Urgent Attention Please Read - Claims in Scotland

[mel5]

Clydesdale Bank

 

Please add Stirling court to those who are not accepting second claims

 

Mel

[caro]

Thanks for the info Mel.

 

Can we try and keep this thread dedicated to this type of information please, maybe just putting a link to your own thread if you are affected by this and want input for your own claim.

[stevokenevo]

here here

[lornac]

I think I'm more confussed than ever. I have just put stamp on my first demand for repayment of £1187 to RBS I live in Scotland, should I send it then drop to £750? or split it now before I send first request? Is RBS as hostile to repay as CB seem to be. Good luck to us all

[Bigmac versus]

Hi lornac could you please stick to your own thread so we can give advice there and so if you ask a question later people can see the history, not wanting to seem harsh but this will help you in the future.

When you request from the bank the charges that have been levied against your account you request all such charges to that date, in reference to the £750 this is done at court stages only and as your claim is under £1500 then i would suggest looking at summary cause route.

[goforit]

Hiya All

 

Still hanging around..following this thread.. had decided to go through FOS but havent recieved a Final Reply from Lloyds..so cant just yet..

 

Thought I might go through English courts.. decided to check over t&cs and found this....

 

"English law applies to this contract unless your account is with a branch in Scotland, in which case Scots law will apply. This contract is in English. If a dispute cannot be resolved by our internal complaints procedure or by the Financial Ombudsman Service, the English courts will have jurisdiction to hear a dispute unless your account is opened with a branch in Scotland, in which case Scottish courts will have jurisdiction"

 

Now What??

 

tbell:-?

OK guys.

 

The discipline that deals with case involving a "foreign" element can be confusing and is referred to as Conflict of Laws. The situation is further complicated since, although the English legal system is "foreign" to the Scottish system, it has different rules concerning conflict of laws to actions which are entirely "British" (i.e. no "element" of the case are non-UK) than those which have both a "British" and European/Member State element. Anything, that has an element relating to a country not a signatory to the Brussells Convention (and similar treaties) is not standardized.

 

Put simply Britain has one set of rules regarding the Conflict of Laws for cases entirely of a "British" naure, another for "EU" cases with a "British" element and anything else isn't particularly well standardised.

 

Note: As long as you understand that where an entirely British case involves "elements" from more than one UK jurisdiction then a special set of Conflict of Laws rules govern the action. The rest has just been added for the sake of completeness

 

It is imperative to understand that "law" and "jurisdiction" are two entirely distinct elements although they often do overlap. This is imperative to understand. Additionally, you must understand that a court can accept jurisdiction concerning a case and then proceed to characterise the claim and then decide that the laws of another jurisdiction should be applied to the case. Indeed, it can often occur that more than one different country's law can be applied in relation to different parts of the case (i.e. in a divorce case one country's marriage law might be applied, another used for parentage, another used for custody, another used for damages, contract, etc).

 

Without a basic understanding of the Conflict of Laws I suggest that people don't try and get too smart with their cases (especially in anything above small claim in either jurisdiction). It is also imperative that you understand that their is a difference between the relevant law to be applied and the courts with jurisdiction over a case.

 

See:

Jonathon Mitchell QC's website

en.wikipedia.org/wiki/Conflict of Laws - for info only it isn't gospel in the UK, has a USA perspective and isn't necessarily written by lawyers. Therefore, don't rely upon it, just use it for background info.

[Zeusie67]

I've been reading a few of the posts on here (and other similar forums) and it's clear there is a degree of confusion surrounding the issue of how to avoid being in the postion of having to pay the Bank's legal costs should an action to reclaim charges fail (OK, this hasn't happened often, but the possibility of it is still real and can be quite off putting).

 

Obviously the best course of action is to lodge a small claims action (under £750) and in order to do this people have split larger claims in to amounts under the £750 and making seperate claims. This course of action was initially successful, although now seems to becoming unstuck in certain Sheriff Courts and certain banks are aware of this.

 

In view of this i think it is important to point out that, IMO, where a claim is made and an element of interest is claimed at the outset (not judical interest), such as contractual interest from the date of the application of charge, the interest amount should not be included as applying when working out whether or not the total amount is under the £750 small claim threshold.

 

For small claims: Small Claims (Scotland) Order 1988

 

"The Lord Advocate, in exercise of the powers conferred on him by sections 35(2) and 36B(1) and (2) of the Sheriff Courts (Scotland) Act 1971, and of all other powers enabling him in that behalf, hereby makes the following Order, a draft of which has been laid before and approved by resolution of each House of Parliament:

• This Order may be cited as the Small Claims (Scotland) Order 1988 and shall come into force on 30th November 1988.

• The form of summary cause process, to be known as a “small claim”, shall be used for the purposes of summary cause proceedings of one or other of the following descriptions, namely –

(a)actions for payment of money not exceeding £750 in amount (exclusive of interest and expenses), other than actions in respect of aliment and interim aliment and actions of defamation;

(b)actions ad factum praestandum and actions for the recovery of possession of moveable property where in any such action ad factum praestandum or for recovery there is included, as an alternative to the claim, a claim for payment of a sum not exceeding £750 (exclusive of interest and expenses).

• For the purpose of article 2, actions ad factum praestandum include actions for delivery and actions for implement but do not include actions for count, reckoning and payment."

IMO this Order means that as long as the charges which you are reclaiming are themselves below the £750 figure, this will qualify as a small claim. Any amount relative to contractual interest (which in some cases exceed the actual charges themselves) can still be claimed on the small claim without the need to apply under a Summary Cause or Ordinary Cause.

 

I am aware of at least one small claim (detailed on another forum) which proceeded to (a Sheriff) Court which was for £730 of charges and nearly £2000 of interest. The matter was settled in full by the Bank and the person reserved the right to raise a second and subsequent action for other outstanding unlawful charges applied to the account (although whether this second claim falls foul of the issues discussed earlier in this thread, remains to be seen.)

 

The same applies for meeting the £1500 threshold for Summary Cause.

 

For Summary Cause: Sheriff Courts (Scotland) Act 1971

 

"Summary causes

 

35. – (1) The definition of “summary cause” contained in paragraph (i) of section 3 of the Sheriff Courts (Scotland) Act 1907 shall cease to have effect, and for the purposes of the procedure and practice in civil proceedings in the sheriff court there shall be a form of process, to be known as a “summary cause”, which shall be used for the purposes of all civil proceedings brought in that court, being proceedings of one or other of the following descriptions, namely –

1 (a) actions for payment of money not exceeding £1,500 in amount (exclusive of interest and expenses);"

 

 

I hope this helps.

 

Incidentally, those of you who have posted indicating that you have had second claims struck out by the Court, was this because you had initially claimed (in your prelim letter and LBA) for the WHOLE amount, but split the claim at the court action stage, or had you actually split the amounts claimed for at the prelim/LBA stage as well?

[lol114]

Hi

 

Just a question on your last comment there. Would you not be able to break your prelim letters and LBA's down to years ( 2001, 2002, etc) and go though the courts that way , if larger sums are involved that is, as you are only claiming for that period in time. That would stop us having to consider Ordinary Action. Also at no point are we ever accepting conditions from the bank that we will not claim them again and we are only accepting payment from that particluar period we have asked for. I obviously do not know the law, really only what I read on this site. but it has been on my mind and just thought I would ask.

 

thank you

[RedDeath]

Zeusie67,

Thanks for the post, however there is one point that still evades me. What if the claim (without the interest) is more than £1500 pounds? There must be an option to take someone to court, if so, could anyone please tell me?

My claim is 6.5k in charges (an additional 5.5 in interest at 29.8%) so my total claim is 12k. Without going into an arguement about my interest rate (follow my link below to see how that is going), what does someone do if the charge is more than £1500. The Scottish courts are pathetic if this is the case, my pc is worth more than that, what if I had a dispute with the supplier?

Surely there must be a way, someone please please tell me.

 

I'm not wanting to split the claim in 4 batches. It is a waste of the court's time and I am sure they won't appreciate it.

 

Thanks

[Bigmac versus]

There is an option as advised earlier RedDeath it is Ordinary Action, which would allow you to claim over £1500, please be aware of the implications though of going down this route.

 

lol114 : the route of splitting claims into years was what i had done and as you know it was thrown out.

 

Zeusie67: "Incidentally, those of you who have posted indicating that you have had second claims struck out by the Court, was this because you had initially claimed (in your prelim letter and LBA) for the WHOLE amount, but split the claim at the court action stage, or had you actually split the amounts claimed for at the prelim/LBA stage as well?"

 

This was as the judge said due to the claimant KNOWING or SHOULD HAVE KNOWN there were other charges to be claimed at the time of the first action raised.

[RedDeath]

Thanks bigmac,

I have heard some contradictory information regarding the whole scottish process its nice to have this confirmed. Could you highlight the main features of the Ordinary Action process, orpost a link for it if you have it?

 

I see your as bad as me, friday night and surfing the forum. I am spending it writing letters to Capital One and LTSB, Capital One are nearly there though, will definetly deserve a beer or two once it does.

 

Thanks again!

[Bigmac versus]

Hi RedDeath have a look in here, has some information that may assist you in your claim.

 

Unfair UK Bank Charges | legal help from Govan Law Centre, Glasgow, UK

[feduptony]

Hi, Red Death Et Al

Thanks for this information

 

i sent my 14 day LBA to LTSB last tuesday and am in the process(now witheld pending comments from this forum ) of preparing claims for 2 summary cause actions in Edinburgh sheriff court.

Total claim is for £2,400.00 primary sum.

From what you are saying the only sure way to recover the charges in excess of £1,500 between defined dates is via an ordinary action for the full amount.

What is the problem with doing this?

So we need a soliciter to front the claim, but thats all he has to do, he will take his istructions from you and me.He doesnt need to be skilled in the process( I bet not many are.)

The claim is for unfair bank charges, legally reclaimable.This is our money and we should not be beaten by court technicalities.

If we are sure of winning going the small claims /summary claims route, why so unsure when we need to involve a soliciter?

surely costs would be awarded to the winner in any event and these costs would include solicititers fees.

These are my initial angry thoughts. I agree with the guy who said it looks like the cheiftain O' the establishment race is now in cahoots with the cheiftain O' the banking race and to our doom unless we do something.

I shall post your concerns on the web site (penalty charges forum)I have taken advice from to date, and hope we can get a collective opinion on the way forward.

Thanks,

Tony

[RedDeath]

Hi feduptony,

I am not really sure what the correct process is. Still trying to suss it all out. Do we really need a solicitor to fron the claim? I am confident that I can stand in a court of law and defend my case (with a lot more preparation mind you).

What would the next step be to actually raise court proceedings?

 

Bigmac, thanks for the previous link however this only addresses claims up to £1500.

 

Anyone?

[RedDeath]

Just an update:

Tried to scotscourt site and that was no good, so the closest info on ordinary actions I found was through the shelter site.

 

Shelter: Ordinary cause actions

 

Also, this link gives a good representation of the process.

 

http://scotland.shelter.org.uk/files/seealsodocs/23073/AO%20Flowchart%20for%20the%20court%20system%20in%20Scotland%2Epdf

 

So it seems you can raise an ordinary action through your Sherriff Court, however this may then be referred to a Court of Session so there is a strong chance that we will need legal reppresentation.

 

This does put a different spin on things.

[caro]

After much deliberating and research I think the concensus among the CAG team at the moment is for claims over 750.00 in Scotland to be claimed through the Financial Ombudsman.

[Zeusie67]

After much deliberating and research I think the concensus among the CAG team at the moment is for claims over 750.00 in Scotland to be claimed through the Financial Ombudsman.

 

Is it possible to claim for interest from the Banks via the FOS?

[caro]

I believe so, yes.

[Zeusie67]

I believe so, yes.

 

Thanks Caro.

 

I called the FOS today and the chap on the phone said that you can ask for interest on the charges, (he never indicated at what rate, so i suppose it's as much as you feel you can justify), but there are no guarantees that you will get it back from the bank. He confirmed that the FOS is happy to consider request for repayment of interest on top of the charges.

[Barobalti]

Claims over £750 via FOS -- that's the route I'll go down; however, it doesn't exactly inspire me with confidence because I've always found the FOS pretty gutless and pro-institutional (anti-consumer?) in my previous dealings with them.

 

Then again, maybe they've just never said what I wanted to hear

 

I can't help wondering just when they are going to roll over and side with the banks.

[caro]

I think the fact that the banks are having to pay on the back of complaints to the FOS speaks volumes myself, although time will tell.

 

This link to the FOS site should help answer questions.

 

FAQs complaints about bank charges

[j1mgg]

Here is my situation Lloyds TSB

26/02/07 sent letter detailing charges(£1820)

12/03/07 got standard reply saying they are in the tc's

13/03/07 sent letter advising of possible court action

at the end of this week it will be past 14 days and no reply.

 

So we now have to call the FSO, does anyone know what this entails as i was right at the last hurdle and i have not had an offer just the letter stating t&c's

 

Please help as i really need this money to get back on track

 

I live in Edinburgh and do not have an english address i can use

 

Thanks

[stevokenevo]

You could use a summary cause for £1500 + interest, then a small claim for the balance. As yet there is no evidence of LTSB challenging 2 claims, and as you are for not much over it i'd go for it, i made two claims against them myself.

[caro]

Edinburgh court will not accept second claims though.

[j1mgg]

Thanks for the replies.

 

I have called the FSO and the guy said he will send me a pack and also he will send another letter to lloyds to try and get something from them as i have already contacted lloyds previously.

 

Is there a link now for FSO claims?