Thanks for confirming, and congarts of course;)

Hi Robert Was this your second claim with Dunfermline Sheriff Court? Am just wondering because, as you probably know, some of our second claims (resulting from splitting the claims up) have been thrown out due to Clydesdale's detailed legal argument against multiple claims resulting from the same cause of unlawful penalties? I'd appreciate if you could confirm this. Maybe this came before the court (did it make it to the prelim hearing?) before the Clydesdale came up with this defense?

Hi George Thanks for the update on the costs. As you know, my case was thrown out of court before yours, and I never heard back from them about the costs. I guess this must be the reason for me as well than, that they haven't decided to pursue the costs. I suppose doing this wouldve been an even bigger public relations disaster from their part...

I agree Caro. In light of the above, as a mod I would suggest removing or editing the posts by george, and mel5 in her thread, which refer to and cite the actual jurisprudence used by Clydesdale bank to block severed claims. Leaving this information available there will make it a lot easier for other parties to obtain this information and, more specifically, will enable other banks to adopt the same argument at preliminary hearing. This would lead to numerous more cases being thrown out... I'm sure that the substance of the legal issues involved can still be discussed openly, without having the actual jurisprudence out in the open, which at this point could do serious harm to other people's claims.

Stevo. My first claim was a small claim, which went to preliminary hearing and then was settled out of court. I then filed my second claim, which was a summary cause claim, which was kicked out of court by the sheriff on the basis of my previous claim. It would seem that currently only the Clydesdale have been using the relevant jurisprudence to make severed claims impossible....

I'm very annoyed about this myself, I have to say, but the fact whether you cashed a cheque or not, or whether you specified that you did not waive the right to take further action, or whether the case was settled out of court is immaterial under these circumstances: currently, second claims (against Clydesdale at least) are thrown out of court as it is deemed 'incompetent' based on the legal argument/jurisprudence presented by the Clydesdale. The crux of this argument is that scots law prevents you from filing a second claim based on the same cause of damages that you have suffered as a consequence of the bank's actions and of which you were already aware at the time of your first claim. Regardless of whether the first case was settled out of court, this would prevent you from being allowed to successfully file a second claim, based on the sheriff rulings so far. It would appear that certain sheriff clerk's ofices (certainly the one in edinburgh) are now being instructed to discourage people from splitting up claims.

Yes I belive there is a form of appeal after a claim has been ruled incompetent. A ' Form of note of appeal to the sheriff principal' which has to be filed within 14 days. Use form 21 for small claims procedures: Small Claims Forms and 31 for summary cause claims: Summary Cause Forms). Such an appeal has to be filed on a 'point of law'. In other words, it would have to address the case law and jurisprudence raised by the defender/Bank and used in the sheriff's ruling on competence, and can not address any other non-legal factors. My term for an appeal ran out yesterday - seeing that I only received the bank's case law at the end of last week, I did not have time to prepare an appeal based on Scots law jurisprudence (if there is one based on a point of law, it will require a very crafty solictor to crack this particular defence of 'incompetence' as ruled by the sheriff). However, as I am unhappy with a) how the sheriff's clerks office has dealt with my hearing, notably its negligence to retain documentation pertaining to my hearing and its unwillingness in assisting me to obtain these, and b) how the sheriff conducted the hearing by not allowing me time and access to examine the presented documentation and case law, I am preparing to file formal complaints about these issues with the Scottish court service. This is separate from the actual small claim/summary cause claim, and is unlikely to affect its outcome. However, if enough people will express their dissatisfaction with how some of these cases are now starting to be railroaded through the system as a matter of new policy to declog the court system, regardless of the individuals' rights involved, it will hopefully influence the way these issues are dealt with within the court system.

Note for anybody else unhappy with how cases have been handled by sheriffs during hearings and looking into addressing this, complaints about the conduct of individual sheriffs should be addressed to Head of Judicial Appointments and Finance Division, Scottish Executive Justice Department, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

caro My experience was the same as george's: not being handed the Bank's defence papers even though a copy was given to the Sheriff, and my request for time to study the papers, or a continuance, ignored by the sheriff, who failed in his duty to ensure a lay person was given a chance to understand the proceedings. As this is one of the responsibilities of the sheriff in the small claims/ summary cause tracks in scottish courts, I am now investigating the possibility of filing a complaint about the Sheriff's demeanor, as he failed to allow me access to the information presented by the bank, give me the opportunity to study it, or properly attempt to explain the relevance of the caselaw presented by the bank. This behaviour is unbecoming of a sheriff - in Mel5's case, she has at least been given 2 opportunities to study the issues at hand and consult a solicitor.

That's a first result george! I take it this was just for the money claimed in the case and not the full amount of the £3k+? They offered the same to me as well: claim plus interest but without the costs. I rejected the offer, after which I was offered the full amount including costs, following the prelim hearing. Up to you whether you want to leave it at that really.

Yep, it's a big black hole after all the correspondence. It's now just a long wait for your money to arrive Just make sure you don't forget when the return date and prelim hearing dates are!

If you haven't filed your claim with the courts yet, you can safely ignore the letter for now and just file the small claim with the sheriff. (personally I would consider a summary cause if your total amount is below the £1500). You can always write them a quick note after you've filed the papers to tell them that you reject their offer and that you've filed a case. I wouldn't cash the cheque - don't complicate things. Just be patient, and your full settlement will arrive...

George. My schedule of charges did include the interest on it, but it didn't actually specifically state the interest rate used... Very cunning;) I think there is nothing wrong with your approach regarding the contractual interest. The clydesdale for example has, as far as I can see, charged me interest rates between 10% (authorised overdraft rate) and 25ish% (for unauthoriased overdrafts), so if these are the rates quoted by the bank, you are fully within your rights. Like I said, I doubt that this is a point they want to argue in court anyway, because the only way they can actually argue this would be in a proof hearing, where they would also have to argue they main point of the (un)lawfulness of their charges. I hope your strategy pays off in terms of speeding up the process. Either way, you will get your money. I just doubt that, due to the processes that seem in place at the banks, they exercise this much judgment in individual cases. They pretty much seem to process them in the same standard manner. Fingers crossed though, and if you need a hand for court (I forgot where in scotland you were) feel free to give me a shout.

Well done hibbiejim. Maybe you can use some of your winnings to hold on to some of your players;)

I know the difference between statutory and contractual interest Caro. In my first claim I just claimed 8% without stating that this would not be the usual statutory interest, so that it would be less noticeable that I actually claimed this as well, regardless of what interest the sheriff would be awarding me Like I said, I will be claiming the contractual rate charged to me by the bank, which is in effect inbetween 10 and 25% - it's just kinda tricky to calculate precisely. Either way, if the bank has any issues with how these rates has been calculated in the claim, as far as I'm concerned they can state so during the hearing, and provide the breakdown of the actual percentages charged by themselves. Thx