HSBC Loan PPI

[caro]

Then costs shouldn't be an issue being a small claim. I just wondered if they may have made an offer without prejudice save as to costs, which they might have tried to argue for if you didn't win as much as they offered in court, but as they haven't then this letter is nothing more than a last minute attempt to intimidate you into pulling out before going to court.

 

Don't be surprised if they send someone to the court to make you an offer before the hearing. Unless they agree to settling for the full amount including interest with no strings attached tell them you want the judge to decide. If you have time prepare a list of your wasted costs and tell them you want that too.

[moose73]

what was the recent high court case that has been in the media where the banks are now having to pay back ppi? any links for this?

[citizenB]

Do you mean the Banks Challenge against the FSA, which they lost ?

 

If so, I have a link somewhere.. I will go and find it for you.

[moose73]

Do you mean the Banks Challenge against the FSA, which they lost ?

 

If so, I have a link somewhere.. I will go and find it for you.

 

yes

[citizenB]

http://www.consumeractiongroup.co.uk/forum/content.php?741-April-Newsletter

 

Most of the information you will need is linked in the first article in the CAG Newsletter above.

 

I am just looking for the actual judgment.. BRB

[citizenB]

http://www.bailii.org/ew/cases/EWHC/Admin/2011/999.html

 

Judgment in the link above.

 

You might also find it helpful to have a read through the following thread from around post.... #101

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?290434-BBA-v-FSA-PPI-Judicial-Review/page11

 

HTH

[citizenB]

moose on what grounds are HSBC defending ? Can you point me to the post... Sorry, I simply dont have time to read the whole thread

[moose73]

this is their argument:

 

DEFENDANT'S SKELETON ARGUMENT

FOR HEARING ON 13 JUNE 2011

 

Suggested pre-reading (15 mins):

• Statements of case
  
• Witness statement of Daniel Chumbley in support of D 's application
  
• Witness statement of C in opposition to D's application
  

 

Introduction

1. This is D's skeleton argument for its application (dated 15 March 2011) for

C's claim to be struck out or for summary judgment.

 

2. In summary, C has no reasonable grounds for bringing the claim because it is

statute barred. The claim relates to a payment protection insurance (PPI')

Policy that C held in respect of a loan that was both entered into and repaid

more than six years before these proceedings were issued (2 June 2010).

 

C's claim

3. C has held two fixed sum credit agreements with D:

3.1. A loan entered into on 12 April 2001 and repaid in full on 19

December 2001 ('the First Loan').

moose v HSBC

3.2. A loan entered into on 19 December 2001 and repaid in full on 23

June 2004 ('the Second Loan,).

 

4. C entered into a PPI policy in respect of the First Loan, but not the Second

Loan.

 

5. The principal allegation in C's claim is that he was told that the PPI policy in

respect of the First Loan was 'absolutely necessary in order to proceed to

obtain the associated credit' when it was not. Although the particulars

include other allegations, his core claim is for damages for misrepresentation.

 

6. It is D's case that C would have been made aware at the time that the PPI

policy was optional and not a requirement for the loan.

 

C's claim is bound to fail

 

7. The limitation act 1980 provides:

 

2 Time limit for actions founded on tort

An action founded on tort shall not be brought after the

expiration of six years from the date on which the cause of

action accrued. ..

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought

after the expiration of six years from the date on which the

cause of action accrued.

 

8. The limitation period applicable to an ordinary misrepresentation claim is

accordingly six years after the cause of action accrued. This would have been

when the representation had been made and C entered into the PPI agreement.

 

9. The cause of action therefore accrued on 12 April 2001.

C appears to accept that, under the usual time limits, his claim would be

statute barred. He instead relies upon the postponement of the limitation

period under s.32 of the Limitation Act 1980 on the grounds of alleged

concealment.' This section provides:

32 Postponement of limitation period in case offraud,

concealment or mistake

(1) Subject to [subsections (3) and (4A)] below, where in

the case of any action for which a period of limitation is

prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant;

or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a

mistake;

the period of limitation shall not begin 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.

References in this subsection to the defendant include

references to the defendant's agent and to any person

through whom the defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate

commission of a breach of duty in circumstances in which it

is unlikely to be discovered for some time amounts to

deliberate concealment of the facts involved in that breach

of duty.

 

10. C's claim does not fall within this section. Even assuming, for the purposes of

this application, that D's agent did tell C that he was required to take out the

PPI Policy, there was no further concealment by D. C could, with reasonable

diligence, have determined, from the documents that were provided to him

when he took out the PPI Policy, that that policy was optional:

10.1. He signed a 'creditor protection declaration' which provided that

I have decided to take loan protection.

I have received a copy of the loan protection policy

document.

I am aware of the eligibility criteria, terms and

conditions and exclusions applicable to the policy.

 

10.2. The credit agreement itself provided: 'I/We have decided to take

Personal Loan Protection'

10.3. The

terms and conditions

ofthe PPI Policy made clear that he

could terminate the Policy within 30 days of opening it, without the

loan also being cancelled. The introduction provided:

If you decide you do not want this protection,

please return this policy document to your HSBC

Bank within 30 days of receiving it. If you have not

made a claim during those 30 days, we will cancel

the cover and refund any premium you have paid.

 

11. Further or alternatively, at the very latest, C could have determined that the

PPI policy in respect of the First Loan was optional when he entered into the

Second Loan agreement (19 December 2001), which was still over six years

before he issued this claim. He did not enter into a PPI agreement in respect of

this loan.

 

12. It is further to be noted that in his witness statement C does not put forward

any case as to when he could, with reasonable diligence, have discovered the

alleged misrepresentation.

 

Conclusion

13. C's claim was issued over six years after the accrual of cause of action he now relies. The limitation period has not been postponed. The claim is therefore

statute barred and should be struck out.

[moose73]

is it bound to fail as they say?

[dx100uk]

they are just trying to frighten you off

or butter you up to accept a short settlement outside the court

 

they'll cough up

 

bear-in-mind hfc were fined £1.8M for exactly your situation

 

stick by your guns

 

dx

[the_shadow]

There are only two certainties in life that I know of.

 

Your'e born

You die

 

Everything in between just happens...

 

No being serious, the judge on the day will decide on the facts they are given, personally I think the argument that a) Ok, we may have misled the lender that he needed PPI to get the loan BUT he signed a statement saying it was optional and therefore no deceit or undisclosed facts exist and ergo this claim is Statute barred is weak. Fact is if you are told that an optional insurance is needed to get the loan you'll take the "optional loan" and by its very definition if fails to be "optional". Just my opinion tho.

 

As stated before costs are not normally a matter for small claims and caro has sought clarity on HSBC offers which you say have not been made, therefore no costs *should* be awarded. Just my opinions tho...

 

S.

[moose73]

the bit i am little confused on: (with respect to the limitations act) is it a mistake or misrepresentation or both?

[the_shadow]

the bit i am little confused on: (with respect to the limitations act) is it a mistake or misrepresentation or both?

 

If they knew its misrepresentation, if they didnt its a mistake

 

Thats how I would interpret it.

 

S.

[caro]

If you were told that the loan was dependent on you having PPI, then in my opinion (for what it's worth) it's misrepresentation. However you signed it in the mistaken belief that this was acceptable. Somehow I doubt that you will have that in writing, so it's your word against theirs.

 

What you need to do is point out the faults in their case, such as the branch where this was meant to have been taken out, then hopefully it should make the judge doubt whether they're telling the truth about other things, such as whether they gave you an option on it, or explained your right to take out PPI elsewhere. At that time you had no reason to doubt what they said, but since the issue of PPI has been subject to widespread investigation and press attention, you now realise that they had no right to do that.

[moose73]

one of the judges directions is "costs in the application"

 

what does this mean?

[caro]

Can you post up all the directions please. Hard to tell out of context.

[the_shadow]

I believe its costs reserved in the case, i.e. they are to be decided on at the final hearing so costs are not decided on the actual application hearing but rather reserved to the end of the claim and then I presume a judge will decide on whether any party has acted unjustly or unreasonably and then on that basis punish them with costs.

 

but I'm going from memory here

 

S.

[moose73]

Can you post up all the directions please. Hard to tell out of context.

 

before deputy district judge xxxxx sitting at Preston County Court etc

 

upon hearing the claimant in person and counsel for the defendant

 

and upon reading the file of papers, the defendant having failed to comply with directions on 18th Jan and the skeleton argument was only received today.

 

it is ordered that

 

1. application adjourned to 11th July 2011

 

2. Unless the defendant shall by 4pm 27th June 2011 file and serve a witness statement exhibiting such documents as provided for in the order of 18th jan 2011, the defence shall be and is by this order stuck out.

 

3. costs in the application.

 

only hsbc are being unreasonable in their conduct for this case.

[caro]

Just found this.

 

 

'Costs in the application' usually appears as a provision at the end of a set of directions made by the judge during the course of a case. Most cases don't go straight to a final hearing - there is at least one 'directions appointment' along the way.

 

'Costs in the application' means "At this stage I'm not ordering either party to pay the other's costs of today's directions appointment. If, at the end of the case, a costs order is made, then the costs of today are to be included in the cost...

 

Have you got a list of your own costs?

[moose73]

Had the hearing today at court. they turned up with a solicitor, counsel and witnesses. should have started at 10am but ended up 11.40 before we went in.

for 2 hours it was mainly the their argument for striking out due to limitations act, then it went on to my witness statement and them asking me questions and catching me out with diffeneces on what I said in POCs/ witness statement and the evidence. I had used certain items in my POCs which got kicked out staright away like FSA handbook and consumer credit act, so ended up just being a misrepresentaion case. I had relied on clauses from other POCs which I didn't really understand, and they blew them appart.

 

Then the judge called lunch for 1 hour. On return the judge said that she had been reading everything again, and ruled against me due to lack of evidence for a misrepresentation case. they tried to claim their costs by saying I had acted unreasonable by bringing the claim against them, but she ruled against that.

 

so that is than, lost, but no (further) costs.

 

I would advise anyone thinking of going the court route, to think carfully and be 100% sure that you have a good case. Mine in hindsight was weak. I kept going think (dut to others on here) thinking they they would settle before the hearing, and it would cost them too much to defend etc, but as is now been proved they have unlimited resources, and they are not bothered about what it costs them. They will fight you all they way. Maybe this is just hsbc, as MBNA paid me out before court.

[citizenB]

Had the hearing today at court. they turned up with a solicitor, counsel and witnesses. should have started at 10am but ended up 11.40 before we went in.

 

for 2 hours it was mainly the their argument for striking out due to limitations act, then it went on to my witness statement and them asking me questions and catching me out with diffeneces on what I said in POCs/ witness statement and the evidence. I had used certain items in my POCs which got kicked out staright away like FSA handbook and consumer credit act, so ended up just being a misrepresentaion case. I had relied on clauses from other POCs which I didn't really understand, and they blew them appart.

 

Were there any differences on the POC/Witness statement ?

Then the judge called lunch for 1 hour. On return the judge said that she had been reading everything again, and ruled against me due to lack of evidence for a misrepresentation case. they tried to claim their costs by saying I had acted unreasonable by bringing the claim against them, but she ruled against that.

 

so that is than, lost, but no (further) costs. This is good news, obviously the Judge didnt believe you had acted unreasonably

I would advise anyone thinking of going the court route, to think carfully and be 100% sure that you have a good case. Mine in hindsight was weak. I kept going think (dut to others on here) thinking they they would settle before the hearing, and it would cost them too much to defend etc, but as is now been proved they have unlimited resources, and they are not bothered about what it costs them. They will fight you all they way. Maybe this is just hsbc, as MBNA paid me out before court

.

 

Were your reasons for claiming a refund the same for MBNA as you used in the HSBC claim ?

 

HSBC (as will a lot of the banks) fight any claim that looks weak.. they will want as many "wins" as they possibly can in order to frighten off others starting the process.

 

Without question, a claim shouldnt be started unless the claimant is absolutely sure of their ground work.

 

I am truly sorry to hear that you lost, the good news of course that you werent lumbered with their costs.

[moose73]

there were difference with mbna and hsbc , I think mbna were on dodgy ground from the outset due to the way it was laid out, and they paid out without much fight.

 

I'm just glad its finished now, as it was getting me down.

[the_shadow]

Sorry to hear this Moose

 

At the end of the day its down to each of us to make our own choices and paths, Caggers have the opportunity of drawing on other peoples experiences and cases but I dont think any of us would suggest someone uses a defence/claim when they didnt understand what they were claiming, its down to the claimant to prove the case, this has always been the norm and as such if your particulars of claim werent understood by yourself then there is no hope to standing up to cross examination

 

I think your advice about being 100% sure is spot on.

 

....But the upside is you werent seen to be unreasonable and therefore not hit with the costs of the opposing council + witnesses.

 

S.

[caro]

Sorry to hear this moose. I think everything's been said, but well done for giving it a shot.

 

Do you know who the lawyers were and the witness?