Bank charges update: remit from small claims to the ordinary court

One of the current strategies of UK banks in Scotland is to ask the court to remit cases from the small claims procedure (where expenses are capped) to ordinary cause procedure (where expenses are potentially unlimited).  Remit between different court procedures, or to a senior court, can be granted where there are difficult questions of law, or exceptionally complicated factual issues. 

From the consumer's point of view having a claim removed from the small claims system means either instructing a solicitor in the hope of obtaining civil legal aid, or dropping the claim unless you were prepared to risk court expenses several times the value of your claim in the event of failure. Legal aid is not straight-forward either, one has to pass all of the qualifying hurdles, and for those on a modest to good income, you may have to pay a financial contribution to the legal aid board in excess of the value of your claim; and if you win, it is not necessarily straight-forward that you won't have 'contra' expenses, or be required to pay some of your award back to the legal aid board. Things can get complicated with expenses.

The practical result of remit will be that some consumers will drop their claims as it becomes uneconomical or financially imprudent to pursue a case.  If that happens, access to justice will have been thwarted.  This raises fundamental questions about the proportionality of our justice system in relation to expenses, and whether bank charge claimants of modest means have the right to a 'fair hearing' before our courts, as guaranteed by Article 6(1) of the European Convention on Human Rights.

In the case of Walls v. Santander UK plc, counsel for the defender sought remit from small claims to the ordinary cause. Govan Law Centre opposed this application on behalf of the pursuer.  After lengthy submissions, Sheriff Cubie at Glasgow Sheriff Court made 'avizandum' (which means he will reflect upon the issues and provide a written judgment). Sheriff Cubie's Opinion is expected later this month. GLC will provide a further update in due course.