Difference between revisions of "Scottish Step by Step"

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(Guidance notes for small claims from [http://www.scotcourts.gov.uk/ www.scotcourts.gov.uk])
 
(Guidance notes for small claims from [http://www.scotcourts.gov.uk/ www.scotcourts.gov.uk])
  
At the moment (April 2007) we are only recommending that claims UNDER £750 are taken through the courts in Scotland. This keeps the claim in Small Claims. Splitting claims into parts is not recommended as some courts have been refusing to accept second and/or subsequent claims on the same account, as it is a breach of the rules. Summary Cause and Ordinary Cause are available tracks for higher amounts BUT ARE NOT RECOMMENDED for individuals. If you lose in Summary Cause or Ordinary Cause you will be fully liable for the bank’s costs. Although it is most unlikely that the bank would attempt to justify their charges, their atrategy is far more likely to involve trying to have your claim struck out on a technicality,which would still expose you to their costs.
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At the moment (April 2007) we are only recommending that claims UNDER £3000 are taken through the courts in Scotland. This keeps the claim in Small Claims. Splitting claims into parts is not recommended as some courts have been refusing to accept second and/or subsequent claims on the same account, as it is a breach of the rules. Summary Cause and Ordinary Cause are available tracks for higher amounts BUT ARE NOT RECOMMENDED for individuals. If you lose in Summary Cause or Ordinary Cause you will be fully liable for the bank’s costs. Although it is most unlikely that the bank would attempt to justify their charges, their atrategy is far more likely to involve trying to have your claim struck out on a technicality,which would still expose you to their costs.
  
 
<u>Option 2) Claiming through the English Courts System</u><br>
 
<u>Option 2) Claiming through the English Courts System</u><br>

Revision as of 18:54, 3 May 2009

Originally from here: http://www.consumeractiongroup.co.uk/forum/scotland/94302-updated-scottish-procedure.html

Step by Step Guide for Residents of Scotland

Note: Most people claim back charges for the last five years in Scotland. However, there have been a number of claims that have successfully gone back further, and as of April 2007 there are several claims in process using arguments which, if successful, should open the way for claims going back up to twenty years.

1: Get your statements

Send a Subject Access Request under the Data Protection Act 1998 to receive all information held by them about you. Make sure you specidfically ask them to include a list of transactions. Bank Statements per se are not covered by the Data Protection Act, but most banks will send these out to you to comply with your request for a list of transactions.

2: Add up your charges

Use a spreadsheet to detail all the penalty charges the bank have taken from you over the past 5 years.

3: Write and demand that they repay those charges

Send the Preliminary Letter from the templates library to demand the charges back. Make sure you include a copy of your list of charges.

4: Send a Letter before Action (LBA)

If the bank doesn’t refund your charges after the first letter, send a final letter demanding the bank repay your charges, and threatening legal action if they don’t. At this stage you should decide if you are going to take the claim through the Scottish Courts system, the English Courts system, or if you will use the Financial Ombudsman.

Option 1) Claiming through the Scottish Courts System
(Guidance notes for small claims from www.scotcourts.gov.uk)

At the moment (April 2007) we are only recommending that claims UNDER £3000 are taken through the courts in Scotland. This keeps the claim in Small Claims. Splitting claims into parts is not recommended as some courts have been refusing to accept second and/or subsequent claims on the same account, as it is a breach of the rules. Summary Cause and Ordinary Cause are available tracks for higher amounts BUT ARE NOT RECOMMENDED for individuals. If you lose in Summary Cause or Ordinary Cause you will be fully liable for the bank’s costs. Although it is most unlikely that the bank would attempt to justify their charges, their atrategy is far more likely to involve trying to have your claim struck out on a technicality,which would still expose you to their costs.

Option 2) Claiming through the English Courts System
If your charges are over £750, and your bank’s registered office is in England, you can take action through the English Courts system. The limit for small claims in England is £5000. Fast track in England (p to £15k) is also open to litigants in person. You will not be able to use moneyclaimonline.co.uk, because it requires an English address for the claimant. Instead, you will need to fill in an N1 claim form, which is available in the templates library. It is very straightforward to fill in.

Option 3) Claiming through the Financial Ombudsman.
This is suitable for any level of claim, and the Financial Ombudsman Service (FOS) handle your claim to resolution. There is no reason why the FOS will not get a full refund for you, and the timescales can be around 8 - 12 weeks from the complaint. There is a section on the FOS website with details how to proceed.

5: Take Action

Small Claims in the Sheriff Court

Small Claims Guidance Notes (from scotcourt.gov.uk please read before proceeding)

Costs: ( court lodging dues )
claims up to £50 = £7
claims from £50 to £750 = £39

If you are on a low income or benefits you may be exempt from court fees. The form to claim this is here

Risks:
Claims below £200 - no award for expenses to either party
Claims over £200 to £750 - maximum expenses award £75
These may be awarded against you in the unlikely event that you lose, or if you do not comply with directions issued and your claim is struck out. It is very rare for costs to be awarded to either side in a small claims action.

Interest
Interest should be added to each charge using this spreadsheet. The total amount of charges plus interest will form your claim. This means that if your charges amount to £500, and the interest from the date of charge amounts to £200, your total claim will be for £700. The judicial interest which is refered to in the claim form is calculated from the date of service, which means from the date that the claim form is served on the bank.

To raise a small claim two forms need to be completed, which you can get from your local court, 1A and 1B. 1B is the copy served on the Defender and both copies should be completed identically.

Attach a copy of your schedule of charges to each form

COMPLETING THE FORMS

Form 1A - Download in MS WORD HERE - in PDF format HERE
The form is here
It is divided into sections and is quite straightforward to complete


1: Enter name and address of your local sheriffs court
( read notes about Jurisdiction here)


2: Enter your name and address (you are the Pursuer)

3: Enter the name and address of the bank you are suing.
(read notes about Jurisdiction here)
(They are the Defender)

4: This is the value of your claim. Enter the following...

Quote:

The Pursuer claims form the Defender the sum of £ XXX.XX (charges) with interest on that sum at the rate annually from the date of service, together with the expenses of bringing the action.



5: Enter - None - this is for solicitors/representatives names as your claim is in Small Claims this is not required.

5a: Enter - Not Applicable - this is only used for submitting documents electronically

6: Leave - this section will be completed by the Sheriff Officer

7: Enter your particulars of Claim as follows (amend to your own claim);

Quote:

The Pursuer [your name], has held a bank account with the defendent since [DATE] the account number being ******. The Defender deducted from the account various amounts of money in penalty charges during the period [DATE] to [DATE]. These were in respect of 'charges as notified' (levied if a cheque, direct debit or standing order payment was returned because the specific overdraft had been exceeded) The Pursuer contends that these charges were legally unenforceable and therefore the Pursuer is demanding repayment of them. The Defender has refused full payment of these monies due. No admissions are made by the Pursuer as to the incorporation of any term into the contract between the Pursuer and the Defender purporting to entitle the Defender to levy penalty charges. If the Defender is able to establish that the contract did contain these terms, the Pursuer will will contend that these charges are unenforcable by law, being penalty charges designed to penalise the Pursuer for breach of conduct and generate profit for the defendant for the actual loss occuring to the Defender rather than being liquidated damages designed to compensate the defendant for the actual loss occurring to the Defender as a result of the breach. The Pursuer claims from the Defender a sum equivalant to the amount unlawfully debited from the Pursuers account from [DATE] to [DATE]. The sums are in the attached schedule. The contractual provisions that permit the Defender to levy such charges in unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act (1977) and the common law. The Defender has a branch in [PLACE] therefore it is under the jurisdiction of this court. The Pursuer claims £XXX.XX as the sum unlawfully debited.




Form 1B should be completed exactly the same.

Download in MS WORD HERE - in PDF format HERE


6. Take these forms to the Sheriff Courts with your fee and your schedule of charges. 7. The court will send the summons along with the schedule of charges to the bank.

You will be sent back form 1a with the return date and the hearing date added on to the form by the court. This may take up to 2 weeks.

8. Contact your Court the date AFTER the RETURN DATE to ask if the bank has shown intent to defend your claim. Bear in mind that solicitors often leave it to the very last minute on the return date to file their defence. If the bank does file a defence, you will then have to take your form back to the court 2 days BEFORE the hearing date.

9. If the bank do defend, you will have to attend court on the Hearing Date. This hearing will be a PRELIMINARY HEARING. The Sheriff will decide if all reasonable steps have been taken before court to come to an agreement between Defender and Pursuer. If he is satisfied then an PROOF hearing date will be set. This is the hearing for the presentation of evidence, and will be set for about two months after the preliminary hearing.