HBOS intend to defend!

[marko2002]

Been away from this forum far too long now, good to be back!

I submitted a small claim for around £700+interest which is due in court on Tuesday (4th September 2007) and concerns a Halifax credit card and 2 bank accounts I've had with them also and as I heard nothing from them I guessed they would simply pay up eventually, although today I received a minute sheet with the words "intends to defend" which has stumped me. I phoned the court and asked if they had any details of the defense as I have received nothing from Halifax though they said they didn't, just the fact they intend to defend!. I might be wrong, but reading other threads it may simply that they intend on asking the case to be postponed pending the OFT test case although reading the Govan Law Society statement on this test case it would appear it's possible to claim this case as irrelevant given it's primarily based in England and that the conclusion is not imminent and is in fact in all probability not going to be heard for over a year or more. I'm slightly concerned about facing a court as I've never done it before and although I can give as good as I get it still is a daunting prospect. I'm curious to hear if anyone else has had such a response and if so what the outcome was, and please any advise greatly received!.

Cheers

[gemspan]

I think this is what the banks want you to feel. Get your defense set out straight and go for it. Dont feel daunted by it. I am just about to start my claim and will be taking it all the way. I am like you, have never faced this sort of situation before but if the law is set in Scotland then they cant argue with it.

 

Good luck

Gemspan

[marko2002]

gemspan, thanks for the reply and I was thinking much the same thing, but I've been going over my paperwork and I've realised I claimed 6 years instead of the 5 for Scotland, so I hope it's nothing to do with that but I read with interest a possibility of a 20 year claim which I don't think has been tried or even tested so no argument there me thinks!. Hopefully it's just a case of turning up, no bank, default, and bobs your uncle but as I have no news on their defense I'll have to try and cover myself for any eventuality they could defend themselves on .... I'll obviously post back on Tuesday with an update so here's hoping!

[marko2002]

OK, so I went to court today (Airdrie Sheriff Court) and I was the first to present my case to the Sheriff in regards to the banks request to sist the case (freeze) until the OFT test case has been sorted. At first, there was no representation for the bank other than a letter and the sist which they applied for although I was then approached by a court official (wiggy bloke) who explained he was now acting on HBOS bahalf and asked if I was using the infamous Cohen & Clydesdale routine to which I explained I was, this together with the fact that this is an English test case and most probably not appicable in Scotland. Reading extracts from the PDF from The Govan Law Centre on how it is improper to sist a case and that if appealed the OFT case could continue for many years the sheriff explained that they would nevertheless wish to see how this test case got on as they wanted to take things one step at a time and if the test case was to be appealed or otherwise postponed then I could return and ask for the sist to be removed at that time. Basically, their defense has been thought through and they seem to be better equipped than they ever were, so my advice to anyone trying to raise a claim is to hold off until the test case or your trip to court will be a wasted one!!!

[gemspan]

Hi Mark2002

 

I am so sorry that this has happened to you. I cannot for the life of me see how a judge can sist something that has had a precedent set in Scots Law. It seems to me that the law is an ass and in fact the country is run by the large institutions that fund our political parties!!!!!!

 

Im sorry you had the wasted time in preparation; travelling to and attending court but I would add up your expenses and add that to your bill.

 

There is no doubt about it. The OFT test case will be appealed, and appealed, and appealed. But then again, judging by what you've encountered today it may be that the banks win.

 

I suppose at the end of the day it is down to who is the most powerful ie the OFT or the Banks. If the banks are clearly flouting (sp?) the law then they shoud not get away with it.

 

I wish we had a solicitor/advocate that could stand up and knock holes in the defense that the bank's solicitor put forward.

 

Kind regards

Gemspan

[rory32]

I don't suppose you have a copy of the banks defence?

[gemspan]

H Again

 

In light of the recent developments at Edinburgh and Inverness I think I would be applying for a recall of the sist on the grounds as stated by the sheriff at Inverness.

 

Good luck

Gemspan

[lanster]

my cousins case was @ Edinburgh and the shefiff refusesd the sist this is what was recieved

The Bank's defence is that:

 

1. The contractual relationship between the Pursuer and the Defender was governed by the Bank's standard Terms and Conditions.

2. Those Terms and Conditions provided that charges would be applied to the Account if the Pursuer went over her authorised overdraft limit, and for returning items unpaid due to insufficient funds being in the account.

3. It is the Defender's position that the charges were service charges debited in accordance with the applicable Terms and Conditions in place with the

Pursuer.

4. Esto, there has been a breach of contract, which is denied, the charges are not unconscionable nor extravagant and are therefore liquidated damages, rather than a penalty.

5. It is denied the charges represent a contractual penalty or fine.

6. It is denied the charges represent an unfair penalty charge in terms of Unfair Terms in Consumer Contract Regulations 1999 (liThe Regulations") Para.B. Paragraph 1 (e) of schedule 2 of the Regulations provides that a term

requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation may be regarded as unfair. The Charges are not compensation, but rather a fee for the service provided by

the Defender in extending facilities to the Pursuer, all envisaged by the agreement between the, Defender and the Pursuer.

7. The Terms and Conditions are fair having regard to: 1) the cost to the Defender of maintaining administrative systems relating to unauthorised

overdrafts, unpaid cheques and direct debits, and abuse of cheque and debit cards for the purpose of keeping the level of overdrawing under review and controlled as far as possible; 2) the increased risk of loss to the Defender arising from such unauthorised transactions and the associated costs of enforcement and recovery systems; and 3) the need to operate standard procedures and to set standard charges in order to avoid the substantial costs of individual assessment in relation to each particular case.

8. The terms and conditions complied with all relevant requirements of the Banking Code as the Banking Code was in force from time to time.

will i still have to go up to court and defend or do you think they will pay up before hand?

 

 

[daftdebt]

Any advice for defending the court case? I've gone through the sist and now its going to court - help?!?!

[marko2002]

Hi all and sorry I didn't reply sooner, my mail notification wasn't working and only just today realised you guys had replied!. Anyways ....

 

* gemspan, thanks for the words of encouragement

* rory32, I only just (in the last couple of days) received a bog standard blah blah OFT blah blah letter from the bank merely explaining the situation although I have never received any official documentation regarding their defense other than the "minutes" which stated "intend to defend" - even at the court itself, no defense was entered, merely that they wish to "sist" the case

* lanster, like all contracts they can be interpeted either way although remember that our fight isn't with the banks terms as we all know we have to cover their administration cost's when a DD is returned and so forth, but our fight is against the amount they are charging for their adminstration costs and the fact that we are asking them to appear before a court to JUSTIFY these charges. The fact that they are so high (£39 in my case for the Halifax) led the OFT to believe they were penalty charges which are unlawful as their charge to us is disproportionate to their costs and so they profit from it. If you already have a date to attend I would go and argue the toss cause you might be lucky to get a sheriff who actually understands and appreciates that Scottish law is here for a reason, to serve Scotland and as no test case is running in Scotland I still don't understand how they can possibly "sist" cases based on an English case!

* daftdebt, if this is the first your case has been heard, like lanster, I would go anyway cause if you don't it will most probably be sisted in your absense, although again, as above, I think it really comes down to each individual sheriff which buggers me even further!

 

What really gets to me is that for hundreds of years we have heard how Scots law is unique both in it's approach and values from the law men, sheriffs, lawyers, etc etc although when such a high profile case comes to light Scots sheriffs run and hide behind an English "maybe" "possibly" "dunno" - surely there is something that we can do to force these scots courts to sit up and hear these cases?

[rory32]

surely there is something that we can do to force these scots courts to sit up and hear these cases?

That's exactly what we are trying to do. Hence this thread

http://www.consumeractiongroup.co.uk/forum/scotland/119483-urgent-you-benefits.html