Step 3 - Raise a small claim action in Scotland

If your bank refuses to refund charges you can raise a small claim action in the Sheriff Court. However, it is important to note that if you do this you must proceed with the action to its conclusion in order to enjoy protection of a restricted award of court expenses in the event of losing. Hopefully you'll be successful, but there are no guarantees. The more people challenge charges the less viable it will be for banks to defend claims.

Subject to the above caveat, if you raise a small claim with a value of £200 or less and the case has been defended there is normally no award of expenses. If you raise a claim with a value of £1,500 or less then the maximum award of expenses (win or lose) is now £150, and for claims over £1,500 to £3,000 the maximum award of expenses is now 10 per cent of the value of the claim. This means so long as you act in good faith and pursue a claim for up to £1,500 the bank can only recover £150 expenses if you lose; likewise a claim of £3,000 would attract a maximum award of £300 in expenses. If the bank wants to defend your claim it will cost them considerably more than refunding charges.
What if the bank doesn't bother to defend my claim?

You need to pay court lodging dues of £8 for claims worth less than £50, and £44 for £50 to £3,000 claims (the max limit for claim on or after 14 January 2008). You may be exempt from paying court fees if you are in receipt of income support, IBJSA, guarantee credit, tax credits or are receiving civil legal aid or special urgency civil legal aid. Exemption forms are available on the Scottish Courts Administration website, or from the sheriff clerk. If you're only pursuing a couple of charges (eg. £60) you may wish to sue for £49.99, as it will only cost £8. You need to complete small claims Form 1 and 1B. Below is a pro forma statement of claim which you can use for an action of payment. Guidance using the small claims procedure is available here (Scottish Courts Administration website - PDF format).

Pro forma statement of claim:
(doc) or (PDF)

If you do raise court proceeedings you must be prepared to undertake all of the work necessary to present your case - up to and including a full evidential hearing. The responsibility for litigation will rest with you alone.

Alternatively, if you do not feel confident raising a small claims action, or you claim is over the small claims limit (£3,000 in Scotland - see also 'Sheriff Principal rejects bank's defence of res judicata' news link opposite) you can lodge a complaint to the Financial Ombudsman Service (although complaints may be subject to the FSA's 'waiver' pending the OFT's test case in London i.e. they may be placed on hold). The Ombudsman can require your bank to refund your charges.

Please note we do not have the resources to advise on individual cases online.

If you are successful in getting charges refunded, let us know at: mail@bankcharges.info.