Scots Law - Small Claims

angrybankcustomer

Hi
hopefully, its okay to post a new thread as I cant find much relating to Scots Law.
I am due to go to court on the 14th January and have had no word from either the court or the bank. The bank have until 7th January to defend the action (which I assume they will do)
How to I proceed? Any advice welcome

many thanks

Premier_2

Under Scottish Law, the pursuer is responsible to find out if the defender has made a response.
You should do this asap after the return date by contacting the court.

If there is no response, you should let the court know what order you wish it to make using form 11
You must do this at least 2 days before the hearing date.

angrybankcustomer

thanks for this.

What if the bank do decide to defend?

esmerellda

angrybankcustomer wrote: »

Hi
hopefully, its okay to post a new thread as I cant find much relating to Scots Law.
I am due to go to court on the 14th January and have had no word from either the court or the bank. The bank have until 7th January to defend the action (which I assume they will do)
How to I proceed? Any advice welcome

many thanks

Can you post up your statement of claim details please.
Also when you receive the defence a copy of that would be a good idea.

Premier_2

angrybankcustomer wrote: »

thanks for this.

What if the bank do decide to defend?

You should ask the court for a copy of their defence.

Then, if you are still proceeding, you need to go to court and argue your case in front of the judge.

angrybankcustomer

esmerellda wrote: »

Can you post up your statement of claim details please.
Also when you receive the defence a copy of that would be a good idea.

thanks, will do this after 7th

kind regards

angrybankcustomer

esmerellda wrote: »

Can you post up your statement of claim details please.
Also when you receive the defence a copy of that would be a good idea.

Hi

statement of details below. Bank has asked Court to dismiss

The defenders state that charges are necessary to cover their costs. The defenders are called upon to lodge in process a statement indicating how much annual pre-tax profit is generated from applying bank charges to current accounts, identifying the income generated from applying charges to current accounts as against the expenditure incurred in processing unauthorised overdrafts. Their failure to do so will be founded upon. The amount of charges applied does not represent the defender’s actual costs in providing unauthorised lending on the pursuer’s current account under explanation that a substantial proportion of the defenders’ pre-tax profits are believed to be earned from bank charges.

4. The defenders charges represent a contractual penalty or fine and as such are irrecoverable at Scots common law. In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses which flowed from a breach of contract. The defenders charges are not liquidated losses and therefore the pursuer is entitled to be reimbursed in the sum craved.

5. Separatim, the defenders charges represent an unfair penalty charge in terms of the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) (the ‘UTCC’). The pursuer’s contract falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) as the pursuer is a consumer. The defenders charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations: ‘Indicative and non-exhaustive list of terms which may be regarded as unfair
1. Terms which have the object of effect of-
(e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.
Reference is made to the following three cases from the Office of Fair Trading’s Unfair Contract Terms Bulletin 21 (July to September 2002), issued in May 2003:

OFT case 15 – Kids of Wilmslow Ltd.
Clause 7 of the company provided for the supplier to charge interest on unpaid fees at an excessive rate above the bank base rate. Also unclear as to how the interest would be charged. The OFT amended the clause so interest was charged on unpaid fees at 3% per annum above the bank base rate. Further, an administration fee of £10 per letter sent concerning unpaid fees was deleted.

OFT case 18 – Legal & General Franchising t/a Parker Estate Agents.
A commission clause had the potential to allow the estate agent to charge a penalty fee for late payments. The OFT revised the clause to reflect the company’s practice of charging 8% per annum or the current rate of county court interest on late payments.

OFT case 4 – Dampcure-Woodcure/30Ltd.
Clause ‘W’ had the potential to impose a high financial penalty of payment was not received within seven days of the date of invoice. The OFT revised same to make clear that interest will be charged at 4% above a high street bank rate per annum if payment not received within 7 days of the date of invoice.
Accordingly, the defenders are fairly compensated for unauthorised lending by the imposition of their unauthorised overdraft interest rate. The imposition of further charges is unfair in terms of the UTCC. Reference is made to guidance issued by the OFT on 26 July 2005, which stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. The court is asked to declare the imposition of the defender’s charges as unfair and irrecoverable in terms of the UTTC.

grateful for any advice

esmerellda

Okay - you will need to amend.

Can you type up what the bank has returned to the court (ie the application to dismiss the claim) please.

It will be dismissed based on the statement of claim you have entered so we need to get in relatively quick.

angrybankcustomer

esmerellda wrote: »

Okay - you will need to amend.

Can you type up what the bank has returned to the court (ie the application to dismiss the claim) please.

It will be dismissed based on the statement of claim you have entered so we need to get in relatively quick.

hi
here is banks response

"the defenders respectfully craves the Court to dismiss the present action, the legal issues,arising from this action having been determined in the defenders favour by the decision of the Supreme Court handed down on 25 November 2009 in the case of the OFT against Abbey National plc (and others)"

esmerellda

Okay, we need to go back in with an amended statement of claim - not quite sure how you do that in scotland tho so if you don't either I'll look it up, then we need to get a new statement of claim orgainised, it will be much simpler if you come onto LB ( www.legalbeagles.info ) to do that (from my point of view) as we're trying to keep the amended claims that are urgent (ie need doing before the MSE templates are sorted) out of public eye a bit.

If you come over send me a PM ( Amethyst ) and I'll give you access so we can work out the next step between us. Otherwise drop me a pm here and will do the discussing with the others over there and post thoughts back here.

esmerellda

hearing is tmw, really need to make sure you are au fait with the POC we were working on - or let me know if you have given up PLEASE