Opposing a sist (merged threads)

IZZY01

Hi all, here is a copy of the article in the Herald,
Izzy
http://www.theherald.co.uk/news/other/display.var.1684766.0.0.php

Stoomofo

I've been trying to reclaim my bank charges from the Royal Bank Of Scotland. I followed all the template letters through then recieved a letter a few weeks back telling me that a High court case pending had stopped all these cases till it had finished. A assumed this was true having heard Martin on talksport radio. However a friend of mine has told me that as this is an English case, Scottish banks can still be claimed against. Should I continue?
Thanks
Stoo.

Stokey125

Stoomofo wrote: »

I've been trying to reclaim my bank charges from the Royal Bank Of Scotland. I followed all the template letters through then recieved a letter a few weeks back telling me that a High court case pending had stopped all these cases till it had finished. A assumed this was true having heard Martin on talksport radio. However a friend of mine has told me that as this is an English case, Scottish banks can still be claimed against. Should I continue?
Thanks
Stoo.

As the Royal Bank of Scotland has its registered office in Scotland you may wish consider issuing proceedings in Scotland. Your friend is partially correct i that it is not so much that scottish banks are not caught but it depends on whether you issue in England or Scotland. The Scottish courts are not suspending claims on the basis of the test case.

cragdoo

not true

here's my experience hot of the press from my trip to Cupar Sheriff Court in Fife , Scotland yesterday


Well , just out of Cupar Sheriff Court and after a wee bit of to-ing and fro-ing end decision was Sist Granted

Let me try and detail what happened

My case was due to be heard at 11am, arrived at court for 10:20 am suited and blooted . Sat in waiting room reading through my notes. Noticed that another gentleman sitting along from me was reading the Sheriff Pyle notes as well . I had checked the Court list for the day and had noticed that there was another bank action listed for the day . So I assumed he was in the same boat , seeing as he wasn’t dressed like a lawyer (i.e he was wearing ‘jeans , jumper , shirt and tie). So I started talking to him and he had the same time slot allocated. Anyway 10 mins before we were due on court , the banks advocate (dress in all the regalia , white bow tie , waist coat , wig , cloak the lot). To be fair he was a pretty decent guy , who talked to us about the implications of our actions if the Sheriff refuse the sist
Basically he said that if the Sheriff refused the sist the the case would progress to the formal hearing stage . If at this stage the court found in favour of the pursuers (me) then it would be a “Racing certainty” that the banks will request an appeal brought before the Sheriff Principal. He then went on to say that the next step would involve “in all probability” progress as and ordinary action/court. This where things could be tricky , as the pursuer is then liable for a much higher level of expenses that the bank could claim “when they win” , which could end up leaving the pursuers substantially out of pocket. As he mentioned the banks do have ‘deep pockets’. He then said it would be best if you did not contest the sist and then let the OFT effectively handle our case down in England , as he put it “ let them take on the expenses/risk of bringing ordinary action on your behalf”. A point he later made , was I the case was sisted then it will sit earning interest , at a rate higher than any current account with the bank would. At this point I said , “So why have the banks already settled out of court on cases to the tune of £4 million” .His reply was that the banks were mad to pay out in the first place as it has just opened the floodgates for all these small claims. He then re-enforced the earlier points saying this is not as simple or straight forward as saying ‘I’ve been unlawfully overcharged , give me back my money’. He said his impartial advice would be as he said , allow the sists and let the OFT fight the cause. He did ask for a copy of the Sheriff Pyle judgement , as he was aware of this , but had not read it
Then it was time to go into court , the Sheriff asked if I objected to the other gentlemen being heard at the same time, which I didn’t. Unusually this was first time Cupar Sheriff court has heard one of these cases, the sheriff commented that “ most of these never come to hearing and are settled beforehand”. The defence then went onto summarise his case for the sist. At this point the Sheriff thought it would be best to recall the hearing till later in the day to allow us sufficient time to go over the defences case in more detail , so we left court waiting no more than 5-10 mins and were called back in. The banks advocate then went over the points again , actually using the Sheriff Pyle document for reference , a copy of which was handed to the Sheriff for his reading. After reading for 2 -3 mins the sheriff commented that “this kind of action would be more suited to an ordinary court/case”. The banks advocate then re-enforced the point about appeals , and higher expense costs for an ordinary action. Then the sheriff caught him off-guard and asked him if he objected to the amounts being claimed are lodge for holding by the Sheriff Clerk, as this might “put the pursuers at ease as the money was out with the banks system” . The banks advocate said he had not been instructed on such matters but he could assure the court the “bank was good for the money ,despite recent events elsewhere’. A little bit of banter back and forth then followed. The advocate then said , that if this case proceeded to an formal hearing then the onus would be on the pursuers to provide facts and figures to backup their accusations , which he said would be impossible to do so under small claims rules , and that it would need to be an ordinary action to do so , again at great expense to the pursuer , as the banks will charge a substantial amount for copies of all appropriate documents and papers. The advocate kept re-iterating the point the pursuers do not know the ramifications of their actions if these cases are not allowed to sist., he asked the Sheriff to be ‘Pragmatic’ in his decision. The sheriff then asked us for any comments , at which point my fellow ‘pursuer’ spoke a lot which to he honest didn’t have any true relevance to what was going on, he mention the OFT decision to set the credit card limits to £12 , but the Sheriff dismissed this an inappropriate. In the end the Sheriff said “applying a sist to the case would be a win/win situation for the pursuers and if we felt the banks were dragging their heels “ we could apply to lift the sist and take further action. End result Sist granted


To be honest what the banks advocate was saying is a very good point , have people stopped to consider what happens beyond the small claims hearing. On the same hand though , just because the banks have ‘deep pockets’ (the ability to take this all the way through whatever court they need to , doesn’t make what they are doing any less unlawful and unfair. I’m quite annoyed that I didn’t interject more than I did , as there was a lot said that I did not agree with , but felt rather intimidated by the sheriff , who was pleasant enough , but felt he didn’t fully explain points being made and did mumble quite a bit.

All in all a very nerve racking day , which ended a wee bit disappointingly

nickynack

Hi
I am trying to help a friend claim back his charges
I have had a look at the Govan Law Centre website - but I am not that articulate to understand what it means. I Get that there are different laws up here than England, but does this apply to the OFT ruling?
I read something about a "sist" and i dont know what that means!

Anyone got any reliable info as to claiming back charges in Scotland, and whether it is still possible to do this?

For info - his bank is LTSB.

Cheers! :beer:

Nicky

nmcnelis

I work for citizens advice and in the good old days before 27/07 we were very successful in helping people get charges back (over £40k so far).

Since the OFT announcement i've been looking to test the local courts to see if we could get some cases heard before the test case - firstly through the financial hardship argument and more recently on the grounds that the test case has no bearing in Scotland.

Finally got the chance to try this today when a friend from schools case came up in court. As expected the bank applied for a sist to which i opposed. The judge seemed quite clued up on the whole situation and has granted a continuation for 2 weeks to see if there are any further developments.

Does anyone have any suggestions for arguments i could use at the next hearing? I already have Mike Dailly's paper on the subject from bankcharges.info and i've printed a copy of the judgement from Inverness but i'm looking for as much ammunition as possible.

All suggestions welcome...

westie2

Hi
Any advice please !!! My court hearing is Thursday 28/9/07 at Dumfries Sheriff court when Lloyd's TSB is to try sisting my case, my argument why it should not be sisted is, that on the 4/7/07 I received a letter from Lloyd's TSB to say £750 would be paid into my account within 10 working days in full and final settlement of my complaint. To which I phoned at least 6 times to accept this, each time including last Friday they apologised and took all my details once again and said it would be past to there Andover office for payment But the payment is never put in. Now the Clerk at my local sheriff court has told me today that the Sheriff will be sisting all cases, but I can go with the letter I have received and see if it will make any difference, surely did the OFT not say that any promise of payment before the announcement of July 27<SUP>th</SUP> should be honoured by the Banks.

Stokey125

nmcnelis wrote: »

I work for citizens advice and in the good old days before 27/07 we were very successful in helping people get charges back (over £40k so far).

Since the OFT announcement i've been looking to test the local courts to see if we could get some cases heard before the test case - firstly through the financial hardship argument and more recently on the grounds that the test case has no bearing in Scotland.

Finally got the chance to try this today when a friend from schools case came up in court. As expected the bank applied for a sist to which i opposed. The judge seemed quite clued up on the whole situation and has granted a continuation for 2 weeks to see if there are any further developments.

Does anyone have any suggestions for arguments i could use at the next hearing? I already have Mike Dailly's paper on the subject from bankcharges.info and i've printed a copy of the judgement from Inverness but i'm looking for as much ammunition as possible.

All suggestions welcome...

You seem to have all the necessary arguments I know that one of the other Sheriff's has recently granted a sist but this appears to have been for practical rather than legal reasons. Sheriff Pyle who I believe was the Sheriff at Inverness correctly points out that the OFT has no jurisdiction in Scotland. It should also be pointed out if Sheriff Pyle has not that as the OFT decision will be of the High Court and is only persuasive it would be open to the bank if the decision goes against them to argue that the decision should not be followed even though they used it as the basis for the grant of a stay. Out of interest what was the banks argument against Sheriff Pyle's judgment.

nmcnelis

From the sound of things it should be obvious to the sheriff that the bank is obliged to pay you the £750 and the issue of a sist shouldn't be relevant.

However, it's probably worthwhile having a look at bankcharges.info which has a lot of legal arguments about why a sist should not be granted and also has a transcript of the judgement in Inverness where the sheriff ruled against a sist.

I was in court this morning opposing a sist and managed to get a continuation granted using this info. Not a complete success but it looks promising...

nmcnelis

Thanks for that.

The bank submitted 5 reasons why the actions should be sisted:
1) overlap with OFT case
2)risk of different approach across UK if case not sisted
3)not in the interest of justice to have a multiplicity of cases and decisions on same issue
4)administrative burden on the courts
5)waiver granted by FSA will be lost if actions not sisted

Sheriff Pyle in his decision dimsmisses each of these arguments.

You can read the whole judgement at www.govanlc.com/thomson_v_hbos.htm