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

[tifo]

might be useful if trying to claim over 6 years, but not exactly sure of the statutes yet.

[Guest Battleaxe]

I am going to through something else in here.

 

I have claimed back to 1998 on my second bite with A & L. I sent all the documentation of the FOS for another reason. guess what, I could prove to the FOS that i had complained to the bank back in 1998 and I can claim these charges, even though the bank said it doesn't keep records beyond 6.5 years. I had a copy of letter I sent the to the Chairman of A & L and several statements wherte I have written notations after ringing the bank disputing the charges levied.

 

As stated before the legal eagle told me SOLA does not apply in this case, you have six years to lodge your claim from date of discovery, and you claim back to whenever. Discovery October 2006, you have to September 2012 to make claim for ALL uinlawful charges dating back to the historical date the first charge was applied to your account.

[sarahpp]

That is very interesting BA. So, what you are saying is that the Financial Ombudsman has told you that you can claim from the date of discovery?

 

I don't suppose he put it in writing did he?

 

I am a bit confused as to which "legal eagle" you are talking about. Could you clarify whether it is your solicitor or the Financial Ombudsman's please?

 

I am easily confused this morning!

[TideTurner]

Hi BA,

 

Every time you call the bank, a note is made against your account. I made an application for this data in my SAR, and the notes clearly show that I had complained to them years ago.

 

We have to be clear that the 'Discovery' relates to the application of unlawful charges, and that information has only recently been made available since the OFT statement in April 2006.

 

Prior to this, nobody would dare go against the banks, as you were quashed and bullied until you gave up, and they reinforced their opinion that what they were doing was lawful.

 

If anybody was in the position to know whether what they were doing was lawful, it was the Banks, or the lawyers instructed by the Banks to research and draft the original contracts.

 

Despite all of the recent media attention, they are STILL making charges of £30+ where they think they can get away with it.

 

I was told by the FOS last year, that there is NOBODY who could handle a complaint against the Banks for the common man. I was on my own. This must change now.

 

Their Legal Eagles should not have allowed the drafting of these contracts in the first place.

 

Tide

[southyorksman]

All this is well and good but under the dpa the banks only have to give us the last 6 years of data don't they?? After 6 years they are legally entitled to destroy their financial records aren'y they? So we can't get the information beyond 6 years old can we??

[Glenn UK]

All this is well and good but under the dpa the banks only have to give us the last 6 years of data don't they?? After 6 years they are legally entitled to destroy their financial records aren'y they? So we can't get the information beyond 6 years old can we??

 

im sorry you are showing a fundemental misunderstandng of the DPA.

 

It does not specifty any minimum or maximum time period for data retetention.

 

Incidentally a bank can if it so chooses destroy data from any age as far as I can make out, there is very little legislation if any that covers your account information. having spoken to the ICO at length, the financial ombudsmans office and the inland revenue it is far from clear what time periods are enforceable in this context.

 

The often quoted '6 year rule' is not derived from legislation but is an indsutry standard that has been adopted without support from legislation.

 

So to conclude, there is no min or max period, many banks have data pre six years old for certain barclays comes to mind. Today i have had two kind members send me letters from barclays stating they dont hold data over 12 years old.

 

The Co-op provided me with data over 9 years old.

 

A memebr of the site used to work for abbey and they held data back to the 1920s up until around the year 2000. they have also provided me with data on two accounts over six years old and another meber has provided me with correspondece with his data being over 6 years old.

 

HTH

 

glenn

[TideTurner]

It does not specifty any minimum or maximum time period for data retetention.

 

Correct

 

Incidentally a bank can if it so chooses destroy data from any age as far as I can make out, there is very little legislation if any that covers your account information. having spoken to the ICO at length, the financial ombudsmans office and the inland revenue it is far from clear what time periods are enforceable in this context

 

The DPA states that any data controller must not hold or store data for longer than is necessary. Why then, have all of the main banks put all earlier records on microfiche? You should ask for the info, or the date, method and reason for destruction. If you have dealt with the organisation in the past, you should not expect this information to ever surface if they confirm it has been destroyed. Also, where they have passed it to third parties, they should also recover and destroy that information

 

The often quoted '6 year rule' is not derived from legislation but is an indsutry standard that has been adopted without support from legislation

 

The 6 years comes from S5 Limitation Act 1980 (defence is concealement under S32). This has never been successfully defended.

 

A memebr of the site used to work for abbey and they held data back to the 1920s up until around the year 2000. they have also provided me with data on two accounts over six years old and another meber has provided me with correspondece with his data being over 6 years old.

 

We all know they have the information and are frightened of getting rid in case it comes back to haunt them. Mid - late 80's - Microfiche. 90's digital.

They have it and should provide it, or details of the destruction of it, in which case it cannot arise in the future. How can a Credit Reference Agency tell me they have me on record when the Banks are telling me they have deleted all records?

 

Tide

[Glenn UK]

The 6 years comes from S5 Limitation Act 1980 (defence is concealement under S32). This has never been successfully defended.

THe six years quoted in respect of the DPA has nothing directly to do with the SOLA in a legal sense. It may be that there was some logic relating the DPA to the SOLA but i cannot see this, it seems from my info that the 6 year period is related to the retention of default entries on a credit files and I cannot see the link between that and the SOLA. I believe the six year period was agreed upon and subseqeuntly became indsutry practice at a conference of CRAs/Data controllers some years ago. This is why the CRAs etc have been ubale to estabslih any statue supporitng this time period.

 

You are right that its up to the data controller to show that the processing/retention of data is for a reasonable period and if they hold it for six years this is likley to be deemd reasonable for no other reason that it is industry practice.

 

 

 

 

I think the key issue is that data controllers have tohold data for as long as they see fit and then justify that policy should it come to it.

 

There is no statue specified period for data retention, six years is only indsutry standard, nothing more.

 

Glenn

[TideTurner]

Glenn,

 

Can this have anything to do with the requirement of businesses to hold accounts information for six years, or six years after the termination of any contract (which would allow them to delete the info)?

 

My point is that they won't delete the info and in most cases can't as they have communicated it without the consumers express authority to third parties. They have therefore failed to ensure it was secure, have lost control of it, and are now unable to give surety that none of it exists in the public or other domains.

 

I have recently issued and expect this amongst other things to be brought up.

 

I am keen on the date of discovery.

 

Tide

[photoman]

Glenn,

 

Can this have anything to do with the requirement of businesses to hold accounts information for six years, or six years after the termination of any contract (which would allow them to delete the info)?

 

My point is that they won't delete the info and in most cases can't as they have communicated it without the consumers express authority to third parties. They have therefore failed to ensure it was secure, have lost control of it, and are now unable to give surety that none of it exists in the public or other domains.

 

I have recently issued and expect this amongst other things to be brought up.

 

I am keen on the date of discovery.

 

Tide

 

 

This is a fascinating point !!

 

Am I getting your train of thought right here ??

The fact that they feel afraid to destroy data in case it suddenly arises elsewhere? Maybe, because they could then be obliged to produce the original, in it's original form, should some correction/verification be required?

 

I think this could maybe provide us all a useful angle for some modification to the SAR ??

 

Perhaps, we should be all insisting (as is also our right under the DPA) to recieve all information regards any disclosure of our personal information to any third party, and copies of such? We could perhaps even include some known examples of occasions we ourselves are aware of when this infromation was likely released..(eg, mortgage application, certain job references, loan applications, Life Insurance applications, etc)

 

This could provide the extra leverage required to force an admission of retention of any data beyond 6 years......and insist upon it !!!

 

 

 

Ideas anyone ???

[Glenn UK]

Tide

 

I am not sure about businesses having to hold data for six years, they may hold data but i do not think there is a specifc requirment by statute.

 

I did quite a lot of research and in the end i came up with not a lot. The IR people i spoke to said their requirement was 3 years for accounts retention not the six often quoted.

 

I understand that the Ir and VAT can go back as far as they like if they thinks that fraud has been committed but Im not sure the require retention of accounts data by statute beyond three years now.

 

MY company has to hold data for 12 years based on our PI cover.

 

THe retention of data under the moeny laundering regs does not appear to cover all data only those from suspect account activity.

 

So whilst i recognise from a business viewpoint the concerns over the limitations act and that some organisations hold data for a lot longer, I am not certain that the limitations act comes in to it other than on the basis of self protection for companies to have evidence available over what has historically been said/done.

 

The biggest problem i have had in this area is actually finding definitve sources of law. If yo uknow of any id be grateful for a pointer.

 

Glenn

 

Glenn

[TideTurner]

Glenn / Photoman,

 

You could say we are in the information era. You could also have said that 10 years ago, but many would have called you mad. The Banks were there and invested heavily in technology.

 

Photoman - I have a flowchart where I can prove from an SAR and phone calls and correspondence that my personal information has been passed to 32 companies, including insurance, solicitors, debt collectors, estate agents, CRA's, DPA's and private detectives. I have NEVER given my authority for my personal information to be forwarded to any third party apart from in 1991 'for the purposes of applying for a mortgage' - an application.

 

They can never tell me that my data is secure. They no longer have control of it.

 

Glenn - you mention money laundering regs. We can guarantee GCHQ will have this information, and the Banks will not destroy it in case they will need to refer to it later. Photoman is right. Where companies were taken over in the 80's, 90's, their entire files were transferred to microfiche.

 

There are several precedents which cover S32, but I think they may give that argument up.

 

Tide

[Guest Battleaxe]

Just quickie, Sarah asked who gave the information regarding claiming back than the accepoted six years.

 

The solictor for AMICUS is one source - six years to make the claim.

 

Our solicitor is another source - six years to make the claim, not six years worth. SOLA is six years to make the claim, if you don't make the claim within that time from date of discovery, you cannot claim.

 

My cousin who is High Court judge in Australia is another source. Six years in which to make the claim from date of discovery.

 

FOS is the fourth source, they requested any communications between ourselves and the bank pre 2000 regarding the charges placed on the account. Luckily I was able to dig up several statements where I had made notations every time I made a phone call and a letter of complaint to the Chairman of the bank complaining about the charges and also reminding the chairman that I had complained one month earlier to him regarding the charges, this is back in 1998.

 

My complaint with the FOS is still be investigated.

[sarahpp]

Thanks for that extremely useful info. BA

 

Sarah

[Glenn UK]

Battleaxe

 

 

Can I clarify what i think you're saying.

 

That the SOLA gives the claimant six years to claim from the cause of action or discovery (if there is concealment fraud or a mistake) whichever is the later.

 

The reason that many believe you can only claim six years worth is because they have been bamboozled by the banks etc into believing that the cause of action is the important criteria for calculating the six years and this would give rise to be ing only able to claim six years worth of charges IF WE AGREED THAT THERE WAS NO FRAUD CONCEALMENT ETC.

 

However where there has been the said fraud, concealment etc then the six years is forward looking and not backwards looking as you suggest edit and runs form your dsicovery.

 

Glenn

[sarahpp]

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.

 

Glenn

 

That is the way I read it but, the intepretation of the legal authorities kindly posted by BA would appear to contradict Zootscoot's earlier posting on the relevant cause of action dates.

 

Sarah

[Glenn UK]

Sarah

 

i dont think it does, Zoots posting was about the use of the case referred to in her post, it is not a comment on the limitations act per se.

 

i think was making the point that the relevance of a particular case is where the basis of that case or the element you want to take from it parallels your own claim.

 

JMHO

 

Glenn

[sarahpp]

I hate to disagree with you Glenn (you know that is not true, lol)

 

but,

 

In Bong's first post, the case in question actually got to court and the barrister did not raise the SOL after receiving notice of the intent to use this particular case and in fact, declined to use the SOL when the judge asked him whether he wished to.

 

Does that not seem a bit strange?

[Glenn UK]

Sarah

 

The assumption about why the defendant didn't use SOLA is a moot point. I never presented any arguments in my POC about SOLA beyond alleging that the abbey had concealed the unlawfulness of their charges and i had made a mistake.

 

They specifically told me they were not going to rely on the limitations act.

 

My feeling is that the SOLA is a bit like arguing over the lawfulness of their charges.

 

The penalty for making a mistake is not worth the effort in most cases.

 

I think it would be wrong to rely on this case alone bearing in mind that there is case law supporting the concealment (cave vs Robinson i think it is) and it is difficult to argue that the claimants made a mistake.

 

It might however be worthwhile putting this into any arguments as well.

 

JMHO

 

Glenn

[TideTurner]

My feeling is that the SOLA is a bit like arguing over the lawfulness of their charges.

 

I agree wholeheartedly Glenn. I made my mind up a long time ago about the SOLA, but keep my finger in to cover any defence the Mortgage company may throw at me.

 

Two years ago, after being in dispute and correspondence for three years (5 in total), I wrote to every member of the Board of Birmingham Midshires (6 members), informing them that their actions were unlawful. I received a reply off three of them - we're sorry you feel that way etc etc, our complaints procedure is....

 

I followed this up with telephone calls and told them I would subpoena them into Court to explain their actions. Only got as far as the MD's PA though, so asked her to pass on the message. Shortly afterwards he was promoted to the Board of Halifax.

 

I have considered Criminal charges for theft and fraud - Theft Act 1968 - permenant deprivation, and the production of an instrument with the intention of causing a person to do or say something to cause a gain.

 

I cannot understand how the banks have so far eluded criminal charges, as they knew exactly what they were doing.

 

Sorry for waffling, but my point is if you discovered a painting was taken from your parents during the war (or the gold in Switzerland) you would have 6 years from the date of discovery to reclaim it (or damages to that amount).

 

Criminal charges may also be brought against the theft upon which there is no Limitation.

 

Tide

 

PS I have 6 days for them to put in a defence, and will look at the Criminal aspect if one is received starting with the various Ombudsmen who told me there was nobody to Govern the Banks.

[TideTurner]

Glenn,

 

BTW - thanks for clicking the scales

 

Tide

[zubo]

Glenn,

 

BTW - thanks for clicking the scales

 

Tide

 

Guys

 

Sorrry to but in I'm trying to figure out how to get a full request from my Bank ie older than 6 years ago.... there were some hefty charges there.

Also, I havent got account details but Barclays, closed some 6 years ago - can I do the same with them?

Finally, I am intrigued - where can I read more? what is SOLA - I get the Limitation Act but SO?

 

ta

 

Z

[newbody]

SOLA Statute Of Limitations Act:D

[Guest bong]

technically I think it is incorrect, its either statute of limitations or Limitation Act 1980.

[photoman]

Guys

 

Sorrry to but in I'm trying to figure out how to get a full request from my Bank ie older than 6 years ago.... there were some hefty charges there.

Also, I havent got account details but Barclays, closed some 6 years ago - can I do the same with them?

Finally, I am intrigued - where can I read more? what is SOLA - I get the Limitation Act but SO?

 

ta

 

Z

 

Zubo,

SOLA stands for Statute Of Limitations Act.

They are obliged to send you everything, yet conveniently try to use SOLA, which has no relation to the Data protection act. If they do not provide it all, then you are able to issue court proceedings to get compliance or a complaint with the information commissioners office.

 

This is an edited letter I sent in response to not getting everything I requested;

 

Dear Sir/ Madam

Thank you for the information you recently provided me with regards my Data Protection Act Request. Unfortunately however it does not fulfil my request.

It appears that my original request was either not read properly, or was misinterpreted.

It seems a lot of banks are wrongly interpreting the Data Protection Act (DPA) 1998 as a requirement to only disclose six years worth of personal data, and this is also wholly wrong.

The DPA clearly states that all information held must be disclosed and it has no correlation to the Limitation act 1980 at all.

You have only provided me with partial information regards accounts xxxxxx, and xxxxxx, which is far from complete, and not in accordance with my request and no explanation as to why the information has not been provided.

 

Once again I now ask that you provide me with all records relating to my banking history with yourselves regards the above accounts.

Whilst not exhaustive and for the avoidance of doubt I shall list what I require:

 

• Full copies of all contracts that exist between myself and your organisation; including copies of any documents you hold in support of same.
  
• Copies of all statements relating to the above accounts.
  
• Copies of all correspondence, including all letters, faxes, emails and memos sent and received between ourselves, and any other third party in relation to any of the above accounts.
  
• Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.
  
• Full details and copies of any documents upon which you relied when you have provided my personal or financial information to any individual, organisation or third party.
  
• Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information. .
  
• Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.
  
• Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, reason for deletion, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

As I have previously issued this request, and given you a full 40 days to comply, I can not now be expected to wait the same period again, so shall give you a further 14 days from the date this letter is deemed served, in order to comply. If retrieval of any of this information should require longer than this, I would like an explanation as to why, and a reasonable estimate of the length time it should require (up to a maximum of 40 days).

In the meantime I would like any information that is more readily accessible to be sent without delay.

I have previously provided you a cheque for £10 to cover the cost of this request.

Please contact me to arrange a secure method and time to deliver to my home address.

Yours faithfully

 

 

 

You have 14 days to comply with this request.If you fail to comply fully I shall enter a formal complaint with the Information Commissioners Office which could result in a fine and prosecution