FORGET s.32 Limitations Act - there's a better way...

[TideTurner]

I know Bong,

 

I'll try and dig it out. I think there was a work around.

 

Tide

[steven4064]

Why do you think this, based on the case that was presented?

 

As I said, I was being cynical (and wrong as it turns out!).

 

I was sort of thinking aloud in my post. In the Appeal Court case quoted (Joachimson v Swiss Bank Corporation [1921] 3 KB 110), it seems that the claimant was trying to withdraw money from an account that had been dormant for more than 6 years. In other words, the account had some money in it to withdraw although the account had had no activity for more than 6 years.

 

In our case that might not be true. The actual balance today consists of 'my money' minus the charges taken by the bank.

 

So 'my money' = 'actual balance' + 'charges'

 

I can only legitimately ask the bank to repay an amount x, say, if

 

x

 

If I request the bank to pay back the charges (that is x='charges') then 'charges' must be less than 'my money'.

 

That means that 'charges'

 

and that can only be true if the account is in credit, otherwise you are asking the bank to pay back money which you didn't deposit and they are not in breach of contract. Is that right, or am I talking nonsense - it is late.

[TideTurner]

Sorry Tide, how do you mean the case could have been resolved without the need for court action?

 

The Courts are very sympathetic when it comes to attempts to resolve a problem before it reaches a legal stage. Where you have made all efforts to attempt to strike a deal e.g. stated in your letters to the banks that you will accept a reasonable offer in settlement, and this has been ignored, or the banks have proceeded anyway, the Courts will look favourably upon it. This is to your benefit, especially when it comes to a costs order, as the Judge will know that the banks have forced your position, despite your attempts of resolution, and may award costs to yourself if applied for. Abuse of process?

 

Tide

[Guest bong]

yes you're right, it is late. I think I'm gonna have to think that one through tomorrow! My impression is that you're thinking of say an account which has always been in overdraft? I suppose you could argue that the overdraft was approved for your spending and not to be used up in charges but now we are getting into really unfamiliar territory and I think I will have to retire for the night:)

 

BTW, I'm not sure if the case was centred around a dormant account, I think that was just an observation made by the judge concerning the potential effect of his judgement.

[elsinore]

I don't know the answer to this but my gut feeling is that if there was a contract in existence within 6 years of bringing the claim to court, then you would be ok. but I'm no expert and I'm only basing this on the fact that people with closed accounts are successfully bringing non-statute-barred claims. Would there be a difference with this approach? We really need the advice of zootscoot because contract law is her area of expertise.

 

Yes, I see what you mean, Bong. Unfortunately mine closed in 1999!

 

BTW i wasn't disagreeing with your proposition, merely adding my four-penn'orth. What do I know?

 

I also agree that the 'cause of action' is the crux of our arguments. I'm going through some stuff at the moment and might have something positive to contribute. (Don't hold your breath!)

 

Elsinore:)

[TideTurner]

Steven4064,

 

I have several accounts which have lied dormant for 6+ years with small amounts in them. TSB was charged heavily and has not yet been pursued.

 

I note that no attempt has been made to contact me and return the balance of approx. £20.00.

 

The only attempt I can recall is by the Prudential with respect to an endowment, which was forced by the Government.

 

How many more of these accounts are there?

 

Tide

[Guest bong]

The Courts are very sympathetic when it comes to attempts to resolve a problem before it reaches a legal stage. Where you have made all efforts to attempt to strike a deal e.g. stated in your letters to the banks that you will accept a reasonable offer in settlement, and this has been ignored, or the banks have proceeded anyway, the Courts will look favourably upon it. This is to your benefit, especially when it comes to a costs order, as the Judge will know that the banks have forced your position, despite your attempts of resolution, and may award costs to yourself if applied for. Abuse of process?

 

Tide

 

Tide am I just tired, or are you trying to turn the tide of this thread?

 

I can't see what you're getting at with regards to the subject of this thread ..sorry its probably just me.

[TideTurner]

Bong,

 

You're right, it's late. I'll have another read tomorrow, might even put my glasses on!

 

Night all.

 

Tide

[maybelline]

bong, cant remember where I saw it and in what act but there is something about having to make the demand in writing, perhaps its int he LA, anyway that gives rise to the thought that I had made my demand in writing by asking for the money back but also see the discovery which I have also added.

[InKogneeToh]

Hi all

 

Just subscribing to this thread so that I can follow this interesting new angle.

 

Rgards, Pam

[chezt]

Bong have you had any feedback from any of the admin/mods yet?

[Guest bong]

no, still waiting chez.

 

do you know what, I reckon the banks have paid them millions to keep quiet about this:p

 

either that, or they don't know themselves.

 

Are we just gonna have to proceed with this to test the ground do you think?

 

I am surprised with the lack of response but perhaps it is still early days.

[Glenn UK]

If that was the case, then people with closed accounts wouldn't be bringing claims at all.

 

And more importantly why are banks and cc companies paying out?

 

All my claims are on closed accounts.

 

 

Glenn

 

PS only just found my way here bong, very interesting find.

 

Edit PPS re using this info, i haven read the case law but assuming you have and are confident about what it says, then i wold suggest that anyone wanting to claim back further than 6 years seriously considers adding this to any Sec 32 arguments. Notice i said add not replace.

[Guest strangewayofsavin]

Hi Bong, I wrote a thread a few weeks ago, with regards to the simple contract issue, according to the fair trades act, it is the legal resposibility of the director/s to implement polices and procedures (of the're companies) so that they are lawful and ethical, and if any complaint is made about the foresaid polices and procedures, to review and amend any issue, surley if they have failed to deal with many a number of complaints about bank charges being "unlawful", surley this would invoke S.32 by negligance of their duties?

[Guest bong]

I think you're right strange (if I may call you that), but I am trying to stop this thread from going off topic simply because there are already lots of threads devoted to s.32 LA and this angle is looking at the claim not being statute barred at all, so s.32 would not be relevant. No offence intended at all and I think that is a very interesting point you have raised, although since our charges claims/complaints have only been going on for a year or so, I'm not sure if it would count as evidence for the older claims.

[TideTurner]

Bong, the Government has been forced recently to make the law more readily available, and easier to interpret for the lay person. Where a statute is complex and could be interpreted in several different ways, a layperson could not be expected to understand and apply it without professional help. I have always argued the discovery point, in that the Limitation date runs from the point you found out a wrong had been carried out. Isn't that the point you are making here?

 

The banks have a major problem, in that they have data warehouses, and cannot claim they have removed data from their systems once it has been held for seven years. Therefore, they have no argument for not providing all of your account details. They couldn't delete information on a 25 year mortgage as the contract is still in existence.

 

I am trying to agree with you!!

 

I have never believed I was bound by the LA and have obtained all of my data going back to 1991.

 

All, I'd also point out that the word limitation MUST be brought up by the banks in any defence they file - don't give them any ammunition by bringing it up first.

 

I also believe that they must prove that you knew about your loss 3, 6 or 12 years ago. This site being available is not accessible by the majority of account holders. Media coverage might put a different light on that though, and set the clock ticking.

 

Tide

[sequenci]

bump!

[sarahpp]

Just subcribing

[natwesttookmymoney]

Very interesting, Bong, and a nice additional string to the bow.

 

Westy

[zootscoot]

Joachimson v Swiss Bank Corporation

 

N. Joachimson (A Firm Name) v. Swiss Bank Corporation. (March 11 1921) - Judgment by Bankes

 

Concerned a dormant bank account which had been left unused for a period of time. In law when you pay money into the bank you retain the contractual right to withdraw the money. No cause of action will therefore arise until you ask for the money and they in breach of contract fail to supply the money. By simply leaving the money in an account there is no cause of action to trigger the time limit.

 

Our cases are outside this because the cause of action is not based on the contractual relationship of the bank account. The cause of action is an action for money had and received in consequence of money paid as a result of a mistake. The date of the mistaken payment is the date of the cause of action and there is no need for a demand for money which gives rise to breach. That is to say when they take the money there is no agreement that they will give it back if you demand it. Therefore there is no requirement of request for payment to affect a breach and trigger a cause of action.

[photoman]

Zootscoot

In plain terms for us Laypeople pleeeeeeeeeeeeeeeeese !!

 

What affect does this have on Statute of Limitations?

 

Does it mean:

1/ Any bar to claiming comes into force 6 years after the charge was made, regardless of whether we were aware of it?

ie: we cannott claim charges further than 6 years back from today.

 

2/ Any bar to claiming comes into force 6 years after the date we discovered the charge?

ie: we cannot claim charges further than 6 years back from the date we could reasonably have been expected to know of our right to claim.

 

3/ Any bar to claiming does not start to run until 6 years after we first take any action?

ie: Once we make them aware we are to start action, we have 6 years to do so.

 

4/ There are no bars to action, as there is no requirement of request for payment?

ie: we can claim a charge regardless of how old (but perhaps under Q3 we have to do so within 6 yeras of discovery)

 

Any suggestions ???

[zootscoot]

Does it mean:

1/ Any bar to claiming comes into force 6 years after the charge was made, regardless of whether we were aware of it?

ie: we cannott claim charges further than 6 years back from today.

 

Under s.5 Limitation Act 1980 without invoking s.32 this would be correct.

 

2/ Any bar to claiming comes into force 6 years after the date we discovered the charge?

ie: we cannot claim charges further than 6 years back from the date we could reasonably have been expected to know of our right to claim.

 

Yes if you raise s.32 relating to mistake or concealment

 

3/ Any bar to claiming does not start to run until 6 years after we first take any action?

ie: Once we make them aware we are to start action, we have 6 years to do so.

 

No

4/ There are no bars to action, as there is no requirement of request for payment?

ie: we can claim a charge regardless of how old (but perhaps under Q3 we have to do so within 6 yeras of discovery)

 

The request for payment in our cases does not trigger the cause of action. It is the mistaken payment which triggers this. Under s.5 you have six years from the date of cause of action ie the payment of the charge. You may then raise s.32 and have 6yrs from discovery of mistake or when it would be reasonable for you to discover that the charges were unlawful.

Hope this helps

Zoot

 

[j.barton1]

Hi Ive received a letter saying that i cannot claim before 01 due to sola, i will reply with this...is it okay?

Jenny

 

 

07.03.07

 

J McGuirk

 

 

Re Claim No 7QZ23978

 

I received your letter dated 5.03.07.

 

With regards to the limitations act I quote sec 32,

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. ....

 

I was not aware these charges were unlawful till the oft made their statements in April 06, therefore my original claim still stands from 01.07.00, as the six years runs from discovery of the fraud, concealment or mistake.

 

I enclose another copy of my schedule and interest calculations.

 

Regards,

 

Jenny Barton.

[Glenn UK]

Hi Ive received a letter saying that i cannot claim before 01 due to sola, i will reply with this...is it okay?

Jenny

 

 

07.03.07

 

J McGuirk

 

 

Re Claim No 7QZ23978

 

I received your letter dated 5.03.07.

 

With regards to the limitations act I quote sec 32,

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. ....

 

At the time the Defendant debited these sums from the Account, the Claimant was under the mistaken belief that the Defendant was entitled under English Law to take that money.

If the Claimant had known that the charges were penalties under English Law the claimant would not have paid those charges. The Claimant therefore contends that she made a mistake in paying those charges believing the bank to be applying those charges in accordance with common and statue law.

I enclose another copy of my schedule and interest calculations.

 

Regards,

 

Jenny Barton.

 

JMHO

 

Glenn

[j.barton1]

Thanks Glenn, Ive edited my letter,

jenny