Proving the banks knew the charges were unlawful- thereby negating The Limitation Act

[zootscoot]

Could possibly be statute barred if over six years old. I'm just going out now will give fuller advice later

[hagenuk]

I have a letter from my (ex) bank dated 1991 informing me that I will not be receiving a refund of a charge made due to a cheque having been returned.

 

The final paragraph states.

 

It was therefore necessary to return the cheque for £xx in favour of XXXXX which was presented on (date) and I therefore do not feel that a refund of the Bank's standard fee for the return is justified in this case.

It is my understanding that a contractual term that requires a person in breach to pay a predetermined sum is a penalty clause, unless that sum genuinely relates to the amount of damage caused by the breach.

 

This was established in 1915 Ford Motor Co. v. Armstrong (1915) where Ford were charging dealers a sum of £250 if the dealer sold the cars at less than list price and the Court of Appeal decided the sum was arbitrary, bore no relation to the loss and did not need to be paid.

 

The wording above states quite clearly that I was not going to receive a refund of the "Bank's standard fee" which surely must be arbitrary and bore no relation to the loss and therefore did not need to be paid.

 

Therefore could it be argued that if the bank knew the fee was "standard" and indeed referred to it as such that the bank knew it was not a genuine pre-estimate of losses or actual losses and also knew it was unlawful? This would amount to concealment and we can use section 32(1)(b) of the Limitation Act 1980.

 

And even if they did not know then section 32 (1)© applies, which covers actions for relief from the consequences of a mistake.

 

Any thoughts on this Ladies and Gentlemen?

[JonCris]

zootscoot

 

Have already posted on this but I believe thread was removed

[JonCris]

zootscoot

 

You may find this useful

http://www.bailii.org/uk/cases/UKHL/2006/9.html

Reading this I think we would be able to rely on the recent OFT report as a time of knowledge

 

[andrew1]

I think you've found a diamond there Hagen. This is documentary proof that their charges were known 'at that time' to be no reflection of the ' actual ' cost but a plain penalty charge for being a bad boy. So what's changed? All that has changed is that the banks have just taken it for granted nobody actually takes much notice of the charge other than to think that as a " trusted fiducery" they must be right. WRONG ! enter BAG. Anyone with letters dating back with similar wording ought to pm Dave or BF with them - I'm sure they'll use them to full benefit. Well done for keeping it !

[PhantomReclaimer]

Phantom

 

Correct I would be in breach to you. However, you have not suffered a loss from this beach which would preclude you from suing. This is why the neighbour needs to be able to sue otherwise your agreement with me is simply meaningless.

 

 

Ageed, I could not sue for damages as I have no loss but could I sue and get an order for specific performance against you?

 

P.

[zootscoot]

The wording "standard fee" would certainly help show the charges amount to a penalty. Whether this would amount to concealment for s.32(1)(b) is less clear cut.

 

Concealment under s.32(1)(b) must relate to a concealment of the facts. Here the bank is quite open about the fact that they are charging you a standard fee what they are concealing is the fact that the the fee is unlawful. Concealment of the law is not sufficient to invoke s.32(1)(b).This is stated in the statutory provision itself and made clear in Williams v Fanshaw Porter Williams.

 

I think s.32(1)© should be a goer. In that the claimant makes the payment in the mistaken belief that the charge is lawful. The mistake of law bar was lifted in restitutionary claims in Kleiwort Benson v Lincoln County Council.

 

The actual issues involved are more complex and I have not studied restitution law for some time. These are inititial thought only. So don't take it as gospel. May look into further when have more time.

 

For now I'm being bullied into cooking tea!

 

Zoot

[PhantomReclaimer]

zootscoot

 

 

My follow up is this. If your stuck with a debt now in the possestion of DCA & say offer them 1/2 or 1/3 in full & final & they accept one must be able to assume that they are covering their costs & if so would it be right to then pay the agreed amount followed immeadietly by the sum of £1 as the consideration

 

You could agre to enter into a payment plan then offer a full and final settlement a few months down the line. Their acceptance (if they accept it) will create a binding contract because the change of payment terms is sufficient consideration.

 

P.

[hagenuk]

Far be it from me to keep you from the stove!

 

I am interested in this issue as the account in question was closed in 2002 but I had paid heavily over the years, 20 or so in fact up to that point. My interest therefore lies in attempting to claim back further than 2000.

[Guest NATTIE]

hegenuk i would be interested in you challenging the charges further back than 6 years using it as eveidence. Keep us posted, you may have a diamond lets hope its worth a stack load of dosh

[zootscoot]

All fed & watered!

 

Will take a fair few hours of research before any more definate answers- although you can never have a definate answer in law!

 

For s.32(1)(b) you may be able to claim the banks concealed the facts relating to how they calculated the charges. (Thereby preventing you from ascertaining whether they were lawful) I think I'm right in stating that the will not publish and have never published this info. Mr NatWest man (Or is it Mrs? - sorry!) may be able to help out here. You would have to establish that they had a duty to provide this info or that someone had asked for this info (prior to 2000) and had been refused.

 

Do you have statements going back that far as you are unlikely to get that info under a S.A.R - (Subject Access Request)?

[hagenuk]

I have some statements and also a bundle of other similar letters, sadly not all of them.

 

Regarding the DPA SAR, I was under the impression that the Data Protection Act is not time limited and as such the bank will be under legal oblilgation to provide me with all the information they hold on me?

[zootscoot]

Thanks for the link JonCris, not much use to bpakoue as his dispute involves a debt whereas Haward v Fawcett relates to negligence. Could be very useful in claiming charges back.

 

bpakoue,

 

If you have had no correspondence in relation to the debt for six years it is likely that the debt is statute barred. You have to be careful tho because any correspondence at all could restart the clock. If the claim is statute barred it is unenforceable and you can raise the Limitation Act in defence to any action bought against you.

 

It may also be worth doing a CCA request on the DCA. A debt that old is unlikely to have any original documentation so it could be unenforceable via this route.

 

The charges are likely to have been levied by HSBC and you would pursue HSBC for those not the DCA. You can claim even if the debt to DCA is unenforceable. It may be worth trying to claim statements but to be honest your chances of getting them for pre 2000 are pretty remote. The banks tend to only keep info for six years.

 

Hope this helps

 

Zoot

[zootscoot]

The vital part here is all the info they hold on you... I think most banks will only keep info for six years. Natweststaffmember may correct me if I'm wrong.

 

At least they only admit to holding six years worth!

[bp]

Thanks Zoot.

I think this may make a difference, HSBC sold my acc to a financial who in turn have instructed a DCA to recover the money does that mean that they will treat this as a new debt from the date it was sold to them?

 

They waited for that time before selling it also I've moved a few times in that period.

[zootscoot]

Ageed, I could not sue for damages as I have no loss but could I sue and get an order for specific performance against you?

 

Possibly, indeed Beswick v Beswick invoked this approach to get around the privity rule. However, specific performance is an equitable remedy - not available as of right but at the discretion of the judge.

 

You would be better off bringing a restitutionary claim based on total failure of consideration as I have not performed my side of the bargain. This action, however, lies outside of contract law and exists in the law of restitution.

 

Zoot

[zootscoot]

Bpakoue

 

Do you know the dates of sale? I'm not entirely sure if this does restart the clock. I'll do a bit of digging.

 

It may well be worth going down the CCA route. The fact that you have moved house may well complicate things under the Limitations route in any event.

[bp]

Zoot

Sold May this year.

 

Now that i think about, its a bit mad to think that even if i received the statements and made a claim, i would still have to pay this debt. so in the end, am i really recovering anything? unless the claim amount is greater then the debt.

[Glenn UK]

It may be worth trying to claim statements but to be honest your chances of getting them for pre 2000 are pretty remote. The banks tend to only keep info for six years.

 

 

I have today spoken to a former worker from the Abbey, funnily enough in the fiche dept. She told me the abbey has records going back to 1926.

 

I reckon that any established bank is likley to be similar.

 

HTH

 

Glenn

[Glenn UK]

Zootscoot

 

I seem to be following on your wake today.

 

I have definite data that abbey hold more than 6 years one board mmeber has given me info that he has been supplied with data from 1999 and anothe rhas told me that abbey hold data from around 1926.

 

Seems they are being less than frank with their information.

 

HTH

 

Glenn

[zootscoot]

Hiya Glenn,

 

1926.....Really or is that a typo?

 

I think (opinion only) they are obliged to hold for six years but I don't think there is a particular obligation to get rid at that point. Natweststaffmember(popuar today!) may be able to help out here?

 

Hagenuk

 

Its worth putting in a S.A.R - (Subject Access Request) you could make it clear in your letter you are particularly interested in years XXXX - XXXX and seeing what comes back. Incidentally I've seen a few posts from people who have claimed back further than 6yrs unchallenged.

[JonCris]

Thanks for the link JonCris, not much use to bpakoue as his dispute involves a debt whereas Haward v Fawcett relates to negligence. Could be very useful in claiming charges back.

 

bpakoue,

 

If you have had no correspondence in relation to the debt for six years it is likely that the debt is statute barred. You have to be careful tho because any correspondence at all could restart the clock. If the claim is statute barred it is unenforceable and you can raise the Limitation Act in defence to any action bought against you.

 

It may also be worth doing a CCA request on the DCA. A debt that old is unlikely to have any original documentation so it could be unenforceable via this route.

 

The charges are likely to have been levied by HSBC and you would pursue HSBC for those not the DCA. You can claim even if the debt to DCA is unenforceable. It may be worth trying to claim statements but to be honest your chances of getting them for pre 2000 are pretty remote. The banks tend to only keep info for six years.

 

Hope this helps

 

Zoot

 

Sorry Zoot did I put the link in the wrong place. I thought you had responded to a member who asked if they could claim back more than 6 years & siad you would research it.

 

As you may recall I have mentioned this on a number of previous occasion that I think you can on the basis of knowledge overcome the 6 years limit. In fact I think I gave BF a link to the particular sec of the Statute of Limitations Act 1980 which in our circumstance covers an out of time claim & is supported by Haward v Fawcett

[Guest NATTIE]

zootscoot- I KNOW statements can be ordered from futher than 6 years because everytime we order copy statements there is a warning that states that statemnts over 7 years are printed on a Saturday, However data on one system readily available at branch will go back to when NW had computers in branches, 1991 I believe.

[zootscoot]

Oooooooo that is nice to know! I am just about to do a SAR on Natwest and I know I have LOADS of charges pre - 2000 (student years cough cough!!). Do you know if they send this automatically on a SAR or do you need to specifically request it?

 

Hagenuk looks like you could be in luck after all.

[Guest NATTIE]

Yes and No. Let's put it this way if you ask for a full SAR you should get the info. The reason I say yes and No is because someone PM'd me with details that were on the info that would date 1991 to Oct 2002. Don't know if they had full SAR or wimply 2000 onwards. Try a full SAR for everything I mean not just charges