Hamilton v RBS too complex to be small claim
Sheriff Simon Pender of Oban ruled on 26 February 2009 that Ian Hamilton's action against the Royal Bank of Scotland is too complex for small claims procedure in the sheriff court, and as a result Mr Hamilton has decided to abandon his action.
The news comes on the same day RBS announced a British record corporate loss of £24 billion and its withdrawal from its sponsorship of the Williams Formula 1 motorsport team. With luck we should not have to endure too much longer the sight of the RBS logo splashed across the centre line at Six Nations rugby internationals.
The outcome of Mr Hamilton's case shows that the very large number of relatively small-scale savers, investors and pensioners whose fortunes have been deeply damaged as a result of the banks' activities are very unlikely to be able to seek any redress that may be due to them through the courts under present rules. In deciding that the case should be remitted to proceed under Ordinary Cause procedure, Sheriff Pender noted that legal aid would then be available as it is not in small claims (but of course, as the sheriff also accepts, he cannot tell whether or not Mr Hamilton is eligible for legal aid).
But it's an ill wind that blows nobody any good. There is clearly a case for reconsidering the availability of class actions in our law. Justice to be done must be seen to be done; and it is simply not justice if the courts are for all practical purposes inaccessible to those who consider that they may have been wronged by the actions of persons who happen to have much deeper pockets with which to fend off claims (in this case too pockets which have been patched up with huge amounts of taxpayers' money).
Note further in this context the banks' efforts – all too often successful – to have Scottish claims against them in respect of possibly unfair bank charges sisted to await the outcome of decisions in other jurisdictions, commented on here in Scots Law News. See also the comments of Mike Dailly, Govan Law Centre, reported in The Firm before the decision in the Hamilton case.
Returning to Mr Hamilton's action, it appears from Sheriff Pender's judgment that the claim of fraud had been dropped and the action had become one only in respect of alleged negligence.