incidental application

[rory32]

Hi luckyj.

 

What did the incidental application state - do you know? Was it just the usual argument relating to the test case, etc?

 

What arguments did you previously use to try and remove the sist?

[rory32]

I have posted on his thread lateralus.

[rory32]

Okay. Let me have a wee think about it and I'll try to post my thoughts tomorrow (a.m.) on what you should argue.

 

Does the letter state that they need the documents by the 24th or that there will be a hearing on the 24th?

 

Have you contacted the court to see when any hearing will be? The court should have sent you a letter stating this but they only send these by normal post so it's quite possible that you haven't received it.

[rory32]

Thread moved to Scotland Forum

No it isn't. Try again Scott.

[rory32]

Am I correct in assuming at this point that tomorrow I am only going to court to recall the sist and not to argue the whole case ?

Yes. My understanding is that you will have the opportunity to state your reasons why the sist should be recalled. The sheriff will then decide whether the sist will be recalled or not. If it is recalled a hearing date for the actual case will be set.

 

Motions to sist

15.6.—(1) Where a motion to sist is made, either orally or in writing in accordance with rule 15.1(1)(a) or (b)–

(a) the reason for the sist shall be stated by the party seeking the sist; and

(b) that reason shall be recorded in the interlocutor.

(2) Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.”

[rory32]

The reasons are contained in the decision of the Crossan case (paras 43 to 53). I'll try and put these into some sort of order and bullet points for you to use later.

 

The bank will argue that this case is to do with the arrestment of benefits and a bank charge is not a form of arrestment but you will counter argue that the case is also to do with the special nature of state benefits when they are identifiable.

[rory32]

I think that you should mention the Crossan case as it's a Sheriff Principals decision which is binding on the lower courts.