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

[Aequitas]

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?

 

I think you are missing my point.

 

Let's take two imaginary scenarios:

 

Scenario A

 

1. In 1990 XYZ Bank sues Mr Smith for bank charges. The court rules that bank charges are lawful.

 

2. Between 1995 and 2004 Mr Jones pays bank charges because he believes, having regard to the decision in XYZ Bank v Smith, that bank charges are lawful.

 

3. In 2005 the decision in XYZ Bank v Smith is overruled.

 

4. The limitation clock now starts to run and Mr Jones has 6 years to sue for the refund of bank charges. He can claim a refund of charges going back to 1995 because the rule in the Kleinwort Benson case applies.

 

Scenario B

 

1. XYZ Bank v Smith never happened.

 

2. Mr Brown has been paying bank charges for the last 10 years in the belief that they are lawfully payable.

 

3. He logs onto CAG and decides to sue his bank for a refund.

 

4. He wins.

 

5. Since XYZ Bank v Smith never happened Mr Brown's case could not overrule it. It only established what the law always was. It did not suddenly become the law when the court made its decision. Mr Brown must be deemed throughout the 10 year period to have been able to discover what the law was even if he may have had difficulty in discovering it. He can only claim a refund of charges paid during the last six years because the rule in the Kleinwort Benson case does not apply.

 

*

 

The crucial difference between the two scenarios is that in scenario A Mr Jones paid on the basis of settled law which was overturned, but in scenario B Mr Brown did not.

[hsbcfiddled]

I think you are missing my point.

 

Let's take two imaginary scenarios:

 

Scenario A

 

1. In 1990 XYZ Bank sues Mr Smith for bank charges. The court rules that bank charges are lawful.

 

2. Between 1995 and 2004 Mr Jones pays bank charges because he believes, having regard to the decision in XYZ Bank v Smith, that bank charges are lawful.

 

3. In 2005 the decision in XYZ Bank v Smith is overruled.

 

4. The limitation clock now starts to run and Mr Jones has 6 years to sue for the refund of bank charges. He can claim a refund of charges going back to 1995 because the rule in the Kleinwort Benson case applies.

 

Scenario B

 

1. XYZ Bank v Smith never happened.

 

2. Mr Brown has been paying bank charges for the last 10 years in the belief that they are lawfully payable.

 

3. He logs onto CAG and decides to sue his bank for a refund.

 

4. He wins.

 

5. Since XYZ Bank v Smith never happened Mr Brown's case could not overrule it. It only established what the law always was. It did not suddenly become the law when the court made its decision. Mr Brown must be deemed throughout the 10 year period to have been able to discover what the law was even if he may have had difficulty in discovering it. He can only claim a refund of charges paid during the last six years because the rule in the Kleinwort Benson case does not apply.

 

*

 

The crucial difference between the two scenarios is that in scenario A Mr Jones paid on the basis of settled law which was overturned, but in scenario B Mr Brown did not.

 

 

Then why have the banks already paid people beyond the six year limitation?

[Aequitas]

Then why have the banks already paid people beyond the six year limitation?

 

What the banks may or may not have does does not affect the legal position. In fact, as things stand, they need not have paid out at all. As I asked before, since, as things stand, they paid out in a mistake, can they ask for their money back? Sauce, goose and gander?

 

Look. I am not saying I am right, just putting forward an argument. I think my argument has some merit, but I am open to being persuaded that it is fatally flawed. I urge people to consider carefully the summary of the case as set out above:

 

· 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.

 

There can only be a new decision if there was an old one.

[hsbcfiddled]

What the banks may or may not have does does not affect the legal position. In fact, as things stand, they need not have paid out at all. As I asked before, since, as things stand, they paid out in a mistake, can they ask for their money back? Sauce, goose and gander?

 

 

Good job then that they didnt admit that their charges were wrong but they wanted to pay us back with interest out of the goodness of their BLACK hearts.

My question is why pay beyond six years if you dont believe what you have done is wrong within six years?:confused:

Do you think the Goverment will help us out if we have to pay them back? LOL.

[rdm2006]

What the banks may or may not have does does not affect the legal position. In fact, as things stand, they need not have paid out at all. As I asked before, since, as things stand, they paid out in a mistake, can they ask for their money back? Sauce, goose and gander?

 

The answer to this one is NO. they did not refund the monies they maintained that the charges were correct and gave a gesture of goodwill.

 

At least they had a choice!

Edited March 2, 2010 by rdm2006

[HomerJSimpson]

What the banks may or may not have does does not affect the legal position. In fact, as things stand, they need not have paid out at all. As I asked before, since, as things stand, they paid out in a mistake, can they ask for their money back? Sauce, goose and gander?

 

 

 

Glad HSBC paid my £1423 as a gesture of goodwill with no reference to any legal position:-D

 

They have written since the Supreme Court decision and told me that they are unable to consider my complaint. So the Sony LCD tv in my living room, bought with their GOGW is a figment of my imagination:-D

 

Many thanks HSBC if you're watching.

[rdm2006]

Also NEW is not just used to describe an update of something old it is also something that is Unique which did not exist before

[Aequitas]

Also NEW is not just used to describe an update of something old it is also something that is Unique which did not exist before

 

Please look at the words of the summary again.

 

· 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.

 

In this context "any new decision" must mean "a decision that overrules a previous decision". If it does not, then the reference to "subsequently overturned" in the first paragraph does not make sense.

[rdm2006]

· 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/unique decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

Does it make sense now ?

[JonCris]

The answer to this one is NO. they did not refund the monies they maintained that the charges were correct and gave a gesture of goodwill.

 

At least they had a choice!

 

They never admitted liability & in fact hardly ever went to court so can't demand repayment Hung by their own petard:D

[Aequitas]

I looked at the Kleinwort Benson and decided I may read it another day as the report is very long. However you can find these words in the second paragraph:

 

when established law is changed by a subsequent decision of the Courts, money rightly paid in accordance with the old established law is recoverable as having been paid under a mistake of law

 

The words emphasise the need for there to have been a change in the law. If you wish to obtain the benefit of section 32 (1) of the Limitation Act 1980 you need to show that at some time more than six years ago there was legal authority that bank charges were lawful. There is no authority in the sense that there is a case that says so - if there were we would all know about it! Since there is no authority that says that bank charges are lawful, if a court decides tomorrow that they are unlawful there is no case that has been overruled. The law is deemed always to have been that bank charges were unlawful even if we believed to the contrary.

Edited March 2, 2010 by Aequitas

[Aequitas]

They never admitted liability & in fact hardly ever went to court so can't demand repayment Hung by their own petard:D

 

Are you saying the payments are a gift then?

[rdm2006]

Are you saying the payments are a gift then?

 

 

is that not where the saying has derived from i.e. at the end of a dispute (sometimes war) a gift was given (sometimes by both parties) as a gesture that no grudge was held and that goodwill now prevailed.

 

one well known gift was a horse given by the the citizens of Troy (The Trojans)

 

Off topic i know, but the saying "has the cat got your tongue?" has nothing at all to do with felines.

 

it is derived from the navy - when a sailor (for whatever reason) received the whip (called the cat of nine tails - because it was nine whips bound in one handle) he would often be very quiet for some time or even days. hence "has the cat got your tongue"

Edited March 3, 2010 by rdm2006

[atj26589]

Aequitas

Just out of interest your first name is not Angela is it? and your surname wouldn't be Knight......just a thought

[rdm2006]

Aequitas

Just out of interest your first name is not Angela is it? and your surname wouldn't be Knight......just a thought

 

Aequitas is considered to have two meanings in rome. The first was the legal concept of equity. The second definition was fairness between individuals.

 

OMG i have swallowed a dictionary lol

Edited March 3, 2010 by rdm2006

[Bookworm]

Are you saying the payments are a gift then?

As I have already answered in the other thread, "gesture of good will" is the sentence used in each and every settlement they paid out, so yes, I believe "gift" sounds about right in this instance.

[rdm2006]

hi bookie wookie

[Bookworm]

Hi, RDM! Just off to bed after kicking DH's backside at Scrabble, thought I'd check in briefly, lol. Nighty night all!

[rdm2006]

lol bookie Haven't spoke to you in ages and your pm's are turned off

 

But good night and hope you and yours are all well

[Aequitas]

As I have already answered in the other thread, "gesture of good will" is the sentence used in each and every settlement they paid out, so yes, I believe "gift" sounds about right in this instance.

 

Right. Did you know that, unless provided for in its constitution and otherwise except in certain cases, a company cannot make gifts? One of the exceptions is that the gift is for the good of the company. It is clearly arguable that paying off someone who is suing you can be for your own good, but if we look at the situation globally, can it have been to any bank's good to have paid out millions when, at least as things stand, they had no need to pay out? What if a bank shareholder took a bank to court and got a declaration that such payments were ultra vires?

 

You may think this is a bit far fetched and you would probably be right. I think it has to be the case that businesses can take decisions to settle disputes without the matter going to trial. However, it would not be a complete surprise if a court found that a bank had acted recklessly by settling a whole raft of cases where there was no need to settle.

[Aequitas]

Aequitas

Just out of interest your first name is not Angela is it? and your surname wouldn't be Knight......just a thought

 

Er... no

 

Not female

 

Not a Conservative

 

Not a spokesman for the banks

 

Let me put this to you:

 

If I am on your side in a legal dispute and I do not think the law is in your favour, do you think I should:

 

(a) tell you the law is not in your favour?

 

(b) tell you the law is in your favour?

 

Is there is to be no place on this forum for someone who supports the cause but who expresses concern that solutions offered are unworkable when he feels it to be the case?

[Bigdebtor]

I still believe we will have 6 years to reclaim ALL bank charges back once we win in court - probably in Scottish Sheriff Court in June 2010 first.

 

WE are only paying now because the banks say we must pay and their charges are fair. If they are shown to be lying then that is fraud and we are due every penny back along with interest compensation etc.

 

It is now clear that we have 6 years from the date of the OFT report in April 2006 to reclaim credit card charges- so surely the same must apply to bank charges once we get a court ruling in our favour?

 

I know logic and law don't go together - but I do believe the limitation act 1980 does allow for the above - as I spelled out by reproducing bits of the act much earlier in this thread.

 

BD

[Aequitas]

I still believe we will have 6 years to reclaim ALL bank charges back once we win in court - probably in Scottish Sheriff Court in June 2010 first.

 

I have tried to show by explaining my point in different ways that this may not be the case. I have failed to convince you that there may be some merit in my argument. Fair enough.

 

WE are only paying now because the banks say we must pay and their charges are fair. If they are shown to be lying then that is fraud and we are due every penny back along with interest compensation etc.

 

With respect, you have fallen into the equivocation trap. Indeed, equivocation has in large measure led to the current state of affairs. Sitting in a pub we can all agree that bank charges are penal or unfair or that banks engage in fraud. However, we now know that bank charges are not contractual penalties. Whether, and if so which, bank charges are "unfair within the meaning of the UTCCR" has yet to be resolved. The banks have not engaged in fraud in any legal sense of the word.

 

It is now clear that we have 6 years from the date of the OFT report in April 2006 to reclaim credit card charges

 

Please draw my attention to where this is made clear.

 

I know logic and law don't go together - but I do believe the limitation act 1980 does allow for the above - as I spelled out by reproducing bits of the act much earlier in this thread.

 

I note you are in Scotland. The Limitation Act 1980 does not extend to Scotland. It appears you have your own separate limitation legislation, the Prescription and Limitation (Scotland) Act 1973 and the Prescription and Limitation (Scotland) Act 1984. How the law in Scotland compares with the law in England and Wales I have no idea.

[fergal71]

june 2010 is just another carrot in my opinion and will not resolve anything and will not open the flood gates.... each case will still have to be taken to court and the govan case just holds up thousands of others waiting for outcome.... I bet my hat eating that it does not open floodgates and that all individual cases still need to be challenged.... like I have said many times we need to bring a bank to its knees and challenge the government especially at this time when they need our votes. what needs to happen to the British public before we do something about it?

 

MP's stealing expenses

Lords selling Laws to companies

Banks stealing from poor to make sure in credit customers dont pay

Credit reference agencies having no legal right to hold our data?

0845-0870 numbers

late payment fees

overlimit fees

contact centres moved to india etc ( poor customer service to save money)

Banks bailed out and brought country to its knees yet still pay huge bonuses to keep best people( which people are these, those that made mistakes in first place)

justice for victims and not criminals

 

I am sure there are many more?

 

what is it going to take before we collectively do something about it....

 

voting for the 2 major parties is not going to change things....

 

asking them to listen is not going to work either

 

The only thing that will work is direct action that will make them listen????

 

In this day of facebook, twitter and internet we have more power than ever before yet we seem less willing to utilise that power and more willing to let somebody else try and then decide if we can try( govan case)

 

frustrated ( australia for me , I think)

[rdm2006]

Er... no

 

Not female

 

Not a Conservative

 

Not a spokesman for the banks

 

Let me put this to you:

 

If I am on your side in a legal dispute and I do not think the law is in your favour, do you think I should:

 

(a) tell you the law is not in your favour?

 

(b) tell you the law is in your favour?

 

Is there is to be no place on this forum for someone who supports the cause but who expresses concern that solutions offered are unworkable when he feels it to be the case?

 

 

Yes ...I have always imagined you to be male don't know why, I just have.

 

I hope I have not offended you in any of my posts, I only wanted to show that when you have law which is widely open to interpretation written in a language which is also widely open to interpretation no wonder the law lords make mistakes of law but if they cant work it out then what chance do we have? 8-) :grin:

 

PS was my interpretation of your name correct ???