FOS or court, which one to use?

[maryhillgull]

I was at Glasgow Sheriff's court today getting my extract for payment amended and the Sheriff's clerk told me thay are still accepting Small Claim and Summary Cause Summons and that they have had no official notification to stop accepting them. I'm not sure of the stay/continuance procedure in Scotland but it seems that you can still take the banks to court (in Glasgow at least).

 

Cheers

[Aqualibrium]

I knocked back £1458 as Im due £5000. I was just about to send my claim to FOS but seeing as they aren't investigating anymore whats the point? I suppose it will mean its on their register, Im considering raising an ordinary cause action, anyone know the pro's & cons of doing so?

 

As far as I know, you can only claim up to 1500 with the Summary Cause route, hence why more people in Scotland have been considering the FOS instead. There have been people splitting their claims into smaller amounts, but from what I gather, this isn't advised, as some courts aren't too happy to accept more than one claim on the same account.

[Aqualibrium]

I was at Glasgow Sheriff's court today getting my extract for payment amended and the Sheriff's clerk told me thay are still accepting Small Claim and Summary Cause Summons and that they have had no official notification to stop accepting them. I'm not sure of the stay/continuance procedure in Scotland but it seems that you can still take the banks to court (in Glasgow at least).

 

Cheers

 

It seems claims are still being accepted and the advice I have read on here is to continue with your claims, the banks have a right to put a 'stay' on any claims/complaints/investigations though, for the duration of the test case.

 

This thread from Bookworm addresses the situation realistically http://www.consumeractiongroup.co.uk/forum/general/108091-oft-banks-dont-panic.html

 

 

[Deso]

I am aware of the small claim limit of £750 and the summary cause of £1500 but I was led to believe that you could apply for an ordinary cause which handles anything above £1500 but involves solicitors and numerous court papers. Im trying to see if this would be economical to do or just wait the few years it takes for the test case to conclude (if it ever does).

[Aqualibrium]

I am aware of the small claim limit of £750 and the summary cause of £1500 but I was led to believe that you could apply for an ordinary cause which handles anything above £1500 but involves solicitors and numerous court papers. Im trying to see if this would be economical to do or just wait the few years it takes for the test case to conclude (if it ever does).

 

 

Hmm... I'm not aware of this procedure myself, perhaps a passing mod could help with that one.

I would imagine though that if it involves solicitors, it will be much more expensive than the other routes. I'm unsure if legal aid would cover the costs, if you are eligible, might be worth investigating though.

Good luck!

[Deso]

Thanks for the reply Aqualibrium.

[maryhillgull]

Deso

 

IMHO it would be very unlikely that you would get a solicitor to take on an ordinary cause for bank charges especialy in light of the recent OFT/FSA announcement. As for costs yes this would be expensive but if you won (which you should) then the other side would have to pay your costs. However most solicitors would probably want to have "something on account" first before they begin.

 

It might be worth just getting £1500 by using summary cause. Then waiting to see what happens with the hight court case. You could then go after the rest at a later date!

 

Whilst this High Court Case is good news it has certainly put a spanner in the works for those in the middle or about to begin legal/FOS action.

 

Cheers

[A_1]

Why not use the english system? all you need is your bank/credit card companys english headquarters address, fill out the N1 form online, print it off and post it to the court local to the defendant. The small claims limit in england is £5000 + statuatory interest.

[maryhillgull]

Yes you could use the English system and whilst there would appear to be no automatic "Stay" in place and it is still down to the individual Judges it seems almsot certain the the banks will ask for a stay and it is highly likely to be granted. You can always challange this stay but this cost more money £35 without a hearing £65 with (and of course that means you would have to go to England!), and there is no way of guessing the outcome.

 

I suppose one advatage of using the English system is that you will be able to claim back 6 years and that if you do so now you will not loose two years worth of charges waiting for the high court decision and you might get lucky and find a judge who does not allow the bank to request a stay, but using the English system does have a number of drawbacks (which have been discussed many times on this forum) which need to be carefully considered.

 

At the end of the day it's up to you, weigh up the pro's and con's and see what comes out best

 

Cheers

[RES_JUDICATA]

Why not use the english system? all you need is your bank/credit card companys english headquarters address, fill out the N1 form online, print it off and post it to the court local to the defendant. The small claims limit in england is £5000 + statuatory interest.

 

can i just make a point here. ordinary cause action DOES NOT require a solicitor. you can do this yourself, however you do need to put forward a well presented case as is available on both here and PC. I know 3-4 members from PC who have taken the ordinary cause route and won, however these were in the early day's when the banks never attended court, that being said i do not see any issues with people continuing to claim through this route.

 

the English route will give rise to the "stay" issue, however the OFT Vs BANKS does not affect Scottish court cases no stay applies up here, so i would say time the Scottish mods and admin from each site work together to find the true pro's and con's of ordinary cause, apart from the technical issues that the writ cannot be folded etc lol (but it is true!!!) i think there is a need to do this for the following reason

the prescription and limitation act does not stop the clock until there has been a judicial demand,so people need to file court action to formally demand their money back, meaning if people have to wait until the case in the high court is settled which could be anything from 6 months to 1-3 years (whoever wins either way there will be a appeal to the house of lords, this we can be pretty much certain of) which takes time. in our cases time is money !! so if you wait then it will take charges off the tail end of your claim!!!!

 

so if any of the Scottish Admin or mods wish to get together and work together to form a ordinary cause writ then test it. feel free to get in touch.

[Deso]

Thanks for all the advice. Ill need to read up on this ordinary cause. But I agree it would be nice if we had a scottish perspective on this seeing as the law is different.

[Bigmac versus]

Well the advice in regards to people losing charges due to the time taken over the test case is that you MUST have your complaint registered with the bank who will suspend it whilst waiting, the FOS have said that if the case goes in favour of the claimants then these cases will be settled as of when they were suspended.

 

The test case should be concluded late Jan early Feb 2008 but as RES JUDICATA says there will be appeals and more time taken over this.

 

Regarding Ordinary Cause:

One of the many problems with raising this action is that even if you win you may not get full costs.

[RES_JUDICATA]

yes, i agree with the not getting full cost's but if the litigant is not using a solicitor then cost's will be minimal.............surly, only the basic cost's of filing , different forms etc.

 

only get's expensive if you use a solicitor.

[rory32]

yes, i agree with the not getting full cost's but if the litigant is not using a solicitor then cost's will be minimal.............surly , only the basic cost's of filing , different forms etc.

 

Really? The costs incurred in an ordinary cause are usually due to:

 

the cost of serving various documents on your opponent

court fees to cover various administrative procedures (such as lodging documents with the court)

travelling expenses

if you have a job and you have to take time off work to go to court, you could lose some income

you might have to pay your opponent's costs and expenses if you lose the case

Bear in mind that:

 

• ordinary cause procedure is complicated
• there are no standard forms to help you, and
  
• you have to draft and prepare legal documents

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They also contain "craves" and "condescences" and the general legal advice is that you should not try to deal with ordinary causes without the advice of a solicitor.

 

only get's expensive if you use a solicitor.

Or lose.

[RES_JUDICATA]

yep pretty minimal i would say. compared to if you got a solicitor involved, IF you put in a pretty solid case as i beleive there has been wins in the fast track courts in England of £20-£30k on this site..........so i think you already know as long as you follow the advice here and know to agree you have breached the contract and argue the service point correctly you will win. if you follow the correct advice.

 

why so negative??

[rory32]

why so negative??

There is a great deal of difference between being negative and pushing people in a direction where they may end up with substantial costs at the end of the court action.

 

It is very easy to be free and easy with advice saying "go for it" when it is not you who possibly will suffer any down side of the actions. We have always advocated that people weigh up the risks of even summary cause before persuing that action, never mind ordinary cause.

 

For a lot of people court action is a very daunting process even at small claims level never mind summary or ordinary cause, even with all the advice that is given.

 

You do not seem to have grasped the complexities of an ordinary cause action. You are also assuming that they are straightforward and fairly easy to win for the novice.

[RES_JUDICATA]

You do not seem to have grasped the complexities of an ordinary cause action. You are also assuming that they are straightforward and fairly easy to win for the novice.

 

who are you to get all high and mighty ??

 

yes i know there is differences with the ordinary cause but nothing so significant that a layman cannot do it if they are FULLY aware of the relevant rules etc and risks. You make it sound like it is not achievable for people do go this route where in fact all you need to say is, it is there however CAG do not support this type of claim, due to ............

 

 

beleive me mate i am more than capable in doing a ordinary cause, no it is not always a straight forward win that all depends on who you face and whether you done your research and i would think even the least confident person would actually do MORE research to ensure they do win. Also it may be advisable to think before you try and belittle people because you hold ..........well some sort of position here.........as it can turn people against you and the site, which to be honest, of which has reputation for that now.

[Bigmac versus]

We all fight for the same cause except ORDINARY, lol.

If advice was given for OP's to take this action then it wouldnt be too long before an OP would lose, especially if doing so therselves and this would without doubt ruin the reputation that this site has built up.

I couldnt advise this route because it could lead to financial ruin for the OP and that is a risk I for one wouldnt be prepaired to take.

 

Remember the written word has many interpretations and your view of it is only one of many.

[RES_JUDICATA]

yes fair do's but bigmac, you know as well as i do that full cost's could be awarded in summary cause and that has surly got the same implications ?? or am i being naive again......................

all i said was from the start that it does not take a solicitor to do ordinary cause, i also suggested that staff from each site work together on it, however i see that being a no. cool no probs, but please do not make me out to be rather stupid in this area as well you know i handed you some valuable info, which reminds me i need to phone Dunfermline sheriff court tomorrow...............right see ya

 

take care all.

 

and keep up the good work.

 

regards

 

poltmcm

[Bigmac versus]

but please do not make me out to be rather stupid in this area as well you know i handed you some valuable info.

 

and keep up the good work.

 

regards

 

poltmcm

 

 

I do not think you are stupid that is just silly talk now and you know it, we all fight the same fight and I like everyone else love to debate the pros and cons of many a scenario and that is exactly what i have done, no offence has been meant and hopefully none taken.

[RES_JUDICATA]

nope none taken bigmac, i will however let you know how i get on with my case.

 

regards

 

poltmcm

[Bigmac versus]

Please do keep in touch, good luck to you.

 

Regards

George

[Robertxc]

Ordinay cause is never to be recommended for party litigants. I've had it made clear to me by at least two sheriffs not to even attempt it. The problem is that it is intended solely for solicitors, and as such the sheriff will expect your case to be prepared and argued to exactly the same standard as a qualified solicitor. This means that all of your pleadings have to be couched in all of the correct legal (and very archaic) terminology. As far as the Scottish legal system is concerned, if you're a layman and you want to go to court, stick to small claims, or at a push summary cause. The fact is that in ordinary cause you are very likely to have your case dismissed on a technicality. Yes, I know that there will be some people out there who can probably put in a huge amount of effort to make sure they get their ordinary cause claim right, but the reality for virtualy everyone is that the risks far outweigh any possible benefit.

 

Also it may be advisable to think before you try and belittle people because you hold ..........well some sort of position here.........as it can turn people against you and the site, which to be honest, of which has reputation for that now.

Please don't use this sort of language in your posts, it is unecassary.

 

I'm not aware that this site has any 'reputation' for turning people against us - considering the thousands of emails and posts we get from people thanking us for supporting them and empowering them while they recover their charges.

[scruff1001]

It seems the plan is to continue with court action.

 

What should I do-having filed my complaint with the FOS? Just have to wait on the outcome of the test case???Should I or can I use the court method now?

 

All this talk of the test case taking a good few years is pretty rubbish. But surely it will be settled in our favour?

[Bigmac versus]

The test case result is expected late Jan/Feb 08 however ther is likely to be appeals which will prolong any settlements due.

Court action can be started, the FOS do say they wont get involved if court action is impending.