scottish procedure

[Bigmac versus]

Hi all for what its worth

 

The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract where all the obligations are on one side.

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

[Bigmac versus]

Vital Spark i lost a claim today at court which was my second small claims due to already having been settled on one, the judge awarded costs against me, please consider all options before doing so as i was under the same impression that it was ok as long as not at the same time.

[Bigmac versus]

Vital i dont feel it is where i am but the defence the solicitor presented, this defence would have left no judge in the country in doubt as to where it was leading, for info it was in kilmarnock courts.

My biggest gripe was that having being handed their defence whilst at the bench i was then asked to reply to the motion, unfortunately i didnt have time to absorb and reply so feel if i had time to look into this i would have either had a defence to that or i would have withdrawn befor appearing, the result now being i have had costs awarded against me and i wont know until April how much, jings, lol.

This site is all about learning and if it heps others from doing the same as me then i will be happy at that.

[Bigmac versus]

Night Vital, well im open to all suggestions on this issue, it may be the defence that the banks have been looking for.

[Bigmac versus]

Two different accounts two different claims, claim the interest.

[Bigmac versus]

"Not if you're going to claim in Scotland, the fact the accounts have different numbers is immaterial, if you are the same account holder, when the bank defends, it will ensure that your claim is limited to ONLY the amount claimed in respect of all future actions against them"

 

Hi busby i can assure you that two accounts are treated differently therefore allowing two seperate claims, i have this from a judge i spoke to in regards to exactly this.

 

"a snappier alternative to a 'full and final settlement'. Trying to keep it under the Small Claims limit is pointless"

 

Depending if the two accounts are both under £750 on their own then i would advise two small claims actions.

 

go for Summary Cause or Ordinary Action as appropriate, as they pay all the costs anyway.

 

This action carries a large risk if you were to lose and believe me you CAN lose on a technicality before you even get to present your case, the banks know they can claim costs against this action if they win and they will llok for anything that they can use to get the case thrown out. If you do win your case and i accept there is a good chance you may the costs involved to you having a solicitor present you in court will more than likely NOT be met in full which could leave you with a shortfall to pay.

[Bigmac versus]

Sorry, disagree totally.

Thats your right but im talking through experience here;)

What a Judge thinks is immaterial. Here we have Sheriffs,

When my case was up in Kilmarnock the SHERIFF said if it were different accounts i would have been ok for another claim, HOPE THIS CLARIFIES THIS SITUATION.

but even before we get to that stage, if the bank agrees a settlement it will be on the basis of excluding any subsequent claims,

This is nonsence, if you agree to those terms then thats your look out, we advise when getting settlement not to accept FULL AND FINAL this has been covered so many times.

this will be binding and not reliant on whether the accounts were separate. The pursuer will not get two bites at the same cherry. Hence the warning. Your suggestion will paint the OP into a corner that will be impossible to get out of. They are not strong on their charges, but if pushed on the OP's right to reclaim, this is a different issue and they'll take that all the way.

So the pursuer will not get two bites at the SAME cherry, CORRECT they wont as this IS seen as an incompetant claim, but they can get two bites at TWO CHERRYS, one account one claim.

The action is against the BANK not the number of accounts held by the OP, therefore challenging them 10 times for amounts of £500 each would STILL not be allowed to proceed. It's call an abuse of process.

So by your earlier admission that when you get your first settlement they will exclude you from futher claims, if you accepted that then that acceptance would be for that account, there have been many threads in relation to one account holder and numerous accounts, they all are treated seperately as is the offers that come in from the banks as is their charges and is the claimants right to legally pursue each account through the courts.

And you think they don't look for ways of throwing things out in Small Claims? SC still carries a risk of expenses - Royal Mail tried this on me, but the Sheriff denied their application due to bad faith, so there's no guarantee either way. However, following the correct route and having efficient counsel is the only way forward.

 

SMALL Claims does carry a risk of expenses, finally we agree lol. However this is limited to £75 maximum and very rarely awarded against the losing party, however to suggest the OP going OA which is against all the legal advice there is out there on this subject you are putting the OP in an extremely vulnerable position which could very easily go against them with costs being awarded, these costs are not capped remember.

[Bigmac versus]

Your posting of the 2nd March the very course of action you are advocating fell apart. You thought you could do the actions separately, you were wrong - and more than likely barred from raising it again in any track.

 

As i had pointed out, "without stating the obvious" that was ONE account and i have said this allows only one action, Are we not talking about TWO accounts here? therefore two actions are allowed, what part of this dont you understand as this has been clarified with a sheriff in my own case.

Advice has been given and it is up to peeps following this thread which choice they make.

Before making the choice PLEASE read other threads.

In relation to my claim, this was 1 account and it is now in the hands of the FOS as i have said in my own thread.

[Bigmac versus]

Summary Cause and Ordinary Cause are available tracks for higher amounts BUT ARE NOT RECOMMENDED for individuals. If you lose in Summary Cause or Ordinary Cause you will be fully liable for the bank’s costs.

This is the advice given.

 

There are other routes available where you have an account which has over £750 of charges, this has been discussed elsewhere and is going through the FOS.

[Bigmac versus]

May i ask how much each claim is and what bank please?

 

PM me if you wish.

[Bigmac versus]

Ok looked at the thread RB of Scotland, just need the amounts now.

[Bigmac versus]

Okay so as to put closure on the scenario buzby and myself were discussing lately i have visited in person both the Sheriff Courts and Trading Standards.

For anyone who missed this debate it was as follows.

 

If a person has two accounts with the same bank and the charges from both these accounts accumulate to say 1100 pounds which is say

Account A 500 quid

Account B 600 quid

 

As the charges from these accounts are under the 750 quid limit of Small Claims the question was could the accounts be kept seperate and therefore have seperate claims which would be two small claims or as they are with the same bank would this action be seen as multiple claiming and the second Small Claim basically being thrown out as incompetant because they should have raised one action in regards to the two accounts.

 

The Small Claims admin at the Sheriff Court said as they are TWO seperate accounts with seperate account numbers then they see that two Small Claims would be accepted, i asked for anythingi in writing that would say this and was advised there is nothing in regards to this.

 

 

Met a Senior advisory officer in legal services for the Trading Standards and posed the same question and was told the exact same two accounts two claims and went on to say that one account can be operated without the other being affected as in one can be closed and the other can stay open so there is no doubt about them being seperate as in claiming also.

The advice given from them was that claims over 750 quid in Scotland

was to use MCOL if possible and ruled out Summary cause or Ordinary Action due to possible costs, this is similar to Govan Law center who say over 750 quid in Scotland go through the FOS again avoiding Summary Cause and Ordinary Action, at the CAG over 750 quid we advise any of these options and to which suits the claimant best.

[Bigmac versus]

Ok here is some Jurisdiction: subject matter from case law

 

" Should not be vexed more than once for the same breach of contract or delict, which underlies the establishe rule of practice that a single act amounting either to a delict or a breach of contract cannot be made the ground of two or more actions for the purpose of recovering damages arising within different periods but caused by the same act"

 

As we are talking of two acounts then the above where it says " breach of contract or delict" as in singular, so we can now say for sure it is seen as two singular breaches of contract, therefore two actions would be fit.

 

 

" Though the delict or breach of contract be of such a nature that it will necessarily be followed by injuriuos consequences in the future, and though it may for this reason be imposible to ascertain with precise accuracy at the date of the action or of the verdict the amount of loss which wil result, yet the whole damage must be recovered in one action, because there is one cause of action"

 

The reference of one "cause of action" would be seen as one account, therefore two accounts are "two causes of action" which allows two actions can be raised.

 

Ths advice given to me was from Sheriff Courts and the Legal dept of Trading Standards, as there is no mention of this in print to be got anywhere and it will be in case law and need to be found then the advice given is from people whos proffession it is.

[Bigmac versus]

Good luck Neil.

[Bigmac versus]

Great news Neil, money soon me thinks.

[Bigmac versus]

Still got a couple of questions, if you don't mind.

 

1. What the hell do i take, say or do at a preliminary hearing?

 

Have you a date for this?

 

2. I was reading the previous posts about splitting the claim in two at the small claims court. (That was what i was intending to do: £750 1st claim then £750 2nd claim. I got the idear from Moneysavingexpert. )

 

I done this back in the early days amongst a few others and this action was seen as an abuse of the courts time, you should claim the total due at that time. Are you aware the small claims goes up to £3000 in Jan 08.

 

Howerver, i can see that if the bank offers me the "full and final settelment" i can't claim again.

 

Actually you can if you dont accept their terms of the settlement, when you sign their acceptance you could remove FULL AND FINAL and replace with PARTIAL settlement, as long as you dont actually appear in court you could bring a second claim using "Res Judicata" If you go to court and you win then any other action brought by you after that may be in danger of being thrown out, CB have done this.

 

3. What if i told the bank i will only accept on my terms ie, without the "full and final settlement" part.

Answered

 

4. Or what if i win in court, surley i'm then able to claim for the 2nd part of my claim as i have successfullly in court? No strings from the bank attached.

 

Answered however this is not a straight forward YES or NO. Which bank is this?

[Bigmac versus]

4th Dec and the Abbey.

You need to get your court bundle together.

[Bigmac versus]

You have me wondering now Scott,

[Bigmac versus]

Neilnicky it would be best for you to start your own thread.