Statute of Limitations and UCTA

[Movingon]

Firstly, the Statute of Limitations Act 1980 (SOLA) says you've got six years from the date something happened to bring an action about it happening.

 

But look at the exclusions... we're already discussing one of them around the forum, the one at Para 32 section (1) subsection (b) - deliberate concealment. But read below - and note that 32(1) © says that the limitations do not apply in the case of mistakes - i.e. if the bank screwed up, made a charge as a result, and wouldn't refund it, then the six year limit does not apply then either...

 

and finally 32(2) states that if the bank breached their duty in a way or under circumstances that made it unlikely to be discovered, then that amounts to deliberate concealment.

 

In other words, they don't have a leg to stand on as regards SOLA... they have made charges which appear in their terms and conditions and made no attempt whatever to bring to our attention the terms of the Unfair Contract Terms Act 1977 - amounting to deliberate concealment of the UCTA as it relates to penalty or punitive charges. Let's not forget that as you exceed your O/D limit, your interest rate goes sky high - which could be seen under the UCTA as "legitimate recovery of a genuine pre-estimate of costs". Returned items are done so automatically and the charges applied automatically.

 

I know I'm covering old ground to an extent here but I think I;ve seen bits in SOLA which haven't been discussed here before - could some of our legal eagles look over what I've written and tell me if I'm correctly interpreting it?

 

 

(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.

[Movingon]

I'm going to be drafting a new preliminary letter of claim to cover this which I intend to send to my bank instead of the template letter. It will be claiming the fees before the six year point on an estimated, pro-rata basis, on the grounds of the arguments above, back to the inception of the account - separately from the claim for the fees itemised in my statements. I will as a goodwill gesture tell them I am not claiming the interest they charged on any increase to my overdraft as a result of their charges.

[Movingon]

What do you reckon?

 

 

[your address]

 

[their address]

[date]

 

Request for repayment of charges

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: xxxxxxxxx

 

My request

I am writing to ask you to refund to me the charges which you have levied from my account over the last XXX years.

I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations. If you say that they are not then you will be pleased to demonstrate this by sending me a full breakdown of the costs to which you have been put as a result of my breaches – in order to reassure me that your penalties really do reflect your costs.

Additionally it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Further to this, I note that no effort has been made on the part of [bank] to draw my attention to the terms of the relevant laws on this matter during the whole life of my accounts – I believe this to have been deliberate concealment of material facts. This, under the Statute of Limitations Act 1980, 32(1)(b) and ©, and with reference to the Statute of Limitations Act, 1980, 32(2) means that the period of limitation begins today, when I discovered this concealment. You have stated that your records of my accounts only go back six years which renders an estimate of charges necessary for the years preceding.

 

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

What I require

I calculate that you have taken £XXXXX from my account in punitive charges – I require a refund of this amount in full. As a goodwill gesture, I am prepared to waive the additional interest you charged on these amounts, to which I am also entitled.

Further to this, the total above amounts to an average annual charge over the last six years of £xxxx, which I have used as the estimate for each of the years prior to that time for which you hold records. Accordingly I require a further payment from you in the sum of £xxxx as an estimate of the charges levied prior to the commencement of your records, commencing with the opening of the account on [date].

I will further point out that the appearance of these charges in the standard terms and conditions, (which have not been individually negotiated with me, but simply presented to me) does not render them legally enforceable.

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting unconditionally my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond or you do not respond positively within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

Yours faithfully,

 

[name]

 

Red - only include if necessary

[Movingon]

Anyone willing to discuss this?

 

*shameless bumping*

[alanfromderby]

What worries me is that you are handing them the amunition with which to argue. I would be inclined to send the standard template letter, and then let them raise the issue of limitation.

[Don Quioxte]

I absolutely love the enthusiasm - Stonelaughter you clearly have the persistence of a Yorkshire Terrier..

 

Having said that I feel we need to retain a perspective here. I strongly feel that the limitations act cannot be used as a standalone legislative tool to claim charges beyond the six years, because other legislation clearly provides a reasonable limitation which in my opinion would make the limitations act effectively redundant beyond the six years. In particular FSA regulations ad prescribed under FSMA 2000 and it's pre-cursor legislation.

 

That is not to say that there may not be exceptional circumstances (such as the fraud, concealement, or mistake) as provided for within the Limitations Act. Outside of this, I just do not envisage the legal system entertaining a claim which would largely have to be based upon supposition due to the probable (and legitimate) absence of documented evidence.

 

But, I am only of course airing an opinion... I have very limited legal knowledge/understanding (despite the fact that my mother is a Magistrate!!).

[Robertxc]

I too love the enthusiasm, although I think your letter is a little verbose (what the hell does 'impecuniosity' mean???).

 

I think the limitations argument would be better used as a defence to the other side trying to get it kicked out, rather than as a full frontal assault weapon, so to speak.

 

The problem with introducing arguments like that at the beginning is that you are giving them time to prepare a counter. Far better to spring it as a reaction to their motion that it's time barred.

 

In all probability their lawyer won't have instructions about it and will be left floundering.

[Movingon]

I too love the enthusiasm, although I think your letter is a little verbose (what the hell does 'impecuniosity' mean???)

 

No idea; MOST of this letter is from the template letter provided by the forum...

[Don Quioxte]

not looked it up to exactly define, but i am assuming it implies pecuniary disadvantage? or some other obscure legal definition...

 

who cares - the language the banks use in their correspondence is oftentimes worse than a foreign exchange student from Turkmenistan.. so I wouldn't worry unduly

[Movingon]

Looked it up; impecunious means poor; so impecuniosity means poorness, or lack of funds.

 

i.e. "impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account" means "unauthorised overdraft caused by you stealing from me"

[Candice]

I thought impecuniosity was a nice touch myself I bet it will force most of them to stop, open their dictionary and think

 

I too think it's a better idea to let them raise the limitations issue and spring it on them at the eleventh hour if they do try and cause hassle. Give them just enough rope to hang themselves and no more IMHO.

 

Good luck with your reaffluencification

[Movingon]

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