Clydesdale Bank faces legal challenge over refusal to disclose information on fraud case

The Clydesdale Bank is facing a legal challenge over its decision not to hand over information relating to a fraud which was committed against one of its customers (odd, you would have thought the customer had a right to know – Ed)

The Herald reports :

Fraud victim mounts legal challenge against bank

LUCY ADAMS, Chief Reporter April 06 2009

A legal challenge is to be mounted against one of Scotland's leading banks after it refused to hand over information about a fraud committed against a customer.

Gilbert Wright, 87, went to a cash machine in the main street of Cambuslang, North Lanarkshire, last New Year's Eve, and discovered that £8500 had been taken out of his Clydesdale Bank account.

The money was refunded by the bank after a delay, but it has refused to pass on the details of how it happened, claiming it cannot because of the Data Protection Act.

Lawyer Cameron Fyfe is now looking to launch a legal case against the Clydesdale for refusing to hand over details. He said: "If neither the bank nor the police are prepared to expose voluntarily the identity of the fraudster, we will seek to obtain a court order for it. If someone were hit over the head with a brick, they would be treated as a victim and yet in this case, they are not."

Experts say bank and credit card fraud is a growing problem as a result of the global financial crisis and yet consumer groups say too little is being done to protect customers and advise them.

Identity theft is estimated to cost the UK economy £1.7bn, and affects more than 100,000 people every year.

Gail Reid, Mr Wright's daughter, said: "My father was very badly shaken. We couldn't understand how it could have happened as he doesn't even use telephone banking. They said there were 11 calls made and that when the person calling had tried to move £11,000 to another bank account, they had advised him to split it and move it in two different transactions.

"I said I wanted the police to look into it but the (bank) said no and that they would reimburse my dad and call the police themselves. We were assured the money would be back in within five working days but nothing happened. I kept calling them.

"My dad was so upset. This was his life savings. It was only after I involved the lawyer that they finally agreed to repay the money. There was no apology though. The whole thing was deplorable.

"We want to know who took the money. My dad is concerned that it could be someone he knows. We went to the police and they said it was up to the bank, but the bank said that under data protection they couldn't give my dad any of the details."

Pamela Cameron, Mr Wright's grand-daughter, said: "If someone has fraudulently tried to access your account, the first thing you want to find out is who they are and how they were able to do that.

"The way he has been treated throughout seems unbelievable."
A spokesman for Clydesdale Bank said: "We take the issue of fraud very seriously and employ sophisticated fraud detection and management systems.

"If fraud occurs, extensive investigations are undertaken to seek a criminal conviction. Although these investigations take place we do not share specific details of fraudulent activity."

Consumer rights groups have warned that as the financial crisis hits profits, the banking industry is becoming increasingly reluctant to compensate customers who have lost money through fraud.

Trisha McAuley, head of services at Consumer Focus Scotland, said: "The current economic situation means this problem is just going to get worse. This case really resonates with the concerns people bring to us.

"The key issue is that the bank is seen as the victim and no support is given to consumers. It is a huge problem and the customers are repeatedly left to pick up the pieces themselves without any help. If their identity has been stolen, they get no control over the information and no way to stop it happening again.

"We believe banks should have somewhere that customers can go to get help. We would like to see a national centre dedicated to this."

The Financial Ombudsman Service, which handles consumer complaints against banks, now deals with about 125 cases a month of customers locked in disputes over PIN fraud. Most of these involve withdrawals from cash machines, where the consumer denies either making the transaction or authorising someone else to do so.

Under the Banking Code, to which all banks must adhere, customers are responsible for losses only if they acted "without reasonable care". This could include writing down a PIN or allowing someone else to use a card.

The code clearly states that unless a bank can prove that its customer acted fraudulently or without reasonable care, the most that the customer will be liable for is £50.

Legal Aid Board turns down libel applications as LPLA Act puts legal aid out of reach to most claimants

The right to claim legal aid is being challenged by a lawyer who feels the directions laid down in the Legal Profession & Legal Aid (Scotland) Act 2007, put legal aid out of reach of many claimants.

No prizes for guessing how it will turn out …

The Scotsman reports :

Directions to nowhere

Published Date: 09 February 2009
By John Forsyth

SCOTS legal professionals have traditionally taken a pride, perverse some say, in Scots law's approach to libel and defamation.

The £200,000 in damages awarded to Tommy Sheridan in August 2006 stood out in many respects. It was the highest sum ever awarded to a pursuer. The case was argued, unusually, in front of a jury. And it has led not only to an appeal against the award by the News of the World, but also to criminal charges of perjury against Mr Sheridan and his wife, Gail.

Even at £200,000 the award was small beer compared with the millions that have in the past been paid out to defamed and aggrieved celebrities in England. Scots law has never supported the notion of punitive damages. Furthermore, it regarded injury to reputation in similar terms to the loss of an arm or a leg because of another's negligence or malice – deserving of compensation but not jurisprudential hysteria.

The overriding aim of most pursuers is always restoration of their damaged reputation by vindication in court or through a publicised settlement, rather than pursuit of a cash award. However, even that modest ambition is available only to those with the means to fund an action. Costs can run well into six figures and the risk of failure carries the prospect of paying the defender's legal costs as well. It is a gamble too far for all but the wealthiest or well-supported.

Until two years ago it was absolutely clear that legal aid would not be provided to allow the less well-off to pursue litigation, no matter how badly defamed and damaged they may have been.

For a brief moment it seemed like the door had been opened by The Legal Aid Profession and Legal Aid (Scotland) Act 2007. Section 14(1C) permits the granting of legal aid in cases involving defamation and verbal injury. All the usual tests require to be satisfied, but an additional hurdle was introduced for the pursuer to clear. The case would have to satisfy "such criteria as may be set out by the Scottish ministers in directions given to the board".

Specifically, a pursuer has to prove a) there is a significant wider public interest in the resolution of the case, or the case is of overwhelming importance to the person; and b) there is something exceptional about the person or the case such that without legal aid it would be practically impossible for the person to bring or defend the proceedings, and this would lead to unfairness.

The directions then go on to raise the hurdle to the level of a high-jump bar. It says the board "must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steel and Morris v United Kingdom."

Steel and Morris is the famous McLibel case in which two activists were sued in England by the McDonalds organisation following their criticisms of the nutritional value of the hamburger chain's menu and also the effects of its business practice on the environment. The case unfolded over years and spanned 313 court days in which Steel and Morris were forced to represent themselves. It was the longest trial in English legal history and the inequality between the parties led to a review of the legal aid regulations in England and Wales.

The Legal Aid Profession and Legal Aid (Scotland) Act 2007 replicated the changes in Scotland. However, the reform appears to be a legal aid optical illusion. The door looks open, but it is actually closed.

The Scottish Legal Aid Board confirms it has received three applications for legal aid in support of defamation actions since the new regulations came into force. All three have been turned down.

One of them involves a man called Danny Wilson who is attempting to sue the City of Edinburgh Council. Mr Wilson now lives in Wales, but was resident in Edinburgh between 1991 and 1998.

In 2004 he and his partner were commencing a course of IVF treatment at Shrewsbury Hospital, but on one visit were advised that they were no longer to be treated. The clinic had received a letter from Edinburgh city council social work department advising (among other falsehoods) that Mr Wilson was a convicted murderer and had served the prison element of a life sentence. That was entirely untrue.

The council later acknowledged that the information contained in the letter was incorrect and unsubstantiated.

Mr Wilson felt his reputation had been damaged in the eyes of those who had seen the letter and who had declined therefore to continue with the IVF treatment. He and his partner incurred financial loss in securing – successfully – treatment elsewhere.

His lawyer, Cameron Fyfe, of Ross Harper, lodged an application for legal aid to support an action for defamation. The application was rejected. Mr Fyfe appealed. The appeal was dismissed, although the sheriff principal observed that he found the hurdles placed in the way of a successful application "extraordinary".

Last December Mr Fyfe lodged a further application for legal aid, this time to fund an action against the Scottish Government itself on the basis that the directions appended to the Legal Aid Profession and Legal Aid (Scotland) Act 2007 effectively put legal aid beyond reach and therefore unlawfully breach Article 6 (1) of the European Convention of Human Rights. Article 6(1) sets out the right to a fair and public hearing in the determination of any civil rights or obligations or of any criminal charges.

Mr Fyfe says: "The directions imposed by the government effectively make it impossible for Mr Wilson to pursue his action. Bizarrely, under the directions I doubt if even Steel and Morris would get legal aid, even though their case is supposed to be the benchmark."

A decision on the application is expected in March.

Council can be sued after thug neighbour killed family member

A family has won the right to sue Glasgow City Council after a violent neighbour killed a family member .. and so it should be – Councils should be held liable for their tenants bad conduct if they don’t take steps to prevent it.

Scotland on Sunday reports :

Family win chance to sue council after 'thug next door' killed grandfather

Published Date: 26 October 2008
By David Leask

JAMES Mitchell told his council landlord he would sue if his violent neighbour ever hurt him or those he loved. Now, seven years after the Glasgow grandfather was clubbed to death with a plank by "the thug next door", his family have finally won their day in court.

In December, Mitchell's widow Anne and daughter Karin will take a £150,000 claim for compensation against Glasgow City Council to the House of Lords. But they won't just have to battle lawyers for the council. Eight Scottish housing associations with no connection to the case have sought the right to have their concerns over the action heard by the Law Lords. The housing associations are terrified that a Mitchell victory could lead to a rash of indefensible lawsuits from other victims of "neighbours from hell" that could cost millions.

"We are worried that the Mitchells' action, if successful, could potentially open up the floodgates to numerous claims for small amounts of money that would not be worth defending," said Graham Craik, a lawyer representing the eight Scottish associations.

"We have no axe to grind against the Mitchells. What happened to them was very sad. But there is a fundamental principle of jurisprudence here. Do we really want to make an organisation responsible for another person's criminal acts?"

The housing associations represented by Craik come from as far afield as Lewis, Shetland and Dundee. Scores of other social landlords, housing associations and councils will be watching the case with interest.

The family are suing Glasgow City Council for failing in its duty of care to Mitchell, a 72-year-old retired factory worker who served on his local community council. The city council, they argue, could have evicted his next-door neighbour and killer, James Drummond, especially as the Mitchells had been the subject of a seven-year campaign of terror which started after Mitchell asked Drummond to turn down his music. That campaign was to end in July 2001 when Drummond attacked Mitchell outside their homes.

Last night, Mitchell's daughter, 36-year-old Karin, said: "Just days before he was attacked, dad had written to the council to say he would sue if anything happened to him or us. We thought we should keep his wish."

The family hope their action can force landlords to act more quickly when other tenants raise concerns about violent neighbours. Karin, however, can see the other point of view too. "Landlords can't be held responsible for everything," she said. "This is not about the money. We just believe that some good must come from my dad dying."

The Mitchells' lawyer, Glasgow-based litigator Cameron Fyfe, of Ross Harper, believes a victory for the family could be a huge advance for tenants' rights but he can also see why such an outcome would concern housing associations. Fyfe yesterday said: "This is an important case as it will determine whether a local council or housing association has a duty of care to protect a tenant from a violent or unruly neighbour in circumstances similar to those of the late Mr Mitchell."

Craik, of McClure Naismith, believes no housing association has ever before sought to intervene in a House of Lords case. Landlords, especially those in troubled urban areas, could face dramatic rises in their costs if the Mitchells win. Insurers will charge far higher premiums to protect landlords from claims such as that brought by the Mitchells.

Craik, however, yesterday suggested that it would be smaller claims that would add up the most.

Scotland's biggest social landlord, Glasgow Housing Association, has alone dealt with 11,000 people who have complained of "neighbours from hell" in the past five years.

One insider said the number of potential lawsuits, should the Mitchells win, could be "staggering".

Other big housing organisations are taking a keen interest in the case.

Andy Young, policy manager at the Scottish Federation of Housing Associations, which has 163 members, said: "The Lords' ruling on this case could potentially have far-reaching consequences for many of our members."

Crown Office refuses damages claim of disabled boy cleared of ‘racist attack’

The Crown Office, described by one currently serving Scottish Cabinet Minister as being “the most corrupt institution in Scotland”, has refused to pay damages to a disabled boy it pursued over a ‘racist attack’.

Sounds typical for the Crown Office ? That would be a “Yes” …

The Scotsman reports :

Down's syndrome boy cleared of racist attack is refused damages claim

By Tanya Thompson

SCOTLAND'S prosecutors have refused to accept liability in the case of a teenager with Down's syndrome who was charged with carrying out a racist attack.

The case of Jamie Bauld provoked a public outcry last year after the youngster, who has a mental age of five, was accused of attacking an Asian girl at a college in Motherwell.

After seven months, the case was dropped and the Bauld family launched a damages claim against the police and Crown Office, insisting the case should never have gone that far.

Now the boy's parents, Jim and Fiona Bauld, are furious after they received a letter from the Crown Office saying the family has "no basis" for legal proceedings.

The Crown Office has stated its refusal to accept liability in the case, a move that effectively dismisses the family's claim for damages against it.

Lawyers say the Bauld family has been left with little choice other than to take the case to court, at great cost to the public purse.

Last week, Fiona Bauld said her son had no concept of what racism was and it was therefore ludicrous to have pursued the case against him. "They charged my son … they said it was assault and racial abuse," she said.

"This is a child with Down's syndrome … it is absolutely ridiculous. This whole thing has been a waste of taxpayers' money and a complete waste of my time and Jamie's time."

She added: "We rang the Crown Office five times to explain that he had special needs but it was not prepared to listen."

In April, the Crown Office offered a rare apology to the family after the heavy-handed treatment Jamie received from the authorities.

Jamie, now 19, was read his rights by police and referred to the procurator fiscal for assault and breach of the peace following a minor scuffle with an Asian girl, who also has special needs, last September.

Mrs Bauld claims her son had complained about the girl following him and staring at him, and when she approached him one day, he pushed her and told her to go away.

The incident was described by his parents as nothing more than a playground squabble, but soon after, they were told a notice had been placed in a local newspaper asking for witnesses to a "racial assault".

It is not known who placed the advert, but two police officers came to Jamie's house and interviewed him about the incident. This was followed by a letter from the procurator fiscal saying there was enough evidence for charges to be brought.

The Baulds faced the threat of a court case hanging over them for nearly eight months before the authorities informed them that the proceedings against Jamie were to be dropped.

The family were furious when it was suggested they should work with Jamie and a team of social workers to address some of the issues. Urged to attend a "diversion from prosecution" scheme with the local social work department, they refused, insisting they had done nothing wrong.

Mrs Bauld, from Cumbernauld, North Lanarkshire, claims Jamie has been deeply traumatised by the whole experience.

"Jamie's hair was falling out and he was going to see a psychologist because of the stress he has suffered," she explained.

"Someone has to take responsibility for what my son has been through."

Mr and Mrs Bauld believe their son was a victim of a zero-tolerance policy on racism, under which police have to respond to any complaint, however minor.

Mrs Bauld described the case, which provoked outraged when it was broadcast on BBC news programmes, as "utterly beyond belief".

She said it was obvious Jamie did not understand the offence of racial assault because, having been read his rights by a policeman, he shook the officer's hand and thanked him for the home visit.

The mother of two said the case was made all the more ironic given the family had just returned from a trip to the Caribbean, and her son had not even noticed the difference in skin colour among the children he befriended on holiday. Just weeks after their return, the debacle unfolded.

"Jamie has no concept of racism," she added. "Down's syndrome children look at every person the same way. They don't see colour and race when they look at a person.

"We had just come back from Jamaica, and he never even noticed that they were a different colour.

"He has Asian friends ... it was never an issue."

Cameron Fyfe, the family's lawyer, believes the case is an example of "political correctness gone mad". He said the family was effectively given a warning that they felt was an insult.

"As soon as the authorities realised the boy had Down's syndrome they should have said 'no further proceedings'," he said.

"It dragged on for seven months and the family were being caused great distress. We had hoped the Crown might settle out of court but when they reply to the effect that the family is not getting a penny, the only option is to go ahead with a court action.

"When there is so much crime on the streets, for them to spend so much time and attention on this matter is beyond belief," Fyfe added.

Charity organisation Down's Syndrome Scotland said it was hoped lessons would be learned from the case, as the proper procedures had not been followed.

A spokeswoman for the Crown Office said: "We appreciate that this has been a distressing situation for Mr and Mrs Bauld and their son Jamie, and we have offered our apology for that.

"We made it clear, at the time the apology was offered, that there were a number of inquiries that are required to be made by the procurator fiscal before a final decision could be taken in this very sensitive case, something which the family were aware of.

"In response to a letter from solicitors acting on behalf of the Baulds, we explained our position that the length of time taken to reach a decision would not provide any basis for a claim for compensation

First Minister orders study of truth & reconciliation commission after law lords refuse abuse cases

It takes 'the man' himself to move on justice issues in Scotland it seems, leaving Justice Secretary Kenny MacAskill well & truly in the shade as First Minster Alex Salmond moves to assure he will not turn his back on victims of abuse who had their hopes for justice thrown out by the House of Lords last week.

Well that's good. Its about time someone did something on justice, since the Justice Secretary isn't doing a thing ... and we here at Scottish Law Reporter firmly support the idea of Truth & Reconciliation to be implemented in many areas of injustice. Lets hope the First Minister carries on where others have failed ...

The Sunday Mail reports :

Abuse victims' pain as law lords deny them justice

May 25 2008 By Marion Scott

ALEX SALMOND has pledged to find a "way forward" for abuse victims whose hopes for justice were dashed by the House of Lords last week.

First Minister Salmond has told his officials to study Ireland's truth and reconciliation commission after the decision last week.

His spokesman said: "He has given his assurances that he will not turn his back on these victims.

"The Scottish Government will give careful consideration on how best to take these matters forward."

A test case had been brought by Jacqueline Whitton, 55, and Adeline Bowden, 45, who claimed to have been abused by nuns at Nazareth House in Cardonald, Glasgow, in the 1960s. But five law lords agreed with the Court of Session decision not to allow their £50,000 claim. The ruling will hit thousands of similar claims.

Jacqueline called the decision "a victory for the devil".

The ruling is a blow to victims, who must make a claim within three years of turning 18.

It means even those who had proved abuse would not receive Legal Aid funding.

The Irish government passed laws to re-categorise abuse victims as having a disability so they could get round the timebar on claims.

Former First Minister Jack McConnell said yesterday: "Legal technicalities shouldn't get in the way of justice. I am calling on the First Minister to explain what they will do."

But some victims accuse McConnell of betrayal after he failed to take action in 2004.

Lawyer Cameron Fyfe said: "When he apologised to victims four years ago, he should have taken the steps the Irish government did. But he didn't."

Jacqueline Whitton Beaten by nuns

JACQUELINE claims she suffered years of beatings and mental torment by Poor Sisters of Nazareth nuns at Nazareth House in Glasgow. Careworker Jacqueline, 55, from Paisley, said: "I wonder who commits the greater sin - judges, abusers or those who stood by."

She turned to Cardinal Thomas Winning, who offered support, and she believes if he had not died in 2001, the Church would have said sorry.

She said: "I was incensed when I heard Archbishop Mario Conti on TV defending the nuns after Sister Alphonso was prosecuted in Aberdeen eight years ago.

"He described victims as chasing a pot of gold being dangled by lawyers.

"It was such a gross betrayal of children like me."

Sister Alphonso, whose real name is Marie Docherty, was found guilty of four charges of cruelty against young girls.

James Morris Raped by teacher

AS a nine-year-old at St Margaret's Children's Home in Elie, Fife, James was raped by housemaster David Murphy.

Murphy abused 40 kids and died in 2003, months into a 15-year jail sentence.

James, 55, won £75000 compensation because Fife Council decided not to use time limit as a defence.

He said: "The Lords' ruling is a kick in the teeth. There is no timebar on our suffering."

Arthur McEwan Beaten by monk

ARTHUR, 54, sued Brother Benedict - real name Michael Murphy - for years of beatings at St Ninian's List D school in Gartmore, Stirlingshire, run by De La Salle monks.

But he will not receive the £50,000 award as Murphy took a vow of poverty.

Arthur, of Sauchie, Clackmannanshire, said: "I only hope our new First Minister will make the changes we need to reclaim our lives."

David Whelan Abused by teacher

DAVID suffered years of sex attacks by 'Beast in the Belltower' John Porteous at Quarrier's children's village, Bridge of Weir, Renfrewshire.

In 2002, Porteous, 75, was jailed for eight years - reduced to five on appeal.

David, 49, said: "Holocaust victims weren't time barred so why are we?

"My case was proved in court yet this ruling denies me compensation. It's not only unfair, it's perverse."