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Human rights case to follow bank charges procedure decision
The European Court of Human Rights (ECtHR) is to be asked to rule on the sheriff court procedures in Scotland for transferring cases raised as small claims to the ordinary court, following the latest decision by a sheriff in a case seeking repayment of bank charges.
Last week Sheriff Andrew Cubie in Glasgow Sheriff Court ordered that a case brought by Allison Walls against Santander UK plc proceed as an ordinary action on the bank's motion, against opposition from Mike Dailly, principal solicitor at Govan Law Centre, who appeared for Ms Walls.
In the action Ms Walls sued for repayment of £3,000, the maximum allowed in a small claim, on the basis that the charges levied were excessive and punitive, unfair in terms of the Consumer Credit Act, and alternatively in breach of the Unfair Terms in Consumer Contracts Regulations 1999.
Sheriff Cubie considered that the case raised difficult questions of law under each heading, and also that there was potentially exceptional complexity on the facts. In doing so he rejected an argument by Mr Dailly that a remit would be incompatible with the right to a fair hearing under article 6 of the European Convention, having regard to Ms Walls' circumstances, considerations of access to justice and to a fair trial, and the proportionality of costs in relation to the sum sued for.
If Ms Walls applied for legal aid her contribution would be assessed at a sum greater that that sued for, and she was in any event due to inherit some money which would take her past the capital limit for eligibility. However she could not afford the full cost of ordinary procedure. However the sheriff did not consider that she fell within a "class" of people being deprived of access to the courts, within previous European human rights case law.
Mr Dailly also argued that one of the reasons that the small claim limit had been raised by the Scottish Government from £750 to £3,000 was to make it easier for people to bring actions such as this, but if banks adopted the practice of moving for all such actions to become ordinary actions this would be negated.
The case to be put to the ECtHR will argue that the Scottish Government has failed to safeguard her rights by failing to continue the protection from awards of legal expenses when a small claim becomes an ordinary action, and by failing to allow an appeal against a sheriff's decision to remit a small claim to the ordinary roll.
Mr Dailly said he hoped that Kenny MacAskill, the Cabinet Secretary for Justice would reconsider his refusal to look at a law reform solution to prevent a class of persons, such as Ms Walls, being limited in their ability to determine their civil rights before the Scottish courts.
He commented: "The case of Walls illustrates a major flaw at the heart of Scotland's civil justice system. What's the point in having an accessible simplified tier of civil justice for low level claims if any powerful opponent can come along, up the ante, and 'price' you out of justice?"
Pointing out that access to justice required citizens to be able to access the courts at a cost proportionate to the value of their monetary claim, he added: "The small claims system help fulfils our state's article 6(1) requirement under the European Convention on Human Rights. But there is now a 'class of litigants' who are priced out of justice. GLC believes there is an obvious solution. The small claims fixed limit on expenses should 'travel' with the case. This would ensure that the costs of resolving the dispute remained proportionate and fair having regard to the monetary value of the dispute. This could be achieved by a minor statutory amendment."