H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[Bigdebtor]

And since we DON'T YET KNOW the true legal situation regarding bank charges - the 6 years have not yet started to tick.

 

BD

[means2anend]

And since we DON'T YET KNOW the true legal situation regarding bank charges - the 6 years have not yet started to tick.

 

BD

 

Applying those principles...

 

BANG ON!!!

 

m2ae:)

[kennyh]

Apart from timing exactly what cause do we have to breach the statute if claims used s.32 (1)(b) Limitation Act 1980 in support of their original claim?

[tifo]

i'm not trying to be difficult here, but why do banks (and the FOS) say we can ONLY claim for the last 6 years, as per the limitation?

 

then why does it say in the pop up link that charges can be claimed going back to 1 Jan 1995?

 

the above points have been stated but no real explanation given.

 

i ask because i am claiming charges on both credit card and bank charges and the banks have stated there are no charges in the last 6 years so they cannot refund anything, since my charges are from between 2000 and 2002. I have cited the 3 year + 6 years as relevant but they won't budge.

 

i've gone over the 6 years because of passing the cases to the FOS who've taken over 2 years to make a biased decision (accounts are fully paid and settled but they want DCA/bank to keep the refund). Then the test case has taken my bank charges over 6 years.

[Bigdebtor]

They are either lying or being stupid. I have very clearly stated what the Act ACTUALLY SAYS. The more you read in CAG the less you realise these idiots actually know and the more they lie!

 

BD

[hsbcfiddled]

They are either lying or being stupid. I have very clearly stated what the Act ACTUALLY SAYS. The more you read in CAG the less you realise these idiots actually know and the more they lie!

 

BD

 

Never has a truer statment been made. IMHO.

[hsbcfiddled]

They are either lying or being stupid. I have very clearly stated what the Act ACTUALLY SAYS. The more you read in CAG the less you realise these idiots actually know and the more they lie!

 

BD

 

 

Never has a truer statement been made.IMHO.

[tifo]

They are either lying or being stupid. I have very clearly stated what the Act ACTUALLY SAYS. The more you read in CAG the less you realise these idiots actually know and the more they lie!

 

BD

 

OK, so basically what is being said is that the limitation does not start until 6 years after the date of discovery of the mistake and that you can go back as long as you want, or at least to 1 Jan 1995 (why this date?), as per s.32?

[Bigdebtor]

Yes to your first part - but I don't know why 1 Jan 1995 is mentioned at all - might be something the FSA or OFT agreed to? - along with the very generous waiver allowing Banks to continue robbing us while we could do sweet about it!

 

BD

Edited February 25, 2010 by HSBCrusher
language timothy! :-D

[TheyrCriminals]

Hi,

 

Could anyone please post up the relevant section of the Supreme Court judgement that speaks of the new legal avenue under S.5 UTCCR's?

 

Thanks,

 

TheyrCriminals

[HSBCrusher]

The Consumer Forums - FAQ - The New Bank Charges Position

 

[caro]

Yes to your first part - but I don't know why 1 Jan 1995 is mentioned at all - might be something the FSA or OFT agreed to? - along with the very generous waiver allowing Banks to continue robbing us while we could do sweet about it!

 

BD

 

I believe it's 1st July 1995 due to this in UTCCR 1999:-

 

EXPLANATORY NOTE

 

(This note is not part of the Regulations)

 

These Regulations revoke and replace the Unfair Terms in Consumer Contracts Regulations 1994 (S.I. 1994/3159) which came into force on 1st July 1995.

 

Those Regulations implemented Council Directive 93/13/EEC on unfair terms in consumer contracts (O.J. No. L95, 21.4.93, p. 29). Regulations 3 to 9 of these Regulations re-enact regulations 2 to 7 of the 1994 Regulations with modifications to reflect more closely the wording of the Directive.

 

 

This is the link:- Statutory Instrument 1999 No. 2083

[Bookworm]

I believe it's 1st July 1995 due to this in UTCCR 1999:-

 

 

This is the link:- Statutory Instrument 1999 No. 2083

Correct. ;-)

[means2anend]

Can anyone draw my attention to any place in the 1999/2083 regs that state limitation period can go back to 1995...unless I have overlooked anything..

 

m2ae

[tosh1]

judgement or no judgement i am still going to try and go ahead with my unfair claim. my link is at the bottom any advise as always is greatly welcomed.

 

http://www.consumeractiongroup.co.uk/forum/nationwide/162435-nationwide-bank-charges-1900-a.html

[Aequitas]

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the 6 year period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from September 2000

 

Despite Googling, I have been unable to find the text of the Kleinwort Benson case. The observations which follow are therefore made on the assumption that the summary given above is correct and does not leave out anything relevant.

 

At the risk of being accused of negativity, I have to say that it is far from clear that the Kleinwort Benson case will apply to bank charges.

 

The key point is that the "party pays another on the basis of settled law and that law is subsequently overturned". If you sue a bank for the repayment of bank charges and win then the law is that the bank was not entitled to make the charges. Since there has never been a case that said the bank was entitled to make the charges it was always settled law that the charges could not have been made; the law has not been overturned. Accordingly, I think it has to be the case that, even if at the relevant time you thought the law was different, you will be deemed to have known that the law was what it in fact was. There is no "new decision" and therefore no later date on which the limitation clock starts to run.

[fergal71]

can any legal seagulls bring all these cases and details together to form one case?

Edited March 1, 2010 by fergal71
mistake

[hsbcfiddled]

Despite Googling, I have been unable to find the text of the Kleinwort Benson case. The observations which follow are therefore made on the assumption that the summary given above is correct and does not leave out anything relevant.

 

At the risk of being accused of negativity, I have to say that it is far from clear that the Kleinwort Benson case will apply to bank charges.

 

The key point is that the "party pays another on the basis of settled law and that law is subsequently overturned". If you sue a bank for the repayment of bank charges and win then the law is that the bank was not entitled to make the charges. Since there has never been a case that said the bank was entitled to make the charges it was always settled law that the charges could not have been made; the law has not been overturned. Accordingly, I think it has to be the case that, even if at the relevant time you thought the law was different, you will be deemed to have known that the law was what it in fact was. There is no "new decision" and therefore no later date on which the limitation clock starts to run.

 

Phew! I think I know what you mean.

My understanding is SIX years from discovering the error, or charge.

 

So in effect the clock hasnt yet started ticking is what you are saying?

[Aequitas]

My understanding is SIX years from discovering the error, or charge.

 

The limitation period does not start to run "until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it." I think that a mistake of law is different from a mistake of fact or concealment or fraud. The last three involve some notion that you monitor your affairs. When it comes to the law it is different because on the whole people do not keep up with the law.

 

 

So in effect the clock hasnt yet started ticking is what you are saying?

 

No - the opposite. It has already started.

 

Hopefully some examples will demonstrate the position:

 

A. You mistakenly pay your gas bill twice. That is a mistake that can with reasonable diligence be discovered almost immediately. Any extension of the time limit will be minimal.

 

B. You are sharing a house with someone and paying an all in rent i.e. it is your landlord who has the contract with the gas company. You pay a gas bill because you believe you are legally liable to pay it. In fact you are not. If you discover your mistake five years later you can claim the payment back arguing you made a mistake in law. If you discover your mistake seven years later you are too late to claim the payment back on account of a mistake in law. Both at the point you made the payment and the point you discovered the mistake the law was the same. Nothing has changed of which you could have had notice or be deemed to have had notice.

 

C. Same scenario as B, but (obviously just for the sake of argument) we take it that at the time you made the payment it was believed, because a court had said so, that the law was that lodgers were responsible for gas bills. Five years later that case is overruled. On this occasion whilst it is still the case that you paid under a mistake of law the mistake was the court's and not yours. Your limitation clock therefore starts to run, I would suggest, from the day the decision to overrule was published. I do not think it can run from a later date because, as I said above, in practice you would not be watching out for a change in the law. It would be unreasonable if the clock did not start to run until you discovered the change by chance - that would undermine the whole point of the law of limitation.

[Bookworm]

How about D?

 

D. Like in B, your landlord tells you you are liable for the gas bill even though you are pretty sure you shouldn't be, but don't know how to find out any better, as your landlord receives all the bills and systematically refuses to let you have any of the information which would allow you to challenge this. Years later, you find out that he in fact lied to you, concealed facts and misled you throughout.

 

What then?

[hsbcfiddled]

How about D?

 

D. Like in B, your landlord tells you you are liable for the gas bill even though you are pretty sure you shouldn't be, but don't know how to find out any better, as your landlord receives all the bills and systematically refuses to let you have any of the information which would allow you to challenge this. Years later, you find out that he in fact lied to you, concealed facts and misled you throughout.

 

What then?

 

This is the example I am most comfortable with Bookie.

 

The six year clock can surely only start when you have discovered it.

Not six years from when the bank hid it.

The clock starts and runs forward not backwards.

[Michael Browne]

Despite Googling, I have been unable to find the text of the Kleinwort Benson case.

 

Is this it?:

Kleinwort Benson Ltd v. Lincoln City Council Kleinwort; Benson Ltd v. Mayor etc of the London Borough of Southwark and Others Kleinwort; Benson Ltd v. Birmingham City Council Mayor etc of the London Borough of Kensington and Chelsea and Others [1998]

[Aequitas]

How about D?

 

D. Like in B, your landlord tells you you are liable for the gas bill even though you are pretty sure you shouldn't be, but don't know how to find out any better, as your landlord receives all the bills and systematically refuses to let you have any of the information which would allow you to challenge this. Years later, you find out that he in fact lied to you, concealed facts and misled you throughout.

 

What then?

 

Just be to clear, I am talking about the narrow point arising from the Kleinwort Benson case which is concerned with a mistake of law. Whilst you can misinform someone of the law, you cannot conceal it from them. Accordingly there is no difference between my B and your D, except that you have brought in the word "facts". In the gas bill scenario it is difficult to see what "facts" that were relevant could have been concealed.

[Bigdebtor]

But we STILL DON'T KNOW re Bank Charges - because even the SC did not clear it up - so the 6 years can't possibly have started yet - all we have to rely on just now is what tehj abnks tell us - and who can believe them?

 

It is the same as for the Credit Card charges - where the 6 years started with the OFT report in April 2007 - so we have until April 2013 to claim back ALL credit card default charges. Once we have a (suitable) verdict re bank charges then the 6 years will start - and we can go back either to year dot or until 1995 (not sure which though!).

 

BD

[Bookworm]

OFT report in April 2007

April 2006. ;-) Just for info.