Judicial Guidance in Scotland

[Coactum]

Is there such a thing as a request for Judicial Guidance in Scotland?

 

I have a vague recollection that an lay person defending their case can request that the Sheriff directs them in law to ensure that nothing they say or do can be used against them unless recorded after such advice is given.

 

Does anyone know what I'm talking about and if such a request must be in writing when initial defence is submitted?

 

I'm about to finalise my defence statement http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/203294-halifax-formerly-bank-one.html and if this is necessary then i had best ensure it is in at the outset.

[Guest Old_andrew2018]

Bump

[Coactum]

bump

[Bigdebtor]

good point - just wish someone would answer it!

[Coactum]

Me too!

[Bigdebtor]

Coactum

 

Damn - thought that was an answer coming!

 

BD

[Coactum]

My case is rapidly approaching and I'm still looking for an answer to thuis question. can anyone please assist?

[IdaInFife]

have you tried Monty?

[Coactum]

No, I'll PM him.

[Monty2007]

Hi Coactum

 

I have not come across Judicial Guidance before. My suggestion would be to look at the legal reference books within the Mitchell Library in Glasgow which has a well resourced law section, I did all the research there for my two cases.

 

I found that on both ocassions that the Sheriff gave me more leeway and guidance since he acknowledged that I was a party litigant and the big nasty banks had expensive and experienced counsel, indeed one Sheriff went out of his way to provide reference to books, process and presentation of information. The courts here want to avoid appeals at all costs and I think they are also sick to their teeth with banks getting judgement by default. It was also interesting that both Sheriffs gave the banks a very hard time and made it quite clear in the Ordinary Cause action I defended that they stood no chance of success with the evidence that they had presented.

 

In the end it will come down to the enforcability of the agreement, DN and and procedure that they have followed, or not as the case may be. I had a lot of help in finding multiple weaknesses in their cases and was able to present this to a fair and receptive Sheriff.

 

I will take a look at my copy of Hennessey and come back to you if I find anything, though as I suggest above, the larger reference litigation texts are in the Mitchell library though in Glasgow.

[Coactum]

Many thanks Monty, I am encouraged by your comments that the Sheriff was helpful in guiding you which is all I am hoping for. I just thought that there was something the defender needed to do at the outset to set the grounds for the Sheriff to provide such guidance and that’s why I started this thread.

 

I wholeheartedly agree that it seems the bank raise action in the hope that defenders will buckle under and reach agreement to pay regardless of whether their case is watertight. I suspect that the court do indeed see many cases awarded to the banks simply because the defended has failed to submit a defence.

 

I have visited the Mitchell before and as you will gather the volume of information available is immense making it a challenge to find the right paragraph of text if you don’t really know where to start looking. I think that rather than allocating a half day as I did first time around I’ll go for longer this time. Part of my problem is finding things that are nothing to do with the topic of research but interesting nevertheless and before I realise it I’ve wasted an hour.

 

I believe that my case is clear cut, you have previously contributed to that thread (halifax-formerly-bank-one), insofar as the bank have admitted in their first motion to abandon that the default notice is flawed. I opposed their motion to abandon on the grounds that a defective default notice cannot later be corrected by a valid one and consequently the bank could not raise fresh action. As such decree of absolvitor was craved. They responded with a second motion to abandon using Ordinary Cause Rule 23 this time with a motion of dismissal plus the award of expenses to me. I opposed again on the grounds that it the Sheriff was able to grant me decree of absolvitor following the first motion to abandon that he should still be permitted to do so now.

 

The banks solicitors are very anxious to abandon this case, yet always ask in correspondence for my proposals for repayment. I am convinced that unless I am granted absolvitor that they will start the whole debt collection process again. However, only if they were to take this to court could I use the current case as my grounds for defence. All in all this is very debilitating particularly as the Halifax are not my only creditor though they are the only one to have taken the matter to court so far.

[Monty2007]

Many thanks Monty, I am encouraged by your comments that the Sheriff was helpful in guiding you which is all I am hoping for. I just thought that there was something the defender needed to do at the outset to set the grounds for the Sheriff to provide such guidance and that’s why I started this thread.

 

I wholeheartedly agree that it seems the bank raise action in the hope that defenders will buckle under and reach agreement to pay regardless of whether their case is watertight. I suspect that the court do indeed see many cases awarded to the banks simply because the defended has failed to submit a defence.

 

I have visited the Mitchell before and as you will gather the volume of information available is immense making it a challenge to find the right paragraph of text if you don’t really know where to start looking. I think that rather than allocating a half day as I did first time around I’ll go for longer this time. Part of my problem is finding things that are nothing to do with the topic of research but interesting nevertheless and before I realise it I’ve wasted an hour.

 

I believe that my case is clear cut, you have previously contributed to that thread (halifax-formerly-bank-one), insofar as the bank have admitted in their first motion to abandon that the default notice is flawed. I opposed their motion to abandon on the grounds that a defective default notice cannot later be corrected by a valid one and consequently the bank could not raise fresh action. As such decree of absolvitor was craved. They responded with a second motion to abandon using Ordinary Cause Rule 23 this time with a motion of dismissal plus the award of expenses to me. I opposed again on the grounds that it the Sheriff was able to grant me decree of absolvitor following the first motion to abandon that he should still be permitted to do so now.

 

The banks solicitors are very anxious to abandon this case, yet always ask in correspondence for my proposals for repayment. I am convinced that unless I am granted absolvitor that they will start the whole debt collection process again. However, only if they were to take this to court could I use the current case as my grounds for defence. All in all this is very debilitating particularly as the Halifax are not my only creditor though they are the only one to have taken the matter to court so far.

 

Hi Coactum

 

I was in a more clear cut position than yourself but it is important to define what you want to achieve. You may wish to negotiate with the bank that they agree to write off the disputed debt, remove the -ve credit reference agancy markers (or elimate any trace as I had them agree to) and award decree in your favour with no costs to either side.

 

I think you are well on the ball so to speak, you are anticiapating their options and moves and yes, the Sheriff will know that you are a party litigant and they are a big bank with unlimited resources at their disposal. Of course it does no harm to keen reminding them of this and their tactics in trying to scuttle you with process.

 

If I had more time I would dig into this more but I am up to my eyes with work at the moment.

 

The best area to brush up on is the OCR process and civil rules, I kept finding new parts of the process that I did not know existed. Hennessey's book is a very basic introduction but a good place to start.

 

Best of luck

[Coactum]

I think we are way beyond any negotiation. I've repeatidly craved absolvitor plus expeses and they have gradually given way to arrive at dismissal plus expenses. I doubt at this late stage that they will be happy to enter into any negotiation and I'm really not sure that this would be in my favour. Right now I've got them in a stranglehold and not too sure that I should release my grip.

 

Can you please clarify OCR which could mean Ordinary Cause Rules but I don't want to draw the wrong conclusions.

[Monty2007]

I think we are way beyond any negotiation. I've repeatidly craved absolvitor plus expeses and they have gradually given way to arrive at dismissal plus expenses. I doubt at this late stage that they will be happy to enter into any negotiation and I'm really not sure that this would be in my favour. Right now I've got them in a stranglehold and not too sure that I should release my grip.

 

Can you please clarify OCR which could mean Ordinary Cause Rules but I don't want to draw the wrong conclusions.

 

If you have them by the Gon*ds, then go for it!

 

OCR = Ordinary Cause Rules

[Bigdebtor]

Coactum

 

When is your case due to be heard?

 

BD

[Coactum]

Hi Bigdebtor, it is this Friday

[Bigdebtor]

Good Luck Coactum - let us know how it goes.

 

Nil illegitimi carborundum!

 

BD

[Coactum]

Despite my username it has been a long time since I studdied latin but I can still tell what that means and I'll try not to!

[Bigdebtor]

Nemo te impune lacessit!