New CCA/Court claim rules for Scotland

[the main man]

Credit Today online

[dundeelaw]

This is great news for customers who wish to challenge their "Credit Agreement".

 

I was about to start my Incidental Application (Pre-Application Disclosure) for my Creditors to provide me with the Original Agreement. I am now going to wait and submit my claim on December 1st.

 

They will have very little chance of winning as I know they cannot provide the Credit Agreement. All they can provide is the Application Form which is not admissbale as a Regualted Credit Agreement.

[craigers]

does anyone know where i can read up on this in more depth? i've googled it but can find SFA.

[IdaInFife]

there isnlt nothin much now other than the above until they meet next month and should be more info them

 

dundeelaw can you explain on how you are going to apply for IA without any actual court proceedings already raised?

 

Ida x

[dundeelaw]

You do not need to have a Court Action Raised. You can Apply to the Court for the Defendant to provide you with certain information you require in order to pursue Legal Action in the Small Claims Court.

 

You can use the same Template as a Pre-Action Disclosure in the District Courts in England and Wales (remember to change Pursuer to Applicant and Defender to Respondent)

 

Court Application

 

IN THE COURT OF DUNDEE in the Sheriffdom of Tayside, Central and Fife.

 

CLAIM NO:

BETWEEN:

[insert your name]

Pursuer

 

-and-

[insert the name of the lender]

Defender

 

Incidenatal Application

 

TAKE NOTICE that I, [insert your name and address] intend to apply before the Sheriff on

 

Date: [leave this blank – the court will fill it in]

Time:

Place:

 

1. The Defender do, within seven days, make and serve upon me a Witness Statement verifying whether the following documents are or have been in its possession, custody or power and if they no longer are, when the Defender parted with them and what has become of them.

 

A copy of my application for a credit agreement, a copy of the agreement between me and the Defender, correspondence and statements relating to my account with the Defender.

 

2. In the event that the documents do exist, that the Defender do provide me with copies within 7 days.

 

3. And the costs of this Application to be paid by the Defender.

 

The grounds of this Application are that the Pursuer intends to issue proceedings against the

Defender for a declaration that the credit agreement is unenforceable under the terms of the Consumer Credit Act 1974 and that no amounts are due to be repaid. The Pursuer contends that the Credit Agreement was not properly executed. The Pursuer’s claim is dependent on the contents of the requested documents currently in the Defender’s possession. It is in the interests of justice that these documents are disclosed to the Pursuer before the claim is formulated and to explore the possibility of settlement before proceedings are issued.

 

The Defender is likely to be a party to subsequent proceedings and the Pursuer is also likely to be a party to those proceedings.

 

The Pursuer requested the Defender to give disclosure sought voluntarily but the Defender has failed to do so.

 

The Pursuer will rely upon the attached Witness Statement.

 

The name and address of the people upon whom it is intended to serve this application are:-

 

[insert details of lender]

 

The address to which documents about this case should be sent is [insert your home address].

 

The Pursuer believes that the facts stated in this Application are true.

 

Signed…………………………………………

Pursuer

 

Dated………………………………………….

[Monty2007]

You do not need to have a Court Action Raised. You can Apply to the Court for the Defendant to provide you with certain information you require in order to pursue Legal Action in the Small Claims Court.

 

You can use the same Template as a Pre-Action Disclosure in the District Courts in England and Wales (remember to change Pursuer to Applicant and Defender to Respondent)

 

Court Application

 

IN THE COURT OF DUNDEE in the Sheriffdom of Tayside, Central and Fife.

 

CLAIM NO:

BETWEEN:

[insert your name]

Pursuer

 

-and-

[insert the name of the lender]

Defender

 

Incidenatal Application

 

TAKE NOTICE that I, [insert your name and address] intend to apply before the Sheriff on

 

Date: [leave this blank – the court will fill it in]

Time:

Place:

 

1. The Defender do, within seven days, make and serve upon me a Witness Statement verifying whether the following documents are or have been in its possession, custody or power and if they no longer are, when the Defender parted with them and what has become of them.

 

A copy of my application for a credit agreement, a copy of the agreement between me and the Defender, correspondence and statements relating to my account with the Defender.

 

2. In the event that the documents do exist, that the Defender do provide me with copies within 7 days.

 

3. And the costs of this Application to be paid by the Defender.

 

The grounds of this Application are that the Pursuer intends to issue proceedings against the

Defender for a declaration that the credit agreement is unenforceable under the terms of the Consumer Credit Act 1974 and that no amounts are due to be repaid. The Pursuer contends that the Credit Agreement was not properly executed. The Pursuer’s claim is dependent on the contents of the requested documents currently in the Defender’s possession. It is in the interests of justice that these documents are disclosed to the Pursuer before the claim is formulated and to explore the possibility of settlement before proceedings are issued.

 

The Defender is likely to be a party to subsequent proceedings and the Pursuer is also likely to be a party to those proceedings.

 

The Pursuer requested the Defender to give disclosure sought voluntarily but the Defender has failed to do so.

 

The Pursuer will rely upon the attached Witness Statement.

 

The name and address of the people upon whom it is intended to serve this application are:-

 

[insert details of lender]

 

The address to which documents about this case should be sent is [insert your home address].

 

The Pursuer believes that the facts stated in this Application are true.

 

Signed…………………………………………

Pursuer

 

Dated………………………………………….

 

 

This would not work. There is no legal basis within the small claims rules for the other side to comply with this request. They "may" be helpful and provide you with documents but there is certainly no basis for them providing this. I have been through this a few times and with Ordinary causes cases (where a Motion is served) and small claims.

 

See Hennessy's book on Civil Litigation and other texts.

[dundeelaw]

This will work from December 1st when the courts will ask for hte Original Credit Agreement to be provided.

 

It works in Engalnd and Wales, I have done it 2 times. I am waiting til December 1st to go through the Scottish Court System where I will have more luck. It will be upto the Defender to provide these documents.

 

I know it has been successful in Scotland with the Thanks of Consumer Action Group Members.

[Monty2007]

This will work from December 1st when the courts will ask for hte Original Credit Agreement to be provided.

 

It works in England and Wales, I have done it 2 times. I am waiting til December 1st to go through the Scottish Court System where I will have more luck. It will be up to the Defender to provide these documents.

 

I know it has been successful in Scotland with the Thanks of Consumer Action Group Members.

 

There are no pre-action protocols in Scotland. The change in Scotland from December only relates to the provision of the consumer credit agreement with the initial writ wrt consumer debt cases. IMO they will simply provide the "application" and T&C and seek to have this enforced by the court. I don't really see very much changing.

 

There are no CPR equivalent rules in Scottish civil litigation, what works in English jurisdiction will not necessarily work in Scotland, the processes are very, very different.

 

It took me a year to get to grips with it but was worth it in the end;)

[IdaInFife]

Thanks Monty,

 

didnlt think there was any pre actions available up here

 

you said yuu know this has been succesful in scotland through cag.. can you give us links asi do no know any sottish caggers that have done this or even attepted to?

 

ida x

 

ida x

[beetle1234]

There are no pre-action protocols in Scotland. The change in Scotland from December only relates to the provision of the consumer credit agreement with the initial writ wrt consumer debt cases. IMO they will simply provide the "application" and T&C and seek to have this enforced by the court. I don't really see very much changing.

 

There are no CPR equivalent rules in Scottish civil litigation, what works in English jurisdiction will not necessarily work in Scotland, the processes are very, very different.

 

It took me a year to get to grips with it but was worth it in the end;)

 

I was initially quite excited to read about this but comment from Monty2007 has tempered my enthusiasm and I can now understand why...however Monty,would you agree that it is a positive step in the consumers favour ? If nothing else it draws further attention to the subject by the courts who in essence are saying IMO that it is not good practice to bring cases to their attention on a whim and if case is lacking in the very basic sense....by bringing legal proceedings and not having an enforceable cca?

 

I believe what Monty says is 100% correct....he knows the Scottish system VERY well indeed.Without his help I would NOT not have won my case against M&S and many others are in the same boat !

 

Dundee,if you have cag examples of this process being succesful you need to share these with us...sharing of knowledge/experiences what the forum is all about

[Monty2007]

Thanks Monty,

 

didnlt think there was any pre actions available up here

 

 

you said yuu know this has been succesful in scotland through cag.. can you give us links asi do no know any sottish caggers that have done this or even attepted to?

 

I believe Dundeelaw stated this in his post.

 

ida x

 

ida x

 

see comments

[Monty2007]

I was initially quite excited to read about this but comment from Monty2007 has tempered my enthusiasm and I can now understand why...however Monty,would you agree that it is a positive step in the consumers favour ? If nothing else it draws further attention to the subject by the courts who in essence are saying IMO that it is not good practice to bring cases to their attention on a whim and if case is lacking in the very basic sense....by bringing legal proceedings and not having an enforceable cca?

 

I believe what Monty says is 100% correct....he knows the Scottish system VERY well indeed.Without his help I would NOT not have won my case against M&S and many others are in the same boat !

 

Dundee,if you have cag examples of this process being succesful you need to share these with us...sharing of knowledge/experiences what the forum is all about

 

Dear Beetle

 

Many thanks.

 

I think it is a great move by the Scottish judicial system. For one it gets the key document into the open and at the outset of proceedings. The Defender can avoid the games played with having to serve Incidental Applications (for small claims or summary cause actions) which can be simply ignored from what I can see and experienced. BUT I do think the Pursuer will simply attach the application, T&C's and claim that this is an enforceable agreement. I believe that this would have been the approach in both my cases.......

 

I am really delighted with this development but just trying to warn people of what it may mean in reality and practice. I also think, in some cases it will make the Pursuer think twice before serving the writ.

[the main man]

Consumers secure claims victory - 04/12/2009

 

A financial claims management firm has won what is believed to be the first consumer credit decision on jurisdiction, which could enable individuals across the European Union to launch cases.

 

Cartel Client Review has revealed that, following its previous successful management of a couple’s claim in the County Court, it has now secured a further victory in an appeal hearing.

 

The claim was managed on behalf of John Millar and Jennifer Millar against Nemo Personal Finance Limited (Nemo). Cartel helped to stop an attempt by Nemo to prevent the Millars from bringing their claim in an English court. Nemo later appealed, asserting that there was an exclusive jurisdiction clause in their credit agreement, preventing the clients from bringing their claim outside of Scotland where they lived

 

But in an appeal judgment handed down by Judge Christopher Tetlow on 2 December 2009, the decision effectively ruled that that the two should be permitted to bring the case outside of Scotland.

 

For decades, UK consumers in Scotland and Northern Ireland have been prevented from using the Courts in England and Wales. This has now changed. The judgment is therefore believed to have huge ramifications for UK consumers, particularly those who are domiciled in Scotland and Northern Ireland.

 

Carl Wright, chief executive of Cartel Client Review, said: "Where banks have previously tried to suppress consumer rights by insisting upon the inclusion of an exclusive jurisdiction clause within credit agreements, this judgment sets out clearly the rights of UK consumers to bring their claims in an English court where previously it was prohibited."

 

He added: "No longer will consumers be automatically forced to bring claims in any specific European jurisdiction, just because the credit agreements stipulate they should. This opens the prospect that UK consumers could bring a Spanish, French or German credit dispute in the English Court, regardless of any jurisdiction clause."

 

Andrew Settle, of specialist consumer law firm CCLS, said: "The appeal ruling by HHJ Tetlow will send a shiver down the spine of every bank that offers credit agreements across multiple jurisdictions. The prospect of claims being made in English courts, for credit agreements that were written for different European jurisdiction, will send shock waves throughout the banking world."

 

This case was brought by Cartel on behalf of John and Jennifer Millar, after Nemo Personal Finance tried to restrict the Millars from bringing their financial claim against Nemo anywhere outside of Scotland.

 

Cartel decided to challenge the credit agreement that Nemo stated could only be challenged in Scotland, by bringing the claim on behalf of the Millars in the English courts.