Bong v HSBC *Contractual Interest & 13yr claim**WON!!!**

[Guest bong]

Another one watching with interest Bong - go get 'em

 

Cheers

 

Michael

 

would that be at the contractual or the statutory rate sir? do excuse me - my minds full of the stuff !

[Matheos95]

Hi Bong

 

Just about to do the same thing as you but against Natwest we really having a headache about the particulars so hope you dont mind me using yours as they are gr8.

 

Heres my thread if your interested http://www.consumeractiongroup.co.uk/forum/natwest-bank/37730-claims-older-than-6-a.html

 

My account goes back to 1990 - I also chickened out of the contractual a). wanted to keep below £5k cause of abit of a gamble b). couldnt figure out how the hell to work it lol

 

Quick question what did you put on the front of the N1 under Brief Details and value?

 

All the best with your claim

[mcuth]

would that be at the contractual or the statutory rate sir?

 

ROTFL - contractual, of course

 

(and it wasn't even intentional)

 

Cheers

 

Michael

[Guest bong]

Hi Bong

 

Just about to do the same thing as you but against NatWest we really having a headache about the particulars so hope you dont mind me using yours as they are gr8.

 

Heres my thread if your interested http://www.consumeractiongroup.co.uk/forum/NatWest-bank/37730-claims-older-than-6-a.html

 

My account goes back to 1990 - I also chickened out of the contractual a). wanted to keep below £5k cause of abit of a gamble b). couldnt figure out how the hell to work it lol

 

Quick question what did you put on the front of the N1 under Brief Details and value?

 

All the best with your claim

 

thanks matheos, you're welcome to use them. lets hope they work! Under brief details I put "Money Claim as outlined in the Particulars of Claim" and in the value section I left it blank because you don't need to write anything there if you know the amount you're claiming.

 

Edit: you still need to fill in the amount claimed box of course!

[bill-k]

Followed your link here, Bong, thanks. Thread duly subscribed. Brilliant POC. Nice idea to claim as "£xxx plus interest" - I'll do that in future. Go for it, matey !!

[Guest bong]

cheers bill-k

[bill-k]

Those POC deserve a click, but they won't let me until I've put myself about a bit more. Well, put me down in your fan club anyway !!

[Guest bong]

they aint 'alf spoil sports aint they bill? thanks for the thought anyway, and don't do anything your mother wouldn't have approved of...

[bill-k]

they aint 'alf spoil sports aint they bill? thanks for the thought anyway, and don't do anything your mother wouldn't have approved of...

 

Out of sight - out of mind. 8-)

[Matheos95]

Hi Bong just to say ty again for particulars - N1 was taken to court today so now like you I guess sit back and see what they make of it.

 

Good luck matey

[Guest bong]

cheers. for a minute there I misread what you had written as "try again for the particulars"...LOL!

 

good luck to you too!

[alanfromderby]

This is part of the argument that I am using over section 32:

 

 

48 The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large number of staff, including experienced corporate lawyers and accountants.

 

49 As a company regulated under the Financial Services Authority, they have agreed to abide by the Principles for Businesses, as outlined in Chapter 2, of the FSA Handbook:

1. Integrity - A firm must conduct its business with integrity.

2. Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

3. Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

4. Financial Market Conduct - A firm must maintain adequate financial resources.

5. A firm must observe proper standards of market conduct.

6. Customers’ interests - A firm must pay due regard to the interests of its customers and treat them fairly.

7. Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

8. Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

9. Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

10. Clients' assets - A firm must arrange adequate protection for clients' assets when it is responsible for them.

11. Relations with regulators - A firm must deal with its regulators in an open and cooperative way, and must disclose to the FSA appropriately anything relating to the firm of which the FSA would reasonably expect notice.

 

50 This document is produced under the powers given to the FSA within the Financial Services and Markets Act 2000, and provides a benchmark by which financial companies should operate within the United Kingdom. Paragraph 9, places a duty on companies to “take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment”. I contend that banks fiduciary responsibility is encapsulated in law, and therefore if such a regulated company informs a customer that it is entitled to levy a charge against an account, it would be reasonable to expect the account holder to believe that the actions of the bank are lawful, and that the charge relates to it’s internal costs, as they continue to contend is the case.

[Guest bong]

Very thorough Alan. Thanks for posting it. I will refer to that if I am called upon to expand on my arguments.

[Glenn UK]

Something worth considering is that the banks will almost certainly claim they didn't know the charges were unlawful if it gets to court.

 

Concealment Can be both intentional and unintentional.

 

Assuming that a case was presented logically the first point would be to argue the charges were unlawful.

 

If that argument is well made then it follows that irrespective of whether the banks concealed the nature of their charges on purpose or not, then they have concealed the nature of their charges in fact from their customers.

 

I'm sure i read somewhere in one of the case judgements i read that concealment doesn't have to be deliberate.

 

BTW i do think they knew, but they are unlikely to admit it.

 

JMHO

Glenn

[Guest bong]

Thanks Glenn. I was advised by zootscoot that ignorance of the law is not a defence. So basically the bank is prevented from claiming that it didn't know the charges were unlawful.

 

As regards the concealment and whether it was deliberate or not, are you saying that subsequent case law now overrides the wording of s.32b?

[Glenn UK]

Thanks Glenn. I was advised by zootscoot that ignorance of the law is not a defence. So basically the bank is prevented from claiming that it didn't know the charges were unlawful.

 

Ive heard that before once or twice, however, do you think on the other hand the bank will say yes we knew it was unlawful to make these charges? It would be useful for them to admit it but i cant see it.

 

As regards the concealment and whether it was deliberate or not, are you saying that subsequent case law now overrides the wording of s.32b? Thats a fair point about the wording, Sec 32.1.b uses the word deliberate and from what i recall of what i read the act of concealment to be deliberate doesn't have to mean that the defendant knew and actively concealed the facts. Simply the fact that they knowingly or otherwise concealed the facts from you amounts to the same thing where they should have known.

 

Ill try to find the case i read this in, i may have misread or misunderstood but ill see if i can find it in my 'library' and get back to the forum one way or another.

 

Ive read so much over the past few months that i now have a lot of trouble remembering exactly what i read and where, hopefully ill find the bit and be able to confirm one way or another about the concealment issue.

 

Glenn

[Guest bong]

Ive heard that before once or twice, however, do you think on the other hand the bank will say yes we knew it was unlawful to make these charges? It would be useful for them to admit it but i cant see it

 

Its not really our problem to worry about this is it? If they can't claim they didn't know it was unlawful we are better off.

[Glenn UK]

Re the stuff on concealment heres a link

 

House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

 

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

 

"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent.

 

If you go look at the link theres loads more, not all of which i have read this time, but it might prove useful for those using the limitations act.

 

HTH

 

glenn

[Glenn UK]

 

Its not really our problem to worry about this is it? If they can't claim they didn't know it was unlawful we are better off.

 

'cant' is a funny word, it might be the court wont let state they never knew, on the other hand it might let them use the words but ignore them.

 

Either way i think in some form or other they will dispute the unlawfulness of the charges and if one wants to use the limitations act then one must understand what the defence might argue.

 

If they were to use they didn't know and you hadn't considered whether this mattered or not then it might be the end of the claim for your charges over 6 years old.

 

JMHO

 

Glenn

[Guest bong]

Re the stuff on concealment heres a link

 

House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

 

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

• "the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent.

 

If you go look at the link theres loads more, not all of which i have read this time, but it might prove useful for those using the limitations act.

 

HTH

 

glenn

 

All useful stuff Glenn. My understanding then is that in order to establish your right to claim under s321b you don't need to show that the bank intended to conceal the facts, only that it did so and had a duty to know that it shouldn't have concealed.

[Guest bong]

If they were to use they didn't know and you hadn't considered whether this mattered or not then it might be the end of the claim for your charges over 6 years old.

 

but it's the courts/judges job to know what they're allowed to use in their defence - not ours - surely.

[zootscoot]

but it's the courts/judges job to know what they're allowed to use in their defence - not ours - surely

 

No its your job to argue your case and respond to their defence. The judge will listen to your arguments based on the law you present to him/her. The judge is not going to research your case for you.

 

A useful case Glenn, however, the part you quoted relating to Brocklesby v Armitage was overruled by the House of Lords in Cave v Robinson. They decided it was wrongly decided and therefore deliberate concealment is still needed.

 

All the best

 

Zoot

[Guest bong]

Thanks zoot.

[alanfromderby]

However, their continued assertions that their charges are lawful would cause them severe difficulties in arguing against concealment.

[Glenn UK]

Thanks zoot

 

Oh well back to the drawing board then!!!

 

And thanks for making the point about the judges role, whilst we are acting fror ourselves mostly, I think it is dnageours to rely on the court to make out cases for us.

 

GLenn