Urgent Attention Please Read - Claims in Scotland

[caro]

My reaction is to suggest you withdraw the claim and claim the balance through the FOS, but I'm seeking advice on this so wait and see what others think.

 

See if there is anything on the Govan Law Centre website that might help too.

[kevmcfad]

thanks, will do.

[RedDeath]

Guys, sorry for jumping into this thread but I can not seem to find a clear answer so far.

 

I am claiming against LTSB 5.5k in charges and additional 6k for interest @ 29.8% and another grand for good measure to cover costs, damages and sleepless nights. Not charging for beer though! Anyway, about 12.5K claim and I live in Scotland.

 

I have now reached the point where my LBA has not been answered and I can start court proceedings, but now I need some major advice.

 

I thought I could claim in England as LTSB are registered there without having to go for an english address. This may involve a trip down south.

 

I take it that there is no way that I can claim through a scottish court, merchantile maybe?

 

Any advice greatly appreciated!

 

Cheers!

[Bigmac versus]

OA but beware this would involve costs.

KEVMCFAD: In regards to your reply from HBOS it does sound suspicious, although if you decide to drop the case and pursue the rest through the FOS before doing this PLEASE give them a call and see if they are prepaired to settle, if they are adamant they arent then it certainly sounds like they are to defend your case on the grounds of multiple claims.

[Bigmac versus]

Well where do i start, Robertxc phoned me last week asking if id like to speak to a reporter from the Glasgow Herald who were putting a spread in relation to CB and their having 2nd cases thrown out of court, i pondered over this as when its out its out but feel that with or without a case study they would go to print anyway and it would be best in the long run for people to be aware of this as the banks appear to be, i have given details of my case history and had some photos taken, (I hate photos) but if it raises awareness to the general claimants so as to avoid the pitfalls of this and create some bad PR for the not so friendly CB then i will sacrifice that gladly, the CB have as i see it pushed people into court action through not seriously attempting to correct their wrongdoings or to address the findings of the OFT and im sure many more people feel the same.

[caro]

Kevmcfad, it seems that your letter is fairly standard for HBOS, but I would tread cautiously. You have experience of claiming from them before, so see if you can settle before court and see how that goes. I'm told HBOS settle fairly easily, but just be aware of the pitfalls.

 

Reddeath, can you put a link to your thread. If you are claiming costs you will need to itemise them and include receipts, and I must warn you that as your claim will be in fast track or multi track, and there is no legal basis for claiming contractual interest, you need to be aware that, if your claim is not accepted you could end up subject to the banks costs, so make sure you fully understand the implications of the action you propose.

[kevmcfad]

HBOS, in my experience, always wait until the very last second before handing over any money. In my first claim I received a letter from them the day after the return date saying that I would receive a cheque for the full amount (+ interest and court fees) within 7 days. It arrived 7 days later! On my 2nd claim I received a letter from them on the return date again saying that my cheque would arrive in 7 days but it was attached to the letter.

 

I've contacted the Financial Ombudsman Service to ask for their advice. Failing that I'll wait until the return date and ask the opinion of the Sheriff Court.

[sarahmoon33]

Hi, can anyone advise me here? I split a claim to do two small claims, my first claim was settled before christmas and I have a second claim. I may have done this wrong but I started the whole procedure again with prelim letter and lba, the Bank have written back to say that will pay back no more Bank charges as they have already settled a claim on the account. I was just intending to serve another small claims but have now read through this thread. What do I do? Contact the FSO or serve again, it would be Haddington Sheriff Court.

[sarahmoon33]

Bump - anyone help??

[caro]

Looks like a similar problem to kevinmcfad who posted not long before you. You don't say which bank but I'm assuming HBOS. The only one to have used the defence mentioned is Clydesdale Bank, but we have yet to see if others follow suit.

[sarahmoon33]

THanks for your reply. I have printed off a complaint form for the FSO, I may phone them on Monday re this.

[kevmcfad]

I think I'll do the same as sarahmoon33

[Bigmac versus]

Yes i think at the moment with the uncertainty the FOS would be the best move.

 

Financial Ombudsman Service

[tbell]

Guys, sorry for jumping into this thread but I can not seem to find a clear answer so far.

 

I am claiming against LTSB 5.5k in charges and additional 6k for interest @ 29.8% and another grand for good measure to cover costs, damages and sleepless nights. Not charging for beer though! Anyway, about 12.5K claim and I live in Scotland.

 

I have now reached the point where my LBA has not been answered and I can start court proceedings, but now I need some major advice.

 

I thought I could claim in England as LTSB are registered there without having to go for an english address. This may involve a trip down south.

 

I take it that there is no way that I can claim through a scottish court, merchantile maybe?

 

Any advice greatly appreciated!

 

Cheers!

 

Hiya All

 

Still hanging around..following this thread.. had decided to go through FOS but havent recieved a Final Reply from Lloyds..so cant just yet..

 

Thought I might go through English courts.. decided to check over t&cs and found this....

 

"English law applies to this contract unless your account is with a branch in Scotland, in which case Scots law will apply. This contract is in English. If a dispute cannot be resolved by our internal complaints procedure or by the Financial Ombudsman Service, the English courts will have jurisdiction to hear a dispute unless your account is opened with a branch in Scotland, in which case Scottish courts will have jurisdiction"

 

Now What??

 

tbell:-?

[RedDeath]

Hiya All

 

Still hanging around..following this thread.. had decided to go through FOS but havent recieved a Final Reply from Lloyds..so cant just yet..

 

Thought I might go through English courts.. decided to check over t&cs and found this....

 

"English law applies to this contract unless your account is with a branch in Scotland, in which case Scots law will apply. This contract is in English. If a dispute cannot be resolved by our internal complaints procedure or by the Financial Ombudsman Service, the English courts will have jurisdiction to hear a dispute unless your account is opened with a branch in Scotland, in which case Scottish courts will have jurisdiction"

 

Now What??

 

tbell:-?

 

Tbell, thanks a lot for the reply though I am still none the wiser.

It was my understanding that as their HQ is in England I can go through the english courts, but I will go through the terms and conditions and find a definitive answer.

 

If that does involve a Scottish court then could anyone please advise what my next stage is?

 

The total claim is 12k @ 29.8%, over 3 accounts and am not wanting to split the claims (don't think I could do even if I wanted). So this is where I am lost.

 

Can I claim this amount through Scottish Courts (surely I must) and how would i go about that. I live in Perth and i take it this could possibly go to an Edinburgh court.

 

Help!

[caro]

As I understand it you would need a solicitor to do this in Scotland RedDeath, and frankly I doubt one would take this on claiming contractual interest. If you are in Perth I see no reason why it should end up in Edinburgh.

 

As far as I know people in Scotland have claimed in England using perhaps friends or relatives addresses for the claims. As I've already said though, if you have problems due to claiming contractual interest you are leaving yourself open to paying costs to the bank.

 

Seems to me that FOS may be the safest route, but I don't think you'd get that amount of interest.

[Bigmac versus]

Yes Caro is spot on, wise to follow her advice, unfortunately to go through the FOS you do need the banks final offer after you have went through their complaints procedure which they normally say will take up to 8 weeks.

Contractual Interest claims most likely will be defended against by the banks.

[RedDeath]

Seems like its a trip down to england then. I take it I would simply use a friends address to start the court proceedings. Is that it? Forgive my ignorance on the matter but I haven't fully researched this one yet. I take it all documentation would then be from the friend's address? I have heard of people setting up po boxes and then dealing that way. Any help is seriously appreciated.

 

As I've already said though, if you have problems due to claiming contractual interest you are leaving yourself open to paying costs to the bank.

 

I take it that it all comes down to my particulars of claim, and the better I can detail it the better it will work out for me.

 

My arguement remains the same, prove that your charges are not unlawful then we can discuss interest rates. But then again so is everyone's else.

[caro]

There is no doubt that the charges are unlawful, but there is doubt about contractual interest. Personally I wouldn't touch it with a barge pole but the choice is yours. You do need to be very thorough in your research before making an informed decision on this. I can't really advise more on that issue.

[nelliedean]

just a theory, but do you think ,if (as I did), 1 person makes a claim on a joint account, then the other person could then make a claim, this would surely negate any claim spitting as each person is claiming what they feel is owed, this might be useful for people who are claiming on joint accounts, I know that when I claimed I only put my own name on the paperwork.

Again, just a theory.!!!!!!!!!!!!!! any legal eagle advice would be welcome!

[Bigmac versus]

Hi nelliedean very interesting idea that, in certain circumstances that may work.

[caro]

just a theory, but do you think ,if (as I did), 1 person makes a claim on a joint account, then the other person could then make a claim, this would surely negate any claim spitting as each person is claiming what they feel is owed, this might be useful for people who are claiming on joint accounts, I know that when I claimed I only put my own name on the paperwork.

Again, just a theory.!!!!!!!!!!!!!! any legal eagle advice would be welcome!

 

I agree it might work, although I think Clydesdale might make an issue of it. Could be worth a try though.

[RedDeath]

Caro, still going for contractual interest, and confident of actions and arguement, and this is where I need the help and advice of this forum. The fight is on, and I surely believe in it.

 

I need to bypass Scottish Law though, and am not sure about putting a friends address down. Won't the bank be able to look at a statement and previous correspondance and see a Scottish address? I need an arguement to be able to sue in England.

 

I would like to go down the following sentence, any ideas for ammendments?

 

2. The Claimant is a customer of the Defendant. The Defendant’s standard terms and conditions for personal customers (hereinafter referred to as the “Terms & Conditions”) prorogate jurisdiction of disputes in these circumstances, where the Claimant’s address isn’t in Scotland, to the courts of England.

[Bigmac versus]

You dont need an argument to sue in England, you need an address in England to be able to use their legal system, be aware though due to claiming CI you must be prepaired to travel there for court appearances.

[RedDeath]

Hi Bigmac, thanks for the response.

Yes I am prepared to travel there for court appearances. The claim itself is for 12K so yes, for that kind of money I will travel.

I bank with Lloyds TSB and their terms of contract stipulate that as I opened the account in Scotland, that Scots Law applies. Hence the need to be able to argue against this in an English Law.

 

Could someone please run by the Scottish process as I am unsure. Due to the size of the claim what would the correct protocol be? I.e. can i physically claim without the aid of a solicitor in a scottish court?

 

My arguement so far is....

 

PART I - INTRODUCTION AND GENERAL DETAILS AND BASIS OF CLAIM

 

Jurisdiction

1. This section is pled without prejudice to all matters not related to jurisdiction in this court.

2. The Claimant is a customer of the Defendant. The Defendant’s standard terms and conditions for personal customers (hereinafter referred to as the “Terms & Conditions”) stipulates jurisdiction of disputes in these circumstances, where the Claimant opened the account in Scotland, to a Scottish Court. The claimant disputes this based on the following criteria:

(a) The Judgments Act 1982, as amended by the Civil Jurisdiction and Judgments Order 2001, Schedule 4 of the 1982 Act (as amended) regulates the court's jurisdiction over consumer contracts.

(b) Paragraph (8) Schedule 4 states that -

§ “A consumer may bring 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.”

© The defendant may argue that this precluded by paragraph 9 of such act which states:

§ The provisions of rules 7 and 8 may be departed from only by an agreement, and that the terms of conditions of the contract formed such agreement.

(d) However this clause is argued as an unfair term of contract in terms of The Unfair Terms in Consumer Contracts Regulations 1999 Paragraph 1(q) of Schedule 2 to the 1999 Regulations provides as follows:

§ 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.

(e) Due to the overall sum of the claim (£12000) The Scottish judiciary system would only allow the claimant to….. As such, jurisdiction is sought in the xxxxxxx Court

3. Separtim: the Defendant:

a. is a company; which

b. was incorporated or formed under the law of a part of the United Kingdom and has its registered office or some other official address in the United Kingdom;

c. has its central management and control exercised in the United Kingdom;

d. has its central management at 25 Greshan Street, Lonon, England

e. accordingly the Defendant is domiciled within Scotland as defined by the terms of s42 Civil jurisdiction and Judgments Act 1982 (as amended) (hereinafter referred to as the “CJJA”). As such this court has jurisdiction by virtue of Rule 1 of Schedule 4 to the CJJA,

 

I need to justify why I can not claim in Scotland for the terms to be unfair.

Any thoughts?