No stays in Scotland

[Douglas52]

Thanks very much Mike - That's just the information & news we needed- we can leave the politicians alone for a while!

[lammy2203]

Would it be worth appealing against the decision to sist my case or is it not worth it. The sheriff never mentioned the practice note in his decision.

[Douglas52]

Why did he sist your case?

[Bigmac versus]

lammy2203 i dont see why you shouldnt look into it as your sheriff may have also had the opinion that all cases were to be sisted, if this was the case then what you need is a copy of the letter in question which by the way Robert is working on.

[lammy2203]

The Judge granted the sist which i thought he would when after using the arguments from the GLC and the case in inverness he said that he was aware of the inverness case but had a different opinion than the sheriff there.

He also said that whilst he is aware that i am frustrated he wanted to wait untill the OFT case was finalised.

I said that that case was not binding in scottish law and although he agreed he felt that it would filter down to here or words to that effect.

 

He felt that if he did not grant the sist then it would be almost certainly appealed which would waste valuable court time plus more expense for me.

[Michael23]

After successfully opposing a sist at Greenock court 2 weeks ago I returned yesterday and the Sheriff set a date for a hearing. Scheduled to go ahead on 29th January 2008.

 

Its a bit of a wait and god knows what else will happen in this time period but at least I'm getting somewhere.

[lammy2203]

My problem is that the sheriff in the dumbarton region is granting all sists 9something which he practically told me before i had even got up to state my case so i was on a loser to start with) so i dont know what grounds to appeal i would have to try and turn him around

[Bigmac versus]

Been in touch with the claimant whos proof is set for Nov 11th November in Edinburgh.

[teenybopper]

does this mean I can claim at aberdeen sherriff court?do i have to as i live in area or do i claim in area bank has HO? If you're due more than scottish small claim limit of £750 can i split up claims into different dates for same account?cAN ANYONE HELP?

[Bigmac versus]

Hi teenybopper can you start your own thread in that banks forum please, this will help you in the long run.

Basically you cant split claims for same account.

In January the small claims limit goes up to £3000.

Court you file at must have branch in its jurisdiction, file where is convienant for you.

[Douglas52]

Basically you cant split claims for same account.

 

I think this is wrong- its called res judicata and the Govan Law Centre has a post here

Sheriff Principal rejects banks' defence of res judicata | GLC July 2007

 

The Sheriff ruled that each charge was a wrongful act and therefore each was actionable.

But this decision is only applicable in Tayside, Central and Fife!

 

However as Bigmac says if you can wait till January you can go after much more at each sitting.

[Bigmac versus]

Douglas52 there are plenty of posts in here regarding res judicata and this only works if no court appearance was made in an earlier claim for that same account. I have been in the unfortunate position of knowing this first hand and indeed argued each charge was actionable to the sheriff only to be told my claim was incompetant and to return for a costing hearing, this has happened to a few claimants in the early days and thankfully we have learned from it.

Where res judicata would work would be if a claimant had raised a previous action and did not appear in court on that claim as settlement was offered you could then raise a second action for that account.

You cant have multiple claims on one account as this is seen as an abuse of court.

 

Case Law 'Ponterfex v Wood' if i remember rightly.

[goforit]

Deleted

[goforit]

I think this is wrong- its called res judicata and the Govan Law Centre has a post here

Sheriff Principal rejects banks' defence of res judicata | GLC July 2007

 

The Sheriff ruled that each charge was a wrongful act and therefore each was actionable.

But this decision is only applicable in Tayside, Central and Fife!

 

However as Bigmac says if you can wait till January you can go after much more at each sitting.

 

That was actually Sheriff Principal Dunlop's opinion, on appeal.

 

If my knowledge of precedant is correct, that opinion is binding on Sheriff's in that Sheriffdom (i.e. Tayside Central and Fife). However, the opinion can still be cited as a persuasive authority in other Sheriffdoms.

 

I believe the ratio of the decision was that each charge (insofar as wrongful) represented a separate cause of action. Therefore it was theoretically acceptable to raise subsequent individual action in respect of each charge (or, in normal practice, to "divide" the actions into blocks of just under £750.00 and raise them one after another).

 

HTH

[goforit]

I think this is wrong- its called res judicata and the Govan Law Centre has a post here

Sheriff Principal rejects banks' defence of res judicata | GLC July 2007

 

The Sheriff ruled that each charge was a wrongful act and therefore each was actionable.

But this decision is only applicable in Tayside, Central and Fife!

 

However as Bigmac says if you can wait till January you can go after much more at each sitting.

 

Also res judicata is latin for "a matter already judged" (roughly translated, I believe) so that would be the banks defence to your subsequent actions (which has been rejected by Tayside Central and Fife's Sheriff Principal) - not a plea that you would table.

[Douglas52]

Sorry Gents- I'm no expert but I thought it worth posting the GLC link in case it could be used.

[Bigmac versus]

Hi Douglas52 none of us are experts we are all learning and the only way to do this is to discuss what options are available at the time, what i have learned since joining CAG is that methods used in our fight to reclaim what is rightfully ours changes from time to time and we all need to work together to keep this going.

[teenybopper]

thanks for help guys.still very confused about everything.just discovered that i can only claim 5 years back in scotland!don't know whether to start something called a summary action instead of small claim for accounts that are over £750??or just wait till jan to claim small claims court???

[teenybopper]

thanks for help guys.still very confused about everything.just discovered that i can only claim 5 years back in scotland!don't know whether to start something called a summary action instead of small claim for accounts that are over £750??or just wait till jan to claim small claims court???

[texel]

It all depends how desperate you are to have the cash. If you can wait until Jan it will be easier claiming it all in one fell swoop best of luck anyway. I am presently doing a summary action on behalf of my son who can't wait for the cash:D !!!!!

[rrfcfan]

Hi there, sorry to jump on this thread, I am due in Tain Sheriff court on Thursday 09/10 as RBS have made an application for a sist. I am bricking myself as I have never been up in front of a judge before.

 

Obviously I will oppose the sist, but I want to be prepared for any questions that may arise. I understand that the OFT case has no bearing in a Scottish court, but how do I go about putting this forward? Has anyone attended such a hearing and what arguements / discussions were made.

 

I have come so far with claiming by bank charges back, I dont really want to goose it all up at this stage.

 

Any help with this will be most appreciated.

 

[texel]

I have had a sist refused three times by two different judges at Perth Sheriff Court

[texel]

to follow the above I used areport from the Govan Law Centre.

item 2 The general rule established fronm the case of Clydesdale Bank v D&H Cohen, 1943 SC244 is that itm is improper to sist a case pending t5he outcome of a similar one until the pleadings in both actions have been fully adjusted (i.e. finalised and closed). This decision haqs been upheld by the Inner House of the Court of Session and is therefore binding across Scotland. Hope this helps. You can check the Govan Law Centre website. Best of luck for you on the 9th. Don't worry about going before a judge. it is quite easy and they are there to help but not to give you legal advice. Let me know if I can be of further help:)

[Bigmac versus]

The problem is that you are not allowed to use the above ruling and the sheriff will no doubt tell you so. The only joy I had was arguing that my human rights were being infringed due to the timescales of the test case which was preventing me from having a fair trial within a reasonable period of time this was agreed by both the sheriff and the banks sols but the banks sols convinced the sherff that the test case would be resolved within weeks rather than months and so a sist was granted. If I was to return to court I would be arguing this very point and asking for a timescale to be put on the sist so to avoid my human rights being infringed.

 

2p worth

[texel]

The judge did not tell me I could not use the example of the Cohen case. When the sol tried to use the the excuse that the OFT case might be settled I said that the case could be appealed and on to a higher court and eventually on the the european courts which could take years. That could be why the sists were refused. I would not ask for a timescale that would mean I was going along with the sist. I also used the hardship case and so far it worked I am now going to court on the 5th.Nov for what I hope will be the final time The reason it was not settled the last time was my fault not having sent the proof etc. two weeks before the hearing. I will be ready this time!!!