AMEX charge cards - do we have a defence

[Guest]

Re: AMEX charge cards - do we have a defence

Harbourboy

Did the writ look anything like the blank small claims summons I posted up in post 25?

if it didn't then it was NOT a summons as that is the only style of summons you get from a scottish court

Hi Gorang.

Can you tell me what the limit is for small claims in the scotts court?

Peter

[Gorang]

Re: AMEX charge cards - do we have a defence

Hi Gorang.

Can you tell me what the limit is for small claims in the scotts court?

Peter

Hi Peter

small claims now is Ł0 to Ł3k (used to be Ł0 to Ł750)
summary cause is now Ł3k to Ł5k (used to be Ł750 to Ł1500)
ordinary cause is now anything over Ł5k (used to be Ł1500 to no upper limit)

Also
small claim and summary cause you can do easily your self

but the ordinary cause

you can do it yourself BUT you have to SHOW the sheriff that you are CAPABLE of the complex arguments, and if you fail on that then the sheriff WILL order you to get a solicitor before the case will proceed

If we had a case for charges that was over the Ł1500 then we used to split the claim up and claim the oldest charges first, wait until that case was concluded before we filed again for the next oldest charges

hope that helps peter

[Guest]

Re: AMEX charge cards - do we have a defence

Hi Peter

small claims now is Ł0 to Ł3k (used to be Ł0 to Ł750)
summary cause is now Ł3k to Ł5k (used to be Ł750 to Ł1500)
ordinary cause is now anything over Ł5k (used to be Ł1500 to no upper limit)

Also
small claim and summary cause you can do easily your self

but the ordinary cause

you can do it yourself BUT you have to SHOW the sheriff that you are CAPABLE of the complex arguments, and if you fail on that then the sheriff WILL order you to get a solicitor before the case will proceed

If we had a case for charges that was over the Ł1500 then we used to split the claim up and claim the oldest charges first, wait until that case was concluded before we filed again for the next oldest charges

hope that helps peter

Hi

Thanks for that just being lazy i know, but could i ask if the implications are the same regarding costs, CPR disclosures etc.

Peter

[Gorang]

Re: AMEX charge cards - do we have a defence

Hi

Thanks for that just being lazy i know, but could i ask if the implications are the same regarding costs, CPR disclosures etc.

Peter

Hi peter

Costs don't usually come into a small claim, they are applied but not stupid money
(usually only if the banks send up a QC to defend a small claim is when stupid costs come into it)
they can come into a sumary cause
they defo do come into a ordinary cause

No CPR rules up here which is a pain in the butt
Disclosure basically just comes in when you ask for it in either your defence, statement of claim or at a hearing as they judge will want proof of EVERYTHING you say

one good thing is the guides are far far easier to follow for scottish claims than the CPR's for english, and the guides are usually not bent round in a circle like the CPR's can be at times

it has got bit more complicated since they changed the value of the claims, but not much and it is still far easier to follow than the CPR

Now we have small claims for
pre jan 08,
after jan 08,
after april 08 and
after dec 09

same applies to summary and ordinary cause claims (in fact if memory serves me right I think there are only 2 amendments for the ordinary cause not 3)

eg is attached below
4 pdf guides for whole small claim (start to finish) after dec 09 (latest amendment) and as you will see they are not long guides

[Guest]

Re: AMEX charge cards - do we have a defence

Hi peter

Costs don't usually come into a small claim, they are applied but not stupid money
(usually only if the banks send up a QC to defend a small claim is when stupid costs come into it)
they can come into a sumary cause
they defo do come into a ordinary cause

No CPR rules up here which is a pain in the butt
Disclosure basically just comes in when you ask for it in either your defence, statement of claim or at a hearing as they judge will want proof of EVERYTHING you say

one good thing is the guides are far far easier to follow for scottish claims than the CPR's for english, and the guides are usually not bent round in a circle like the CPR's can be at times

it has got bit more complicated since they changed the value of the claims, but not much and it is still far easier to follow than the CPR

Now we have small claims for
pre jan 08,
after jan 08,
after april 08 and
after dec 09

same applies to summary and ordinary cause claims (in fact if memory serves me right I think there are only 2 amendments for the ordinary cause not 3)

eg is attached below
4 pdf guides for whole small claim (start to finish) after dec 09 (latest amendment) and as you will see they are not long guides

HI Gordon
Sounds llike quite a sensible system to me, I heard that the creditor must attach the agreement to the claim which makes sence, so If the defence questioned the validity of the DN, the creditor would have to pick it up from the notification on the reply and have proof of its conformity to the cca at the hearing? is there no way that the defence can request to see a copy to verify his allegaitions prior to that, other thatn SAR of course.
Peter

[Gorang]

Re: AMEX charge cards - do we have a defence

Any documents referred to in a statement of claim HAS to be produced and supplied to the otherside BEFORE the intermediate diet (1st hearing) which is only for the sheriff to sus out if both parties are ready to go to trial

So if for eg. the bank does not mention the DN notice in their claim then it can be requested via SAR or in the defence

If they DON't produce it then the defence has to show they have asked for it and NOT been supplied with it

if there is documents that are not being supplied by either side then the sheriff will order them to be supplied and shared by a certain date, and will also set a date about 2 weeks after that (usually) for a 2nd intermediate to again then determine if both parties are ready to go to trial

So in answer to your question
no there is NOT another way to get the DN's up here except either a SAR or the sheriff

To give you a quick insite as to what will happen if they are NOT playing ball

When we were in court a lot for charges this is what the banks got up to up here

At the 1st intermediate diet, before the sheriff ordered or said anything, the banks used to ask for a continuance due to, anything at all that they could come up with to buy time, and the usual favorite was send in a young solicitor to say this and ONLY this

"sorry ma lord but I have ony this 1 bit of paper as I only got this case this morning so I have NO evidence of ANYTHING, so can I have a continuance please to catch up with the case" (or words to that affect)

so the sheriff then just set the date for the next intermediate diet, IF he allowed them the continuance.

The banks were normally getting away with asking for 2 to 3 contunances max before the sheriff said enough was enough, now this is going to be the trial date

But of course just before the trial date the banks just paid up



Me reading between the lines here (so could be wayyyyyy off track)

If the DN is valid, then they will throw it at you, as soon as you give them a SAR

if its not, then they will apply the above tactic's, and if they are the pursuer, then they are playing a dangerous game with a sheriff, and they will prob dismiss the claim before costs are awarded against them

If you think the latter is happening or going to happen then give me a shout as I think I have sumit that has a good chance of stopping it before it happens, but it needs to be applied early on

[Guest]

Re: AMEX charge cards - do we have a defence

Any documents referred to in a statement of claim HAS to be produced and supplied to the otherside BEFORE the intermediate diet (1st hearing) which is only for the sheriff to sus out if both parties are ready to go to trial

So if for eg. the bank does not mention the DN notice in their claim then it can be requested via SAR or in the defence

If they DON't produce it then the defence has to show they have asked for it and NOT been supplied with it

if there is documents that are not being supplied by either side then the sheriff will order them to be supplied and shared by a certain date, and will also set a date about 2 weeks after that (usually) for a 2nd intermediate to again then determine if both parties are ready to go to trial

So in answer to your question
no there is NOT another way to get the DN's up here except either a SAR or the sheriff

To give you a quick insite as to what will happen if they are NOT playing ball

When we were in court a lot for charges this is what the banks got up to up here

At the 1st intermediate diet, before the sheriff ordered or said anything, the banks used to ask for a continuance due to, anything at all that they could come up with to buy time, and the usual favorite was send in a young solicitor to say this and ONLY this

"sorry ma lord but I have ony this 1 bit of paper as I only got this case this morning so I have NO evidence of ANYTHING, so can I have a continuance please to catch up with the case" (or words to that affect)

so the sheriff then just set the date for the next intermediate diet, IF he allowed them the continuance.

The banks were normally getting away with asking for 2 to 3 contunances max before the sheriff said enough was enough, now this is going to be the trial date

But of course just before the trial date the banks just paid up



Me reading between the lines here (so could be wayyyyyy off track)

If the DN is valid, then they will throw it at you, as soon as you give them a SAR

if its not, then they will apply the above tactic's, and if they are the pursuer, then they are playing a dangerous game with a sheriff, and they will prob dismiss the claim before costs are awarded against them

If you think the latter is happening or going to happen then give me a shout as I think I have sumit that has a good chance of stopping it before it happens, but it needs to be applied early on

Hi Gordon many thanks for this extremely informative for me and hopefuly the OP.

Just a general point, you obvioulsy have a deal of experiance on cases up there.
Reading around trying to get a handle on the system, i get the impression that the courts there have a, shall we say more pragmatic view of the legislation, please correct me if i am wrong. I have not seen much case law but i have seen none where a technical breach such as a failure to correspond to the finer points of a default notice has been succesful. I know that the law is the law but at the end of the day it is up to the man in the big chair. Just an impression.

Peter

[Gorang]

Re: AMEX charge cards - do we have a defence

i get the impression that the courts there have a, shall we say more pragmatic view of the legislation, please correct me if i am wrong. I have not seen much case law but i have seen none where a technical breach such as a failure to correspond to the finer points of a default notice has been succesful.

Things does seem to be more black and white with the courts here and most of the sheriff's views are

they are not there to decide who is telling the truth or not, they are there to determine the law, (if that makes sense)

There is not a lot of case law here as most things financial have been decided via small claims or sumary cause claims which DON'T set a percident, only the ordinay cause claims sets precedents up here

up here we have less levels of claims, and its only the high level claims that sets precident, therefor less scottish case law that can be used

But in saying that I also use english case law up here too, and so far have seemed to get away with it lol

I know that the law is the law but at the end of the day it is up to the man in the big chair.

Thats the good thing up here, as the sheriffs tend to stick to the law by the letter, instead of making up their own minds (as it were) because they are NOT that high up the levels of sheriff or judge


I must admit tho since the test case I have not seen or heard about a lot of scottish cases going through the courts, unlike england,

but i suppose the biggest difference is the POC as the financial orgs up here would not get away with sending in 4 lines for a POC, like they do with northampton bulk centre,

the sheriffs here would NOT accept that without the proof to back up what they are saying in the POC



PS sorry for hijacking your thread here Harbourboy

[Guest]

Re: AMEX charge cards - do we have a defence

Things does seem to be more black and white with the courts here and most of the sheriff's views are

they are not there to decide who is telling the truth or not, they are there to determine the law, (if that makes sense)

There is not a lot of case law here as most things financial have been decided via small claims or sumary cause claims which DON'T set a percident, only the ordinay cause claims sets precedents up here

up here we have less levels of claims, and its only the high level claims that sets precident, therefor less scottish case law that can be used

But in saying that I also use english case law up here too, and so far have seemed to get away with it lol

Thats the good thing up here, as the sheriffs tend to stick to the law by the letter, instead of making up their own minds (as it were) because they are NOT that high up the levels of sheriff or judge


I must admit tho since the test case I have not seen or heard about a lot of scottish cases going through the courts, unlike england,

but i suppose the biggest difference is the POC as the financial orgs up here would not get away with sending in 4 lines for a POC, like they do with northampton bulk centre,

the sheriffs here would NOT accept that without the proof to back up what they are saying in the POC



PS sorry for hijacking your thread here Harbourboy

Hi

No this is all very helpful to the OP, we dont know the exact details, this may go to court and all this information will come in very helpful when the time comes to decide on which course of action to take, or in our case to recomend.

Can you tell us Harbourboy if the summons has been issued i dont think we can advise unless we know, if it has when is the date it has to be returned.


Petr

[Gorang]

Re: AMEX charge cards - do we have a defence

Peter

if you ever need a help with a scottish case then please just shout or PM me


Harbourboy
As I said earlier if that writ did not look like the blank forms I posted earlier then it is NOT a summons, but if it is a summons then

There will be a return date and a hearing date on the summons, we need to know both and the return date is very important as this tells you when you have to get sumit into the court by

2.06 The return day and the hearing date
You will have noticed the expressions ‘return day’ and ‘hearing date’ on the summons. These dates will be inserted by the sheriff clerk when the summons is accepted by the court. What do they mean?

The return day is the day by which the defender must send a written reply to the court, if they intend to do so. When the return day will be depends on the situation at each individual court. On average, it is about six weeks after the date on which the summons is lodged.

The hearing date is the date set for the case to be heard, or otherwise dealt with, by the court. This takes place fourteen days after the return day.

Cases do not always need to be heard formally in court by the sheriff on the hearing date. Whether they have to or not depends very much on the defender’s response to the summons, as explained in paragraph 2.09.

We shall look at the significance of the return day and hearing date again later in this part of the guide.

[firefly]

Re: AMEX charge cards - do we have a defence

Any update available as its an interesting situation.