george mcm vs Clydesdale bank

[maroondevo52]

Hope all go's well George, my return date's the 13th March, my first Summary Cause against BOS. I'll keep watching this thread with interest.

 

Regards.

 

Scott.

[Bigmac versus]

Thx maroondevo52 time will tell, no response as yet from them although was only received by them last week so theres time yet.

[mel5]

Hi George

Haven’t been on-line for a while as I was waiting for 27th Jan hearing on small claim No 2 vs Clydesdale Bank.

 

Expected it to be same as last time “our charges are fair blah de blah “ and was shocked and totally unprepared for the defence Clydesdale’s solicitor used.

Her defence was that my claim should be thrown out as it was “incompetent” for the following reasons:

 

1. because I had known at the outset that the amount I would be claiming was approx £3k I should have claimed the whole lot in one go.

 

2. I was therefore abusing the small claim system and as one claim had already been made for £750 and settled this 2nd claim should be dismissed on the grounds of incompetency. She produced 3 different cases to support her argument. (None of which I might add were against bank charges).

 

The sheriff had a recess so that he could study them

 

When he returned he told the solicitor that the cases she had submitted were different from mine in that the claims made in each case were for one incident at one specific time and as such he agreed that the small claims system should not have been used. But he added that although this second claim of mine was almost identical to the first in that I was claiming the same sort of amounts viz for returned dds etc these had been incurred not as one charge but as a succession of charges and as such he thought that the small claims system could be used.

 

However he was going to continue the case for a month (27th March) before giving his decision. And as I had not been aware of the defence I could consult a lawyer if I so wished.

The best or worst of it is that they had made me an offer prior to the hearing but because it didn’t include interest and expenses I turned it down.

 

So what do you think? Should I worry?

All encouraging and optimistic comments will be gratefully received.

Mel

[Bigmac versus]

Hi Mel after reading this the way i interpret it is that the sheriff has basically come to a desicion that you can use the small claims, that the defence is no bearing in relation to your claim, if another case like ours had been thrown out for this then the lawyer would have used this for their defence, its a game of poker face now but after that i personally would expect the bank to settle before reappearing.

Your first claim did they show up at court or did they offer before it was due?

 

 

When he returned he told the solicitor that the cases she had submitted were different from mine in that the claims made in each case were for one incident at one specific time and as such he agreed that the small claims system should not have been used. But he added that although this second claim of mine was almost identical to the first in that I was claiming the same sort of amounts viz for returned dds etc these had been incurred not as one charge but as a succession of charges and as such he thought that the small claims system could be used.

[Bigmac versus]

Hi all so far no correspondance from CB solicitors.

[Bigmac versus]

Return date was Friday past, so off to court to see if a CB defence in place tommorrow, know what im expecting mind you.

[allybee13]

Good luck mate. I'm going to have a claim in against these monkeys so it looks like I will be making a trip (or two) to Glasgow Sheriff Court. Luckily, I've been there before (jury duty, of course) so I know the layout and it doesn't worry me at all.

 

I've still not had a response to my request for DPA info that I sent on 9th Feb - no acknowledgement letter and they haven't cashed my cheque.

[Bigmac versus]

Hi allybee13 they can take 40 days but as they havent cashed the cheque i would phone them just to confirm that they have at least got it and remind them of the timescales they have.

 

Im in court Friday morning and the CB solicitors are appearing or so ive been told so will find out then whats happening.

[caro]

I'll be thinking of you Bigmac.

[Bigmac versus]

Thx Caro for the support, roll on Friday.

[Bigmac versus]

Well spent all night getting my court bundle together so im all ready to go.

[caro]

Get a good nights sleep tonight then ready for tomorrow. Go get 'em!

[change-it]

go for it bigmac! best of luck for tomorrow;)

[allybee13]

Best of luck for tomorrow George. Hope you win big!

[Bigmac versus]

Thx all, they are prob going to ask for case to be struck out as had earlier full and final settlement in December but that letter started by saying

IN REFERENCE TO THE ABOVE SUMMONS so my defence is exactly that but it all depends on the judge and how its presented, feel they have tricked me into that acceptance as it was for the FULL amount of the small claim and to refuse the offer then go to court wouldnt have been the wisest move i thought, if i could turn back the clock i would not have signed it, anyway if i lose hopefully i wont get costs awarded against me thats my only fear of going to court and i will be that MAD i will make sure it costs them more by spreading the word outside their branch where i live, wont get me my money back but it will make me fell better, lol.

[caro]

Don't be too hard on yourself Bigmac. Don't forget that just cashing the cheque is enough to settle the claim in their eyes, so it wouldn't have made any difference. You couldn't have known they would come up with this, and all you can do is your best. You are very capable, you've been to court before, the agents don't seem to be given much information, and you know your arguments. Go in with a confident positive attitude and show them that you will be taken seriously. They have charged you extortionate amounts of fees, unlawfully, and then tried to dupe you into accepting less than has been taken from your account. You accepted the payment in full and final settlement of that claim, but your schedule was very clear that it only covered the charges shown. It would have been foolhardy to risk a large claim, leaving yourself open to costs against a multi-national business.

 

Also remember, you are a litigant in person, and cannot be expected to understand the finer points of the legal system, and genuinely believe that your claim is fully justified. Ask for clarification of anything you don't fully understand, especially if they try to get it struck out. Obviously don't argue, but as long as you come across as a rational person with, in your eyes at least, a legitimate claim, the judge should make sure you understand it all. Go on Bigmac. If anyone can do it you can.

[Bigmac versus]

OK been to court and LOST the case i need to return in April for costs that are awarded against me, their lawyer (CB) defence was that i should have brought an OA aginst the CB as i knew there was more charges to be claimed, he provided papers that ruled this was the case and so the judge agreed, didnt claim the full and final settlement defence just that as i had claimed before in a small claims then i cant claim for other charges in that same account, i have the defence and will be on later tonight around 9 pm where i will elaborate some more.

I put up my argument and the judge said who advised you that this could be done in the way you have and i advised hime i was a member of the consumer action group and that the charges were seperate so therefore a seperate smallclaims could be raised, the judge said this action to avoid OA was to avoid any costs and is indeed causing the courts to be backlogged.

 

ANY THOUGHTS, LOL.

[caro]

Oh George I'm so sorry. This is completely unfair on you, and I really don't understand how under European laws the Scots can only claim such a small amount in small claims.

 

Will wait for more details.

[livelylad]

All our thoughts are with you.

[Nelly75]

That's a tough break mate.

 

 

Hope you can find some way around this but a re-think of tactics is required all round as I'm sure the banks will try to quote this case to discourage others.

[Bigmac versus]

OK this is the defence that the solicitor won with it is a bit long but will put in the bits he relied on and the judge agreed.

 

Jurisdiction: Subject-matter, remedies, exclusion.

 

should not be vexed more than once for the same breach of contract or delict, which underlies the established 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.

 

Sheriff Court Practice

Competent and omitted

 

2.112 The plea of "competent and omitted" is based on considerations similar to those underlying the plea of res judicata.

Where he is the pursuer in the subsequent process and the omitted grounds are the only grounds of the action, the court will sustain the plea of "competent and omitted" stated by the defender and dismiss the cause.

2.113 The raising of a multiplicity of actions is also inhibited by the principle

 

Damages for all the losses arising from one ground of action must be recovered in one claim: it is not competent to bring a further action on such grounds as that the damages were inadequate, or that it has later been ascertained that the injuries and loss are more serious than were suspected at the time of the original claim and award.

 

SUCCESSIVE claims for damages

If an action for damages is founded on a single breach of contract, it must conclude for the whole loss which the party expects to suffer and hopes to recover. Any second action is incompetent, and is not rendered competent by the fact that it is based on a loss which has emerged subsequent to the first action. Thus in STEVENSON V PONTIFEX & WOOD

The law of contract in Scotland

 

22-09 The parties may by contract exclude or limit the liability to pay damages. They may provide for the amount of damages in an enforceable penalty clause. The problems of exclusions and limitation clauses and of penalty clauses are considered elsewhere. They may provide that the contract will not be enforceable after a certain period.

 

22-12 All claimants for breech of contract should be raised in one action, even if they are difficult to assess. Damages cannot be obtained in installments at connon law. So if there has been a prior award for damages, a second action for further damages arising out of the same breach is incompetent. Therefore it is not possible to obtain a declarator that the defender is liable to pay for future losses arising from a breach of contract.

If however there are seperate breaches of the same contract, there may be an action in respect of each breach.

 

DAMAGES ASSESSED ONCE AND FOR ALL

It is a general rule in both delict and breech of contract that the damages which arise from one and the same cause of action must all be assessed and recovered in one action. The pursuer may bring only one action and recover damages for all his loss, past, present and future, certain and contingent, direct and consequential, and that either in delict or breach of contract.

It follows that, unless the cause of action be a continuing one, the pursuer must recover prospective damages in his one and only action.

Where there is a continuing cause of action, as from the repetition or continuance of a series of wrongs of the same type in the same circumstances, a fresh action may be brought in respect of each fresh incident and hence prospective damages are not recoverable but only damages up to the date of the quantification in the action.

REPORTS-1909, 1 SCOTS LAW TIMES.

Avizandum, 16th Feb 1909

The lord Ordinary has dismissed the action, on the grounds that a pursuer of an action of damages must bring forward all his claims at once, or, as he puts it, that damages resulting from one and the same cause of action must be assessed and recovered once for all.

If it is found, as the result of the enquiry into the facts of the case,m that the pursuer's advisers knew, or ought to have known, that the subsidence was in progress, we might hold that the pursuer had elected to make the claim in the first action as representing the measure of what he was content to recover.

Dec 7 1887 Stevenson v Pontifex & Wood

Reparation- breach of contract - Different actions of damages founded on one breach- Competency.- A single act, amounting either to a delict or to breach of contract cannot be made the ground of two or more actions for the purpose of recovering damages arising within different periods, but the whole damage present and future must be recovered in one action.

 

REPORTS-1977, SCOTS LAW TIMES

 

Lord Mclaren, with whom Lord Kinnear concurred, appears to have been of the view that the second claim could only succeed if at the time of the first action the damage to the land, which was the subject of the second action, was neither foreseen nor reasonably foreseeable. The basis of the present action and of the declaratory conclusion is that all 50 houses are subject to defects causing structural instability which, it is said, has already manifested itself in all the houses.

 

It is possibly arguable that, as matter of policy, the rule in Stevenson v Pontifex & Wood, is too sweeping and over harsh on pursuers in a case such as present, but that is not a matter for me. The rule in my opinion is unequivocal, is binding on me in this court, is applicable to the present case and precludes the declaratory conclusion, construed as i think it must be construed in the context of the present action.

 

THATS IT FOLKS, sorry it was so long the judge summed up by saying

 

The rule in my opinion is unequivocal, is binding on me in this court.

[caro]

This is surely not something that the usual Clydesdale legal team has come up with! It does indeed seem unequivocal, but unjust in the small claims court when Joe Public is simply fighting for his rights as he sees them. It's not something you can respond to as a litigant in person in a couple of weeks or so.

 

Did you get the impression that the judge had any sympathy at all fo your case? I assume you have no indication of what the costs might be at this stage.

[Bigmac versus]

TBH the i got the defence only when i was at the dock then asked by the judge what is your response to the motion, this was like as soon as the solicitor said what he said and gave me the paperwork, i was gobsmacked and reitterated that the charges were all seperate and that as such should be treated seperately, therefore two or more claims could be made, apparently not though, he didnt appear sympathetic and indeed did say earlier that he was finishing early due to going to a funeral, i was the very last case.

No reference was made in relation to costs exept that i am to appear again for this.

[caro]

Is this the normal procedure in Scotland? How on earth are you meant to read, digest, and formulate a response or questions in these circumstances?

 

It seems completely unreasonable not to give you the opportunity to do this. Knowing nothing of the law, I would have thought that an adjournment might have been in order. Was there a bundle with the relevant cases attached for you to look at? Is there a right of appeal?

[Bigmac versus]

I dont know all a bit dazed for now, i feel to ask me to respond was a little unfair, i did say i hadnt had a defense so hadnt the time to absorb and reply, his reply was that it seems pretty straightforward to him in that it is clear the case will be dismissed.

Right to appeal : unsure, need to take stock of the situation and decide what to do.