if they dont then it should be decree by default. Also, there should have to have been evidence to show that the person dealing with the case was on paternity leave!!!! Would this be the same for us if we forgot to file defences because we had something else on at the time?

 

Annie

[Flavio]

Hiya!

 

As you know, on 12th January I was awarded a decree against the BOS because they failed to submit a defence. The BOS subsequently recalled the decree on 16th February and the judge gave them 3 weeks to submit a defence and set a date for a full hearing on 16th March. I received a copy of the BOS's defence yesterday morning.

 

I'm now really worried about going to court. There was no direction from the judge to produce any documents prior to the hearing on 16th March.

 

Here's a transcipt of the BOS's defence:

 

Admitted that the pursuer, (me), has held a bank account with the defenders since on or before 1 January 2000, the account number being xxxxxxxxx. Admitted that the defenders deducted from the account various amounts of money in charges during the period 31 March 2000 to 31 August 2006. Admitted that the pursuer contends that these charges were legally unenforceable and the pursuer is demanding the repayment of the money. Admitted that the defender has refused full payment of money. Admitted that the defender has refused full payment of these monies under explanation that they are not due and payable to the defender. Admitted that the pursuer claims from the defenders a sum equivalent to the amount debited to the pursuer's account in the period from 31 March 2000 to 31 August 2006 under explanation that the sums debited were not deducted unlawfully. Admitted that the sums are detailed in the Schedule attached to the Statement of Claim. Admitted that the defenders have a branch in xxxxxxx and are therefore under the jurisdication of this court. Quoad ultra denied. Explained and averred that the charges imposed by the defenders were imposed in accordance with the terms and conditions governing the account held by the pursuer. Inter alia, the terms and conditions state that charges can be applied '' (a) each calendar month when a debit balance on the current account exceeds any authorised overdraft limit, (b) for refusing to honour payment instructions issued by the (account holder) where there are insufficient funds available for withdrawal from the current account (after taking into considerstion any authorised overdraft limit) and © for honouring payment instructions issued by the (account holder) where the overdraft has already been exceeded, or is exceeded as a result of honouring the payment instruction.'' On each occasion that charges were imposed by the defenders, the above conditions were fulfilled. The charges imposed by the defenders are fair and reasonable and are recoverable by them under the contract between the parties as hereinbefore condescended upon. Esto the charges are not fair and reasonable, and esto the charges are not recoverable by them as part of the contract between the parties, which is denied, the charges imposed by the defenders between the period from 31 March 2000 to 31 October 2001 as detailed in the Schedule attached to the Statement of Claim, were imposed more than 5 years prior to the commencement of this action. The pursuer's entitlement to recover these charges has prescribed. Reference is made to the terms of Section 6 of the Prescription ans Limitation (Scotland) Act 1973.

 

It's all Latin to me.....should I get a Lawyer?

 

Any advice would be really appreciated!

 

Many Thanks!

[gemspan]

Hey Flavio

 

All pretty basic jibber-jabber as far as I can see. This is what they normally punt out. What they are saying is that they can take the charges because you have signed the terms and conditions authorising them to do so. HOWEVER, you are claiming that the charges exceed the amount that it actually costs them to process any penalty you may incur. By that I mean that experts have said that it costs max £4.50 to return a cheque as everything is automated. Now, the Bank will have to prove that it costs them what they are charging poor unsuspecting peeps like you and I - and they wont do it because they know that this is actually a very lucrative profit stream for them - hence the obscene profits they are making!!!!

 

So, what have they asked you to do now? Basically, you need to get your original letter for payment which relates to the acts that you are claiming the money under and refute the claim by saying that you are prepared to pay the penalty charge but believe that what the banks are charging is excessive and then ask them to disclose the actual amount that it costs them to process the charge!!! Then you will get your money and you can go to the pub and have a nice wee glass of wine to celebrate.

 

Really, they should just pay up. All this too-ing and fro-ing is a pure waste of their shareholders money.

 

Dont worry, you dont need a lawyer.

 

Hope this helps

Annie

[sallysas]

Don't panic for a start. This may be a self-help group, but there are people to help. Go to thread 'got a court date'. Send a PM (private message) to one of the moderators and forget about paying some solicitor. You have got this far and there is not much longer to go. All the best - from someone who is waiting for a defence to plop through her letterbox. Sally

 

See what did I tell you. Cavalry to the rescue

[Flavio]

Thanks Alot Troops!

 

Your advice is sound and really helping to keep me calm!

 

I'm now very busy getting all my paperwork & evidence sorted out for Friday 16th.

 

I'll let you know how I get on!

 

Taking Deep Breaths (in........and.......out!)

 

Flavio

[Flavio]

Hi Troops! Me Again...

 

Interesting Development!!

 

Have just phoned the court to clarify what kind of Hearing it is and it's a Preliminary Hearing. But the most interesting thing is that the court has no record of receiving a defence from the Bank of Scotland.

 

The BOS's solicitors sent me a copy of their defence dated 2nd March. The letter also states that they were lodging the defence with the court the same day.

 

Of course, this could be down to human error at sheriff clerk's office....but I'm starting to wonder!?

 

Feeling a bit more positive....but still taking deep breaths!

 

Flavio

[WILKINSS208]

hi

im at court with halifax 22 march. they filed defence straight away after MCOL, but judge still allocated to small claims court.

i sent my court bundle in last week and halifax have now asked the judge to strike out the claim. im claiming 1990-2006. however. my bundle included alot so im hoping judige will help me on this one

[Flavio]

Hi Wilkinss208!

 

Sounds like your a bit further down the line than me!

 

Good on you for having the guts to claim for all those years! It must've taken a hell of alot of time & effort to get your info together.

 

Is your court date on 22 March for a Final Hearing?

 

Hope you get a nice judge and he/she doesn't strike out your claim.

 

Good Luck!

[WILKINSS208]

it is the 1st hearing, but halifax only submitted for case to be struck out on friday gone, so awaiting judges decision. hoepfully will know something this week.

[WILKINSS208]

well judge hasnt listened to them, court hearing still on thurs 22 march!

[sallysas]

All the best. I'm sure you will be fine. Sally

[Flavio]

Hi Troops!

 

Thought I'd let you know how I got on at court on 16th March.

 

I was kinda hoping that the court hadn't received a copy of BOS's defence. But unfortunately they had!

 

I also felt I had to accept that some of the charges between 31 March 2000 and 31 October 2001 had prescribed. This effectively halved my claim as under Scottish Law you can only claim for the last 5 years.

 

The judge advised me that I didn't have to accept this and that I could still claim for the full amount if I wanted. But this would've meant that my claim could not go through Small Claims, that it would take longer and that it could cost me more money.

 

So after a wee pow-wow with the BOS's representative (who was representing the BOS's solicitors and not the bank directly) I agreed to accept that the charges had prescribed.

 

When the judge called the case for the second time I confirmed my agreement and he set a date for a 'Proof Hearing' on 25th May. This when I'll have to produce all my evidence and the BOS will have to do likewise....and prove that their charges are fair and reasonable.

 

The fact that charges have been applied to my account is not in any doubt as the BOS have admitted this in their defence. The case is therefore going to be purely about whether these charges are fair and reasonable.

 

I'm now planning to wait about 4 weeks to see what happens! If I haven't heard anything, I'm going to send the court and the BOS copies of everything I plan to rely on in court (as a courtesy and hopefully to persuade them to offer me a deal).

 

But, I'm not going to accept anything less that a full refund of the remaining charges which amount to over £500.

 

Both judges in both hearings were very helpful and sympathetic. Both judges also took time to give me advice and make sure I understood what was going on.

 

My advice is to relax, be yourself and know your argument!

 

So try not to worry Wilkins...you'll be fine!!

 

Good Luck!

 

[rudi]

So after a wee pow-wow with the BOS's representative (who was representing the BOS's solicitors and not the bank directly) I agreed to accept that the charges had prescribed.

 

What exactly does "prescribed" mean?

[Flavio]

It means I lost the right to claim due to the expiry of a time limitation in the law (in my case 5 years)....!!

[SPROUTY]

In my opinion HBOS legal have "had your trousers" down on this one.here s a quote from a letter some body showed me to explain the reasoning for this:

 

The defendants solicicitor would state that the charges levied over six years ago are likely to be time statute barred. We suggest that until April 2006 we do not believe, that a “ reasonable person” would have any reason, not to have trusted, that his bank was genuinely passing on a pre estimate of the costs incurred by the bank in administering these charges. However with the publication of “Calculating fair Charges in Credit Card Contracts” (issued by The Office of Fair Trading), it was suggested that banks were in fact probably unfairly profiteering from these charges (i.e. they are penalties). Therefore the time statute clause will run from April 2006 (the point of discovery) until April 2012 and therefore we are unlikely to be “time barred” (judged prescribed) as you suggest. We will rely on Section 32 of the statute that and amongst other cases we are likely to use the following at court:

 

Sheldon -v- Outhwaite [1995] 2 WLR 570

Claimants can rely for the purposes of Section 32(1) (b) upon deliberate concealment of matters relevant to their cause of action which occurred after the accrual of the cause of action:

 

Lord Browne-Wilkinson said:-

 

“... if the Defendant ... deliberately takes a step to conceal the relevant facts (a step which is by ordinary standards morally unconscionable if not necessarily legally fraudulent) it does not seem to me absurd that a plaintiff who has been prevented by the dishonourable conduct of the Defendant from learning of the facts on the basis of which to found his action should be afforded the six year period from the date of discovery of such concealment to bring his action”.

 

Cave vs. Robinson April 2002

 

Lord Millet said

Quote:

25. In my opinion, section 32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. But it does not deprive a defendant of a limitation defence where he is charged with negligence if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose.

*

There's also an excellent bit of writting on this subject see

 

20 year claim limit in Scotland - ON TOPIC ONLY