can't seem to get an answer

[mollyhannah]

Hi, i have been trying to get an answer to this and just wondered if anyone on here can advise me. I am helping my husband to claim back his charges, the thing is only part of them are within 6 years, most of them are over 6 years. I intend to claim these by invoking s32(1)(b). I have read a couple of theads where once it gets to court the bank then tries to get it thrown out because it's time barred. Then once s32 has been invoked they have paid anyway. So my question is, to stop them from stalling by trying to get it thrown out should i state in my LBA that i intend to invoke s32(1)(b), put it in my particulars of claim or just leave it until it gets to court?

 

Thank you

Karen

[Rooster-UK]

Hi Molly.

 

I'm not sure of the exact position and I don't want to give youu misleading information.

I'll try to get someone to give you an answer as soon as I can.

[Rooster-UK]

Hi Molly.

 

I have left a message for someone to come and advise you.

[alanfromderby]

I included the following in my Particulars of Claim:

 

 

c) The Defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the Defendant truly believes that these charges are lawful, then the Claimant contends that the Defendant is mistaken. As the Claimant only became aware during February 2006 that the charges debited were unlawful, then section 32(1)(b), or section 32(1)©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period.

 

 

I then included the following in my Responce to the Defence, where they dispute the above:

 

 

 

Paragraph 4 is noted, however the Claimant disagrees with the Defendant’s viewpoint, and would make the following statement in support of section 5© of the Particulars of Claim:

 

The Claimant, as a lay person with no legal training or expertise, could not be expected to have the legal knowledge to question the validity and lawfulness of the charges that have been applied to the account as shown in the spreadsheet filed with the original claim.

 

The Claimant learned that these charges were unlawful during February 2006, after media publicity was given to a legal claim regarding the legality of bank charges. This led to the Claimant making further investigation and seeking advice through the Consumer Action Group website, and other Internet based legal sources.

 

The Claimant would also cite the statement made by the Office of Fair Trading dated 5th April 2006, which stated that charges levied by Credit Card Companies were disproportionate, and likely to be unlawful. The report also contained the view that, “The broad principles set out in this statement are likely to be relevant to other default charges in standard agreements with consumers, such as those for mortgages, store cards and bank accounts.”

 

The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large staff which includes experienced corporate lawyers and accountants.

 

At some point, the Defendant must have made a business decision to apply a charge to a customer account where a breach of contract took place, which was disproportionate to the banks actual losses for that breach. In making this decision, it would reasonably be expected that a company operating in such a position of high trust and fiduciary responsibility would have taken legal counsel when making such a decision.

 

The Claimant holds that if the Defendant did take legal counsel on this issue, then it has made a decision in the full knowledge that the said charges were unlawful, and that they have deliberately concealed this fact from their customers, and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

 

 

The Claimant holds that if the Defendant did not take legal counsel on this issue, then they did not operate with the reasonable diligence that would be expected of an experienced fiduciary, and that their failure to seek such legal counsel at the time should have been declared when the bank did eventually seek such legal counsel, and that by not making such a declaration the Defendant has continued to show deliberate concealment and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

 

The Claimant holds that if the Defendant did not take legal counsel on this issue, and are genuinely unaware that the said charges are unlawful, and that the court does not uphold the Claimant’s view that section 32(1)(b) of the Limitation Act 1980 should apply, then the Claimant holds that section 32(1)© of the said Act should apply.

 

 

 

 

 

[Rooster-UK]

WOW !

:D

Go for it.

[mollyhannah]

WOW INDEED! Thank you so much for this information, thats just what i needed.

Thanks Rooster for drawing Alans attention to my question.

 

Thank you

Karen

[Guest bong]

I then included the following in my Responce to the Defence, where they dispute the above

 

Thanks Alan this is very useful. If you don't mind me asking, when exactly do you get the opportnuity to respond to the defence? Is it something you are invited to do by the court or do you have to take the initiative yourself?

[alanfromderby]

The CPR allows a Response to Defence.

 

It is not compulsory, or requested, but it does allow you to deal with a specific issue raised in the Defence. In my case with Bristol & West, the issues are complex, and I actually do concede that some of the charges levied are legitimate legal expenses incurred.

 

As a large part of the claim is pre-2000, the Limitation is key to the case, and forms a major part of the Defence. By expanding on it, through the Response to the Defence, it also alerts the judge, and the Defendant, that you more than understand the argument, and have a case that will stand up in court.

[Spiceskull]

You could always try a two-pronged approach:

 

Claim for all applied charges that fall within the six year period first, and establish a 'repayment relationship' with the bank. That way you have established that the bank has made errors in your husband's account, they have rectified them, although they will not make any admission of liability.

 

Once done, you can then make a separate claim for the so-called statute-barred charges. This is especially good if you have actual proof of the charges, by way of statements or something similar.

 

If you claim for everything at once, there is always the possibility that the bank will rely on the limitations period to get the complete claim thrown out, or at least attempt to mount a very robust defence.

[alanfromderby]

Whilst it is a matter of personal choice over this, I am of the opinion that it is better to keep claims intact.

 

My main reason for this is that a bank cannot go into court to argue on one part of the clam only. If they want to go into court and argue limitation - they would have to also argue about the charges.

 

On the other hand, if the claim was totally for charges outside of the limitation period, the bank could just go into court and argue the limitation issue - and only if that argument was lost would they then have to argue the charges, and could of course concede at that point.

 

The other advantage comes if the the claim is likely to be above £5,000. This would mean that the Claimant can benefit from Fast Track and Standard Disclosure.

 

Whilst this does bring with it a possible exposure to limited costs (£500 to £750), this would only become an issue if you were to lose, and even then your case would have to be deemed by the judge to be very poor, indeed bordering on frivolous. The arguments developed on this site provide a considered legal argument, and would suggest that they would not fall into this category.

 

As I say, that is my opinion, and must be taken along with other opinions on this forum and elsewhere.

[Spiceskull]

If they want to go into court and argue limitation - they would have to also argue about the charges.

Very very fair point - and one that I overlooked...