Barclaycard : S32.1980 LIMITATION ACT

[HALIBUNNY]

Hi good people. I see that if you are making a claim on penalty charges more than 6 years old people are making reference to the above act in court claims. Can someone kindly explain to me how they are applying this section to making a claim for unfair penalty charges or what would they say in court in layman language using this to back up their claim as to why it's ok to go back futher than 6 years. I would be most grateful because I just don't understand its application to this!!

 

Many thanks....

[slick132]

Hi Halibunny,

 

Basically the Limitation Act 1980 sets out time lines within which you can normally pursue a claim (whether by court action or just seeking moneys due informally). In the case of seeking a refund of penalty charges from a bank, the time limit is 6 years.

 

If you can show that there has been concealment by the bank regarding the unlawful nature of their charges, you can claim amounts going back further than 6 years. You can start a claim within 6 years from the date you learned of the unlawfulness of their charges. Section 32 (1) b is the authority for this. [EDIT - This is slightly wrong. See my comments in post #8 below.]

 

For example, if you became aware in July 2010 that the penalty charges are unlawful, you would theoretically be able to start proceedings anytime up to July 2016.

 

However, a court might expect you to start reclaiming as soon as reasonably possible after you discover that you are owed money. If you left it a few years after you became aware that the penalties were unlawful, a court may decide that you should have acted sooner.

 

Our Library has the Act here so you can check out the relevant sections - http://www.consumeractiongroup.co.uk/forum/content.php?434-The-Limitation-Act-1980

 

If you have statements going back beyond 6 years, then you should get on with reclaiming all penalty charges to date. Claim Interest in Restitution at the a/c's contractual rate, compounded, to maximise you claim.

 

If you don't have the older statements, BC will not provide any beyond 6 years from when you request them with an SAR.

 

8)

Edited December 4, 2011 by slick132
Wrong section of s32(1) of the Limitation Act

[HALIBUNNY]

Thanks for this. I have all my info going back 20 years in some cases. Know about the interest stuff ta. So you can imagine there's going to be some big claims....

 

1.Back to the Act. Isn't it just a red herring in some ways? The issue is how far can you go back making a claim? The act doesn't tell you how many years you can go back and I don't know a law which puts a timescale on it. As I understand it, the Act is only telling us how long we have got to start a claim once we realise things have been concealed...In addition,as I understand it, banks are telling us we can only go back 6 years by reference to the Act but the Act does not say that! Am I correct??!! If I am correct, hey presto, I know what I'm talking about.....whoopee..

 

Finally, how do we show there was concealment by the banks of the unlawful nature of their penalty charges?

 

Many thanks for your prompt response Slick. You're a good dog...

[slick132]

Hi Hal,

 

My understanding (though I'm not legally qualified) is that s.32 gives you the right to claim back further than the normal 6 year limit.

 

It does not say how far, so you can assume there is no limit.

 

You've realised now, or recently, that BC's charges are unlawful and the unlawful nature of their charges was concealed by them. You are therefore entitled to claim back all charges plus interest in restitution.

 

The Court Bundle contains what you require for a normal credit card charges reclaim. I think it already includes mention of the fact that the unlawful nature of the penalty charges was concealed by the bank. But check on this when preparing your Bundle.

 

In addition, you need to include with your Bundle:-

 

1. A summary of the case of Sempra Metals to address the issue of interest in restitution.

 

2. The section of the Limitation Act 1980 which addresses your right to claim back further than 6 years due to concealment.

 

Finally, how do we show there was concealment by the banks of the unlawful nature of their penalty charges?

Your Bundle will do this but, in essence, you were charged unlawful penalties and you didn't realise this at the time.

 

8)

[slick132]

Use the Credit Card charges reclaim letter here for your Prelim Letter and your LBA - http://www.consumeractiongroup.co.uk/forum/content.php?562-Credit-Store-Card-Letter-Template

 

Also, see here for important info about WHO to sue when dealing with BC - http://www.consumeractiongroup.co.uk/forum/showthread.php?173450-Use-the-right-name-when-Filing-against-BC

 

When you go back through your older statements, I'd be interested to know the date of the earliest penalties you can find.

 

[dx100uk]

agreed slick

 

dx

[HALIBUNNY]

Hi. Been off this forum a long time. Can someone give me links to preliminary letter, LBA, compound interest calculator and the Sempra metals summary for interest in restitution. I have spent about 3 hours trying to find this info and am finding it impossible with links not working. So I would be eternally grateful for help with these linls so I can get cracking...At last....lol

 

Thanks

 

Halibunny

[slick132]

Hi Halibunny,

 

Before I give any of the links you need, I need to correct something I got wrong in post #2 above. I referred to use of s.32(1)(b) regarding concealment. This is difficult to prove.

 

Instead you will rely on s.32(1)© regarding payments made mistakenly.

 

Prelim Reclaim letter which you'll also use for your LBA - http://www.consumeractiongroup.co.uk/forum/content.php?605-Credit-Store-Card-Letter-Template

 

Spreadsheet for claiming interest in restitution - http://www.shweb.pwp.blueyonder.co.uk/interestcalcs.xls

 

I suggest you change the rate to 24.9% on the spready. This is a nominal rate which BC have been paying recently as interest in restitution.

 

This info is available for all to see in the Library - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

Re the summary of the Sempra Metals -v- Inland Revenue Commissioners case - you'll need to look for one that is suitable on the web.

 

Also, if you're claiming charges older than 6 years, you need to refer to the Limitation Act 1980, s.32(1)©. Case law for this is Kleinwort Benson -v- Lincoln City Council.

 

You can mention in your Prelim Letter that you are:-

 

1. Claiming beyond 6 years by virtue of s.32 of the Limitation Act 1980.

 

2. Claiming interest in restitution as per the case of Kleinwort Benson -v- Lincoln City Council.

 

[HALIBUNNY]

Great. Many thanks. I will get cracking tomorrow.....I did not know that the lba was now being used as a preliminary letter as well. Are we not making any reference to the unlawfulness of penalty charges with any reference to the law anymore????

 

Hal

[slick132]

Prelim and LBA - that's been the case for ages now.

 

There's less emphasis on Unlawful Penalties and now reliance on Unfairness using UTCCR.

 

Have a look at the BC POC's which may give a clearer idea of what we rely on now.

 

[HALIBUNNY]

Excellent. Thanks very much.

[andydd]

Has S32 been used successfully in cases like this ?

 

I used it in a small claims court, I had been overpaying ground rent on my flat at a rate of £45 per year, some years back i questioned this and was sent an agreement that changed the ground rent amount, but some years later i discovered that this agreement didnt exisit, the defendant admitted a 'mistake' which was good enough for S32 to apply (although I could of argued on grounds of fraud or maybe concealment).

 

Anyway I won and the 8% interest going back approx 14 years added upto quite a bit

 

Andy

[ukaviator]

I went back to 1996 with First National which is now GE Money.

 

Loyds loan PPI back to 2001.

 

Lloyds credit card charges back to 2002.

 

Capital One card charges back to 2004.

 

It does work but be careful asking for high APR rates on top of your refunds. Capital One for instance will normally pay out the purchase rate of interest. APR's at 25% may make them send in a Barrister to fight the claim. This has happened to a few, who then ended up with £5000 in costs so be careful.

[HALIBUNNY]

Thanks Andy and UK aviator. Do you know on what grounds a Barrister might dispute a high claim and win?.....Do barristers

 

Also has anyone added statutory interest of 8% on top of APR interest IF having to put a claim to court?

[andydd]

Why not avoid the risk and just claim the 8% ?

 

Andy

[slick132]

If a defence was mounted, it would centre on the Limitation Act seeking to prove the charges are Statute Barred. They would also contest interest being claimed in restitution.

 

As UKA says above, they may be willing to repay interest charged on the charges but may contest a claim for int't in restitution at a higher nominal rate.

 

You can reclaim the charges plus the actual interest that was charged on the default charges, plus s.69 Stat'y Int't at 8%. The advanced spreadsheets will assist you with this.

 

Why not avoid the risk and just claim the 8% ?Andy

Because the benefits can be considerable when seeking restitutionary compound interest.

 

For example, a £20 charge from June 2001 to Dec'r 2011; 24.9% nominal compound interest. This gives rise to interest of £250 giving a total claim of £270.

 

Barclaycard have been repaying this routinely, before the case gets to court, in cases over the last few years. Other banks, such as Capital1 would defend such a claim at a court hearing.

 

[andydd]

If a defence was mounted, it would centre on the Limitation Act seeking to prove the charges are Statute Barred. They would also contest interest being claimed in restitution.

 

As UKA says above, they may be willing to repay interest charged on the charges but may contest a claim for int't in restitution at a higher nominal rate.

 

You can reclaim the charges plus the actual interest that was charged on the default charges, plus s.69 Stat'y Int't at 8%. The advanced spreadsheets will assist you with this.

 

 

Because the benefits can be considerable when seeking restitutionary compound interest.

 

For example, a £20 charge from June 2001 to Dec'r 2011; 24.9% nominal compound interest. This gives rise to interest of £250 giving a total claim of £270.

 

Barclaycard have been repaying this routinely, before the case gets to court, in cases over the last few years. Other banks, such as Capital1 would defend such a claim at a court hearing.

 

 

But surely you then run the risk of being seen to try and make a large profit which (some) judges may take a dislike too.

 

In my case I mentioned I was more than happy that I received the overpaid amount £540 and 8% interest bought the total to just over £1000, of course though there was no option of claiming more than 8% for me. Still I was very please as I was up against a highly paid solicitor and found out all the S32 stuff myself and the defendant was totally confused and made an arse of himself especially since his counterclaim was rubbish too.

 

Andy

[slick132]

Hi Andydd,

 

Apologies to Halibunny for this hijacking.............

 

There is no large profit being made. Claiming interest in restitution is a means of taking back from the bank not only the money they took from you unfairly, but also the profits that they have made in their business with the use of your funds.

 

Judges rarely get to decide on BC cases as they currently pay back your money long before the case gets to court.

 

If you are happy with your win including 8%, that's great and I'm pleased you gave a good account of yourself against the opposing legal rep.

 

But if claimants have the opportunity to claim restituionary damages from the bank, that's their prerogative.

 

[andydd]

Hi Andydd,

 

Apologies to Halibunny for this hijacking.............

 

There is no large profit being made. Claiming interest in restitution is a means of taking back from the bank not only the money they took from you unfairly, but also the profits that they have made in their business with the use of your funds.

 

Judges rarely get to decide on BC cases as they currently pay back your money long before the case gets to court.

 

If you are happy with your win including 8%, that's great and I'm pleased you gave a good account of yourself against the opposing legal rep.

 

But if claimants have the opportunity to claim restituionary damages from the bank, that's their prerogative.

 

 

Good point..I'll also mention that I was lucky enough to be one of those who got his bank charges refunded (before the Supreme Court decision), the interest did make quite a large differnce (I received about £2200 from LLoyds), I guess it would of been possible to try and argue S32 in that case too (I believe some did) but the outcome was still great, this was settled out of court.

 

Andy

[HALIBUNNY]

Erm....The interest calculator will not open or download....Anyone else having problems.>?

[dx100uk]

which one?

 

dx

[HALIBUNNY]

Hi. Using the interest calculator link in post no. 8 above

[ims21]

Are you using MS Excel, MS Works or OpenOffice?

 

ims

[slick132]

Hi Hal,

 

Try this link to the Interest Tutorial - http://www.consumeractiongroup.co.uk/forum/content.php?757-Interest-Tutorial-and-Spreadsheets

 

Near the very bottom of the article, you should see a link for a "simpler spreadsheet".

 

If you still can't get it, send me a PM with your contact email so I can send you a copy of the spready to save and use.

 

[HALIBUNNY]

Hi

 

BARCLAYS were sent claim letter for unfair penalty charges with all copies of relevant statements dating back to 2004 with regards a credit card. In the letter they were told 24.9% interest in restitution was being claimed and charges over 6 years with relevant case laws quoted. Told to send me cheque and not to any other organisation or third party.Letter sent proof of delivery.

 

The account has recently been bought by a dca with an alleged amount owing on it (within days of making the claim funnily enough.......). There is no ageement between HALIBUNNY and DCA and that is being dealt with separately. HALIBUNNY does not acknowledge any debt to DCA.

 

Finally received letter from BARCLAYS. Main points as follows:

 

"Further to your request for refund of fees to 2004, in accordance with guidelines issued by FSA , BARCLAYS only hold copies of statements for 6 years and therefore I regret we cannot access info before 2006

 

BARCLAYS is prepared to credit you with £20 and £22.10 contractual interest at 21.9% in full and final settlement of your claim. The agency responsible for your account has been notified and your account balance will be amended accordingly..... (This offer was based on one charge in the last 6 years. All the others over 6 years have been ignored even though copy statements were sent).

 

I understand that you would like refund to be by cheque. However, in accordance with policy as there may be a balance outstanding on your account the refund has been offset against any balance owing. Sorry if this is not the answer you would like but hope my explanation is helpful....

 

For purposes of financial ombudsman please consider this to be our final response"

 

And that's about it.

 

So I need a response letting them know

 

1. I want the refund and no other party and

 

2. to get the 30 other charges refunded.

 

Can someone give me some help in replying and plotting a course of action to remedy the errors of their devious ways?

 

 

Many thanks

 

HALIBUNNY