scottish procedure

[Mitchell2007]

Can anyone help, Im new to this and was wondering, how you go about claiming in excess of £1500 via Ordinary action?

[Mitchell2007]

sorry, meant to add... what are the costs involved when claiming via Ordinary Action?

[buzby]

Best ask a Solicitor, and the prices vary to do shop around. As with small claims, if you win you get all your expenses back, but if you lose you'll have to pay the other's costs. This is not to say you won't be successful, but following the track of an OA prevents the bank from limiting your claim if you thought it might be a good idea to 'split'' and the bank thought it an even better idea to get you to settle and preclude any further action!

[Vital Spark]

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, what are MCOL and FOS? I really don 't understand this.

 

I am totally confused (like I wasn 't, previously????) now that there are so many pieces of differing advice.

 

1) If a claim for any one account comes to £750 or less, we use the Small Claims Court. Is that correct?

 

2) If it comes to more than £750 but less than £1,500, we use the Summary Cause path. Is that correct?

 

3) If the claim for any one account comes to over £1,500, we should go for Ordinary Action and seek a solicitor. Is this correct?

 

4) If we are claiming for more than one account and any one of them comes to more than £1,500, we should lump both accounts into the one action to save Court time and, if a solicitor is used, save solicitor's fees? Is that correct?

 

5) If the total claims from numerous accounts, in any one bank, comes to more than £1,500, we would be as well and perfectly correct to use one action to reclaim charges plus interest on same.

 

6) If we use a solicitor, the banks will have to pay for this and any other costs, therefore, we do not lose out. Is this correct?

 

7) It is not the solicitor's job but ours to do the calculating of the claim amount and interest. Is this correct?

 

Sorry for being such a pain on this matter but seems to me that it's the nuances in Law which can make the difference between winning and losing and I feel no confidence, at present, as to what is and what is not correct.

[buzby]

I disagree with Bigmac's version, as it totally ignores what the defender can do to spoil the party. You get painted into a corner by settling for a figure that prevents you raising a similar action again. This has nothing to do with what the court Will 'let you get away with' it is what the defenders solicitors are clever enough to manipulate the system. If you go OA, they have no option, as they know you're not messing about.

[Vital Spark]

As already expressed, I am not confident that I am in full understanding of all that is advised and written in the CAG forums. However, it seems to my feeble mind that Busby has a logical and legitimate point.

 

When the first cases came to fore, the banks would be in a state of shock equivalent. Now, however, they must be getting worried by the number of customers rec laiming charges. Their solicitors, whom we can be sure are the top legal brains, as banks can afford them, will b e mu ch better versed in handling these cases so, if we don't get it absolutely right, the b anks' solicitors are not going to say, "Oh well, they got it a bittie wrong but they are right morally,". They are going to take full advantage and apply the proverbial boot.

 

Given the ex perience the banks have gained from past cases, I think we must look to the loopholes and ways to block them or stop their appearance rather than to the first cases to have gone through when perhaps the bank lawyers were not so well versed on a very new situation.

 

We would love to think that the sheriffs are going to judge in favour of the ordinary man but even they HAVE to take into account the defendant's arguement and, if that stands up legally, she/he MUST judge accordingly.

[bohannon67]

Hi all, just joined up. Wondering best way of reclaiming over £500 and under £750 from A+L. Their final offer of £100 odds unnacceptable. Advice well appreciated!(Glasgow area).

[buzby]

Small Claims - you're under the £750 limit. Get the forms from the local court, from the Scottish Courts wensite.

[foogie42]

hi mate

you can raise an ordinary cause action the limit is £1500,this will cost you £39 ,best of luck

[foogie42]

hi mate

i'm claiming back nearly 7k from clydesdale,i raised an ordinary cause action for £1500 and they never lodged a defence and paid me £1567 with the expenses,go to your local sherriff clerks office and ask for the forms for an "ordinary cause" the limit on this is £1500 and will cost you £39 it is most important that you fill the forms in correctly ,and state clearly what you are claiming for as judges think they are god! anyway i was allowed to lodge another 4 ordinary cause actions for the same date at court and the clydesdale lodged a defence ,went to court and theyr.e lawyer wanted the case dismissed on the grounds the forms weren.t filled in properly but the judge has allowed a delay until july so i can address this,that is why it is very important to fill forms in with details of what you are claiming. there is a copy of a form lodged by someone on this site under scottish courts copy that and use it to fill out your own forms but dont be frightened remember it is your money. [EDITED].

best of luck!

 

Please do not make libellous comments and also please refrain from the use of bad language.

[Vital Spark]

I thought the "Ordinary" necessitated a lawyer and that it was the "Summary Cause" that one could do oneself. I am sure the limit on that is £1,500: in Scotland, anyway.

 

Busby is right though. If the claim comes to less that £750, why not use the small claims court?

[buzby]

As Vital notes, Summary Cause you can do yourself under the £1500 limit. Anything over this is an 'Ordinary Action' (OA) and a Solicitor is the only way to pursue that.

[bohannon67]

Cheers Buzby, Foogy42. Got Small Claims Form from Sheriff Court other day, however at last moment b4 fillin in decided to go FO route. Couple o reasons...no need to build case, its free, court path will follow if unsatisfactory outcome( can,t go to FO after court case ) and i believe FO has awarded 100% of moneys claimed so far. Thought it worth trying 1st tho realise it's 6 and half dozen. Also recievd statements from HBOS after they 2c sent me 3yrs only, decided to really push my luck and just phone Dunfermline no and ask for my money back, guy very nice on phone and registered my complaint. Promised i'd receive word in 5 days, we will see!

[Punjaban]

Hi, can anyone help me as i need direction. I put in a summary cause and the bank has not responded withing the return date given by the court, i got told i need to now do a decree.....anyone knows what happens here as i am not familiar with this or lead me to the right direction? Many thanks.

[bandonbhoy]

Go tocourt and complete MInute 11, which is one page doc and hand in to office. Then when case calls the decree will be granted to you. This wil then be sent to you about 14 days later. You can either get Sherifs officers to serve, send front page copy to org or phone them and tell them. interest is rollin along from the date you lodged the prig [ppapers at court to daye of settlement.

[buzby]

Congratulations on getting Judgement! Since the action wasn't responded to, you've won (unless they subsequently appeal), so it is simply a matter of waiting, as you'll receive the Decree of judgement automatically in 14-21 days, in order to give them time to appeal.

[jen_dd]

Hope this isn't stating the obvious, but have you checked that they haven't simply paid the money into your account? I thought the bank hadn't responded, but they had just paid money in - letter came over a week later.

[Vital Spark]

Hi, this came from a member of staff at BOS: the BOS are not quibbling but just paying out whatever the customer claims back in charges. I'm not sure whther this is only to those who claim the charges without interest.

 

I do know one young man who claimed only that which the bank had taken and he was given the lot, immediatey and without quibble but he hadn't requested any interest. Said he was happy to have got something. Bit silly in my opinion given what's been happening but each to their own.

 

Anyone know of a lawyer in the Central Belt (Fife to Glasgow) who would take on a OA and who is good?

[bandonbhoy]

last week decided to phone them and ask for sensible offer.charges of 14k and then interest. todays post offers 4500!!!!

fos here we come.

[bandonbhoy]

For new claims, I understand the court fee rises from £39 tomorrow to £44 for all claims submitted

[mjg]

does the moniorium due to the OFT case cover scotland as well?

 

mary

[buzby]

It doesn't, and it isn't relevant to Scottish actions, however the defenders could make an application to the court for a stay pending the result of the English action. The problem is that the OFT is seen as a cross-border entity and its actions are for the benefit of all, so a Scottish Court may agree to the request. I think the only way to find out is to do it and see what the result it.

[mjg]

thanks Buzby. Now just need to try and get my head around what is the best way to proceed as my claim is nearly £4000 which is way over the lower court limit.

[buzby]

Ah - you're well into OA (Ordinary Action) territory at this level. I'd suggest you run it past a solicitor first, as you cannot pursue an OA yourself, and if the Sheriff agrees with any application to stall until the OFT ruling is heard in England, you'll be left paying for everything as there won;t be a judgement....

[Vital Spark]

As long as you've followed the steps of Prelim Letter, followed by LBA then yes you're next step is Court.

 

In Scotland, as you're aware, the Small Claims limit is £750, so what to do is break your total down (by Date is easiest) and claim the older ones first.

 

Submit this and get the claim settled, then go back as many times as required to get your full amount.

I think the banks have been asking the courts to take all charges into account so as to take the total over the small claims court limits. It's one ploy they've used for negating our claims.

 

If your claim is for more than £1,500 you have to go for Ordinary case and get a lawyer to act for you.

 

Small claims go up to £ 750 then Summary Cause which you can do yourself but over the £1500, it has to be handled by a solicitor in an Ordinary case.

 

I'm no expert but given the advice I've received, I'd say not to risk a number of years (In Scotland, we have a 20 year claim limitaion) of charges being lost through chopping up the one claim thus enabling the banks to use the loopholes to beat us. Go for the full amount. The banks will have to pay the costs when you win your case which, you are highly likely, nay, probable to do.