Limitations Act and DPA issue

[andrew1]

Hi, I made a claim against a bank for some charges which had been applied to my mortgage account for the 'cleansing' by their solicitors of my Data following a DSAR in 2008. The finite detail of which is not relevant to this question I pose.

 

The bank employed solicitors to defend my Claim (which I had repaid in full after a battle).

 

1) The solicitors advised me that the bank had admitted the charges should not have been applied ie. there was a mistake or the fact I was never advised of these charges, they were 'concealed.'

 

However, the solicitors stated on a number of occasions when I pressed them that my 2008 charges which had been charged were now Time Barred and therefore would not be repaid citing s.2 Limitations Act 1980. - (6yrs rule)

 

2) I only discovered the charges in 2014 when investigating something else and they knew this.

 

However, I went back to them and stated that under s.32 of the Limitations Act 1980 in the event of Mistake, Concealment or Fraud, Limitation is postponed, but they insisted s.2 applied as a result of my claim being a claim against the bank for breaching the DPA.

 

They stated in response:

 

"You have proposed an action against our client for a breach of the Data Protection Act 1998 and on that basis s.2 Limitations Act 1980 applies"

 

 

So my question to you here is:

 

Under what circumstances, when a claim is made for a breach in the Data Protection Act (they charged me over £1000 for a £10 statutory DSAR fee cost which breached the DPA regulations of charges for a DSAR) can a defence of s.2 Limitations Act apply which denies me the repayment, when s.32 can be ignored which entitles me to be repaid?

 

I received the payments back on the basis of a 'commercial decision' being made (ie..it was costing them more in their own legal fees now that I had redeemed the mortgage and couldn't dump them on my mtg, than they were going to pay out)

 

But that's not the issue here, I need to know exactly why they felt they could use s.2 legally to defend and not repay me, whilst ignoring s.32? To the layman it doesn't make sense, perhaps there is a particular legal reason why and that's what I need to know.

 

Many thanks

 

A1

[BankFodder]

The figures you're talking about are all within the small claims limit. It seems to me that you are right, these payments made under a mistake and therefore time runs from the date that the mistake was discovered or could reasonably have been discovered.

 

I'm amazed that you paid out £1000 for an SAR. Maybe you'd like to make a donation to us.

[andrew1]

Thank you for your comments, the issue for me at this present moment is what legally allows the solicitors to feel confident in a defence to argue that as a result of my claim being a claim against a breach of the DPA, that legally justifies the use of s.2 whilst allowing them legally to excuse themselves to dismiss s.32 as not being relevant?

 

They are either

 

a) trying to deceive me or

 

b) they have a legal right as it was a claim for a breach under the DPA which allows them to exclude s.32

 

I am trying to seek precisely what is in the law with regards to a claim against a breach of the DPA which legally allows them to use this excuse to deny a claimant from applying s.32.

 

I have the scenario you mentioned with only discovering this in 2014 so that allows the claim, but this revolves around a concealment and/or mistake which ultimately all comes under the Fraud Act anyway, but is covered by s.32 Limitations.

 

It has been a very long battle BF and I had considerable assistance and support from the ICO which called the costs charged as 'reprehensible' and 99.99% of bank customers would never have discovered these costs unless they had undertaken the kind of investigations I have which has taken me many years and do not stop at DSAR charges.

 

It is part of a much wider investigation I have been undertaking and the benefits to Cag will come from when I have completed my work and I post it up for the world to see. I cannot do that fully yet and I am not cash rich yet either.

 

Slowly slowly catchee monkey! But I need the defined legal answers to my question if anyone knows it please?

Thanks

 

A1

[BankFodder]

I think you are being over formal about the whole thing. I hope you won't mind me saying that I have always found that to be your style over a number of years. I think that tends to clutter matters and that you should look for a far simpler approach.

 

You are in an adversarial system. The solicitors are being taken on to fight for their client and the argument that they are using is a reasonable argument and they might either consider that it is an argument which will persuade you to back down before you have it tested in court or that if you decide to go to court, that it will be a winning argument on the day.

 

I think they're wrong and so on that basis I think it's worth going to the court and getting the judge to give his/her opinion.

 

I don't think it's anything more sinister than that.

 

I'm very is the to hear that you're getting help from the ICO. That's pretty unusual. Have you got a letter from them talking about the reprehensible nature of the costs? I'd be grateful if you could post it up in PDF format having redacted the identifiers.

 

Incidentally, if the bank has somehow made this enormous charge for an SAR then as long as you can establish that it isn't some simple error somewhere along the line, I would be looking for an action for unfair treatment under BCOBS. I think that this would be a good addition to your DPA claim and would be far more worrying for the bank. I don't think they're worried about having DPA judgement but I get the impression that they are profoundly concerned about having BCOBS judgement against them.

[andrew1]

Thanks BF, my style is one I have adopted around the truth, something alien around parts of the legal profession but one which has brought me great success and whilst I may have the time to do so unlike many others with busy lives, I am not prepared to stand back and let professionals lie in court statements of truth in front of judges and /or in letters defending clients when wrongdoing is profound letting them get away with it.

 

I will be posting up a series of events as time goes by, but I will do that in due course as my claims are ongoing and I am not posting them up as it's safer and more appropriate to handle things they way I have been doing and just asking particular questions I find I cannot directly find the answers to myself.

 

I apologise for my more formal approach, to me that say's you are prepared to let these solicitors, who are duty bound by Codes of Conduct, have a licence to lie. ie. give them some slack..

well actually No. I am not prepared to do that and if saying something in five sentences achieves what others may achieve in one, then so be it. It works for me. The devil is in the detail and the detail it is that wins.

 

I'll let you know how it progresses but in the meantime, do these solicitors have any legal argument as to why they can use s.2 and ignore s.32 Limitations when it is a claim under the DPA or not do you think?

 

Ta

 

A1

[andrew1]

Just for clarity, my £10 DSAR was sent to the bank along with the fee. The bank decided to send my data to their solicitors for 'cleansing' as I had already claimed on something else and won (my way!) The solicitors quite rightly sent their invoices for this cleansing to the bank who then promptly applied them to my mortgage account as the invoices came in.

 

As Mortgage statements are produced at the end of each financial year, I had no idea these were applied to our mortgage capital balance and attracting compound interest. When the statements did arrive there were one line entries of 'solicitor costs' which told me nothing. As I was fighting them on other things these went unnoticed and the bank never supplied a break down of any costs being applied to the mortgage whatsoever.

 

It was only when I began my investigating did I find a detailed listing of what these costs were and there were the DSAR cleansing details in full. had I not done that work, I would never have known, the bank unjustly enriched and nobody any the wiser.

 

Trouble is, I sent DSAR's in on 2 different occasions 2 years apart and they did the same thing twice! Double whammy.

 

When I challenged the bank their solicitors said the earlier one was Timed Barred under s.2 Limitation as I have stated above, and I said no it's not.

 

I won. But arrogance prevailed as usual and they insisted that they would pay me out on a commercial decision basis rather than admit s.32 applied.

 

If they are correct, then there is a law in Statute which states that because my claim was for a breach under the DPA then they are right. So let's see it - I need to know what that particular law is that states my claim for the 2008 charges was Time barred. Simples....tell me what that law is.

 

If they lied, or were hoping to fool me, or deceive me as a LIP then own up and admit it, just tell me they were playing the legal game of 'try-it-on and see if we can get away with it'...maybe they do this all the time?

 

However, let us not forget some of their Principles in their Code of Conduct shall we?

 

You must:

 

• uphold the rule of law and the proper administration of justice;
  
• act with integrity;
  
• not allow your independence to be compromised;
  
• behave in a way that maintains the trust the public places in you and in the provision of legal services;
   
  

 

If they lied, how do we trust them - any of them?

 

Do I let them away with it, or do we leave them to attack some other poor souls on Cag who may not be quite so resilient?

 

With the compound interest they charged on the earlier charges and the 8% Statutory interest, we are talking about me losing over £2000 if I didn't use my over formal approach and fight for it,I fought, I won it all back, so how much slack do we give these people?

 

You tell me?

 

Now can anyone tell me exactly what law it is that allows them to ignore s.32 Limitations when the claim is made under a DPA breach?

 

Many thanks for your input.

 

A1

[lookinforinfo]

Hi Andrew-long time no see-how are you apart from seething about the treatment from your bank.

 

I cannot help you on why suing under the DPA is subject to 6 years while just suing for concealment can be. So my question is-why not sue them for concealment with no mention of the DPA.

After all, it was the fact that they concealed the charges from you that is the problem not that the charges were incurred as a result of actions under the DPA. In other words however the charges were incurred, the bank failed to inform you at the time, which was negligent and you were also ratcheting up interest costs on top of that which you also did not know about. The DPA is irrelevant to your claim of concealment.

 

Have you looked at s14B Negligence not involving Personal Injury where you have 15 years to claim.

[andrew1]

Hi Andrew-long time no see-how are you apart from seething about the treatment from your bank.

 

 

Have you looked at s14B Negligence not involving Personal Injury where you have 15 years to claim.

 

Hey, well well, great to hear from you LFI, how are you keeping too - still fighting them are we?

 

This claim was a good one, usual resistance by arrogant solicitors totally out of touch with reality and thinking we in the wider world are all morons. Nothing changes!

 

Remember our old saying " Ya don't feck with the Cabot Fan Club"? It still applies!!

 

I've not looked at s14B Negligence involving Personal Injury but will thanks as I have other issues for them to deal with and it may be usueful.

 

It'll take a while for them to realise they cannot win these claims because the way I am going about it, but they will as I spell out what they've done and I am prepared, given what they have taken from me, to take the whole thing through to the final kill. I work with facts, just facts - if the facts are 50/50 I leave it, I'll only run with the facts that will win and they cannot, no matter how hard they try, defend. I've learned a lot during my journey through these harder times, now is payback time for their arrogance and belief's that stealth combined with that arrogance can win. Not with me it won't!

 

I had to use the DPA in the above mentioned claim as the data was supplied under a Subject Access Request (or 2 actually), but statute demands they only charge £10 each. Hidden costs as these were, being added via a backdoor method was not on and the ICO had to be asked to confirm that, no point me just saying it, they take little notice and rely upon the Mortgage Terms and Conditions to say they can charge whatever they like whilst protecting their security, but getting the ICO behind me confirming it gave them little wriggle room.

 

By getting that confirmed as I did supported the Claim and whilst these solicitors and banks are not afraid of the ICO, when you copy in the FCA too they do get rattled.

 

Anyway, that one has been won and I have done it without running a thread or asking for help from Cag posters generally, but I do back-up the facts and detail that's how the claims are won. I just needed to know about s.32 and was checking facts, nobody has come back on it anyway, but it's academic now. A complaint has been fired off to the Regulators none the less about their use of this to destract me. Despite what BF says above as their solicitors arguing it was 'reasonable', I've never found lying to be reasonable under any circumstances. Facts is facts!

 

So, the next claims rolls on and I hope you have cleared all yours up by now?

 

Good to hear from you.

 

A1