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Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case
Update on the Govan Law site on attempts to keep Scottish bank charge cases in the small claims court.
Govan Law Centre
Scotland’s Cabinet Secretary for Justice has refused to review the problems thrown up in Scottish bank charge cases, and denied there is any problem in Scots being able to take their bank to court to try and recover unfair overdraft charges. Recently, Scots using the accessible and consumer friendly small claims system have had their claims remitted to the ordinary sheriff court, at the request of UK banks, where legal expenses are potentially unlimited.
Following access to justice problems identified in the case of Walls v. Santander UK plc the Shadow Cabinet Secretary for Justice, Richard Baker MSP, raised concerns over access to justice in such cases with Kenny MacAskill MSP. In a written response, Mr MacAskill said ‘I do not accept the argument that ordinary citizens in Scotland are denied basic rights to access justice’ and refuted any suggestion that there was a problem for Scots trying to recover unfair bank charges through the small claims court.
Mr MacAskill endorsed the sheriff’s conclusion in Walls v. Santander, that Scotland’s current civil court structure and legal aid system provided ‘sufficient’ access to justice from a human rights perspective. Mrs Walls has since lodged an application with the European Court of Human Rights in Strasbourg. Mr MacAskill also stated that he was unable to review the small claims rules due to his ongoing consideration of Lord Gill’s Scottish Civil Court Review.
GLC's Mike Dailly said: “The Justice Secretary’s denial is a mantra which makes no sense. It displays an arrogance and failure to grasp some fundamental facts and principles. UK banks are successfully moving small claim bank charge cases to the ordinary sheriff court, and Scottish consumers are faced with dropping their claims for fear of expenses, or trying to get legal aid if they can – and even then, possibly having to pay a contribution to the legal aid board bigger than their claim”.
“What is particularly puzzling is that Mr. MacAskill refuses to accept any concern whatsoever about access to justice, but our client (Mrs Walls) would have had to drop her claim, had we not been able to get her case sisted pending an application to the European Court of Human Rights".
"The whole point of the small claims court is to provide access to justice for citizens without fear of cost: a remedy which is proportionate in cost to the level of the monetary dispute. But that fair principle of proportionality is being knocked out of the ball park by the current practice of UK banks in bank charge litigation. We don’t have class actions in Scotland, so individual consumers are finding it impractical or impossible to challenge bank charges in court”.
“Kenny MacAskill could easily fix this problem by changing the rules on expenses. We’ve suggested the cap on small claims expenses could travel with the case where it is remitted to the ordinary sheriff court. However, the Justice Secretary says he cannot even look at this issue because he is considering the Scottish Civil Courts Review. That is a non-excuse, which sends a very clear message to the 1 in 5 Scots hit with overdraft charges: the Justice Secretary isn’t interested”.
Update on the Govan Law site on attempts to keep Scottish bank charge cases in the small claims court.
Govan Law Centre
Scotland’s Cabinet Secretary for Justice has refused to review the problems thrown up in Scottish bank charge cases, and denied there is any problem in Scots being able to take their bank to court to try and recover unfair overdraft charges. Recently, Scots using the accessible and consumer friendly small claims system have had their claims remitted to the ordinary sheriff court, at the request of UK banks, where legal expenses are potentially unlimited.
Following access to justice problems identified in the case of Walls v. Santander UK plc the Shadow Cabinet Secretary for Justice, Richard Baker MSP, raised concerns over access to justice in such cases with Kenny MacAskill MSP. In a written response, Mr MacAskill said ‘I do not accept the argument that ordinary citizens in Scotland are denied basic rights to access justice’ and refuted any suggestion that there was a problem for Scots trying to recover unfair bank charges through the small claims court.
Mr MacAskill endorsed the sheriff’s conclusion in Walls v. Santander, that Scotland’s current civil court structure and legal aid system provided ‘sufficient’ access to justice from a human rights perspective. Mrs Walls has since lodged an application with the European Court of Human Rights in Strasbourg. Mr MacAskill also stated that he was unable to review the small claims rules due to his ongoing consideration of Lord Gill’s Scottish Civil Court Review.
GLC's Mike Dailly said: “The Justice Secretary’s denial is a mantra which makes no sense. It displays an arrogance and failure to grasp some fundamental facts and principles. UK banks are successfully moving small claim bank charge cases to the ordinary sheriff court, and Scottish consumers are faced with dropping their claims for fear of expenses, or trying to get legal aid if they can – and even then, possibly having to pay a contribution to the legal aid board bigger than their claim”.
“What is particularly puzzling is that Mr. MacAskill refuses to accept any concern whatsoever about access to justice, but our client (Mrs Walls) would have had to drop her claim, had we not been able to get her case sisted pending an application to the European Court of Human Rights".
"The whole point of the small claims court is to provide access to justice for citizens without fear of cost: a remedy which is proportionate in cost to the level of the monetary dispute. But that fair principle of proportionality is being knocked out of the ball park by the current practice of UK banks in bank charge litigation. We don’t have class actions in Scotland, so individual consumers are finding it impractical or impossible to challenge bank charges in court”.
“Kenny MacAskill could easily fix this problem by changing the rules on expenses. We’ve suggested the cap on small claims expenses could travel with the case where it is remitted to the ordinary sheriff court. However, the Justice Secretary says he cannot even look at this issue because he is considering the Scottish Civil Courts Review. That is a non-excuse, which sends a very clear message to the 1 in 5 Scots hit with overdraft charges: the Justice Secretary isn’t interested”.
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