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

[zubo]

photoman,

 

That is absolutely what I need - I will steal it if I may....

 

thank you so much.

 

Z

[Guest Battleaxe]

I will await the outcome and see how the bank responds regarding the pre six years. they have gone very quiet since the investigation started.

 

I will go with my legal advice.

[debt_mountain]

I have a hearing next week about the LA and the BOS are planning on having it struck out under LA s5.

 

Is my new additional arguement

 

"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 they made a mistake in paying those charges believing the bank to be applying those

charges in accordance with common and statue law.

 

Do I just have to quote this verbatim to the court?

 

I have already used the case/robinson stuff, concealment etc in my bundle.

 

and as I have not included the case law in my bundle do I just send it by fax to the court and request the allow me to add it to my evidence bundle?

[maybelline]

http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html

 

this might help, I think there is standard disclosure but depends on the type of hearing, my sister nearly got her case struck out becuase she did not provide a document she referred to but was give more time to get it all sorted (only 7 dyas though) good luck

 

ps GE, did you have to N1 before they settled?

[photoman]

I have a hearing next week about the LA and the BOS are planning on having it struck out under LA s5.

 

Is my new additional arguement

 

"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 they made a mistake in paying those charges believing the bank to be applying those

charges in accordance with common and statue law.

 

Do I just have to quote this verbatim to the court?

 

I have already used the case/robinson stuff, concealment etc in my bundle.

 

and as I have not included the case law in my bundle do I just send it by fax to the court and request the allow me to add it to my evidence bundle?

 

This is from my POc

 

Look up the actual act, and also the cases mentioned.

 

11. The Claimant seeks permission to proceed with the claim under section.32 (1)(b) of The Limitation Act 1980. This is on the grounds that the Claimant could not reasonably have discovered the Defendant’s deliberate concealment of the facts relevant to the Claimants right of action, before the report of the OFT was published on 5/4/2006. Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where;

b). "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges. Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.

12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)© of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties. The Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5/4/2006.

Section 32(1)© of the 1980 Act postpones the commencement of the limitation period where;

c). "the action is for relief from the consequences of a mistake"

The claimant cites inter alia Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as a precedent in this matter.

13. In respect of paragraphs 11 and 12 section 32 of the Statute of Limitations act (1980) stipulates that:

"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".

14. In regards to paragraphs 11 & 12 the Claimant draws attention to inter alia the following cases, in relation to the notion of stare decisis, to support his case:

i. Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349

ii. Deutsche Morgan Grenfell V Inland Revenue (2003) EWHC 1779 (ch)

iii. Cave v Robinson Jarvis (House Of Lords) [2002] UKHL 18

 

 

regards

 

photoman

[zootscoot]

b). "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".

The facts relevant to the Claimant’s right of action under s.32 (1)(b) are that the Defendant has continually presented its charges as if they were in respect of a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges. Thus the Defendant can be seen to have been operating without accountability to its customers, and so to have consciously concealed the facts.

 

 

This relates to opinion rather than fact. For concealment you need to establish that 'facts' were concealed eg the actual cost of administering the breaches. Without this fact you were deprived of an essential fact relevant to your right of action.

 

12. Alternatively, the Claimant seeks permission to proceed with the claim under section.32 (1)© of The Limitation Act 1980. This is on the grounds that payments (and interest thereon), were conceded under the mistaken presumption that they did not amount to penalties.

 

This relates to a mistake of law (ie the question of whether charges are a liquidated damages clause or a penalty is a matter of law). Whilst money paid under a mistake of law can now be recovered following Kleinwort Benson v Lincoln CC, the difficulty here is that there has not actually been any change in the law to show that your previous view of the law was mistaken. You paid the charges not knowing if they were penalties and in the absence of any judicial finding you still do not know if they are penalties. No law has actually changed. There is nothing to suggest the law is different from what you believed it to be.

[Pliny the Penuriosus]

True Zoot that is why the 1st matter triable is whether or not the charges are lawful. It's the banks refusal to produce evidence to counter our argument that they are that causes us to win

[zootscoot]

True Zoot that is why the 1st matter triable is whether or not the charges are lawful. It's the banks refusal to produce evidence to counter our argument that they are that causes us to win

 

Unfortunately generally the limitations arguments will be heard at a strike out hearing where the lawful nature of the charges will not be contested.

[Pliny the Penuriosus]

Agreed Zoot That's why i think such claims should be pursued as 2 distinct claims. 1 post 6years and once successful 2nd pre 6years.

 

Much easier to argue unlawfulness if the bank has settled in full the post 6 year claim

[debt_mountain]

Much easier to argue unlawfulness if the bank has settled in full the post 6 year claim

Is it not enough that they have settled the pre 6 years as part of your claim? then dispute the remainder as statute barred.

 

My case has a slight twist that they have paid out on the first 6 years plus 2 weeks into the alleged limitation period but I have also claimed for the interest and PPI on a loan to repay an overdraft made fully of charges. So my strike out hearing is also to discuss the loan and my resitution.

 

Does the fact they have paid me 6 years and 2 weeks help me any.

 

They also delayed my SAR by a couple of months as a tactic to delay the final payout.

 

Thanks for any advice, I am really looking forward to seeing them next week in court.

[Pliny the Penuriosus]

If they argue limitation it won't do your pre 6 year claim any harm to include mention of their pre 6 year settlement. But I should wait until they do

[TANZARELLI]

This seems to have gone full circle. Would it not be better to word POC's to cover both concepts ie:

 

A) the Claimant contends that the period of limitation should start from the date of his initial demand for repayment of the proposed unlawfull penalty charges, this runs from the date of the Claimants premiminary request to the Defendant to repay the charges applied to the Claimants account. This claim is based on Joachimson v Swiss Bank Corporation [1921] 3 KB 110, where In his judgement Atkin LJ pointed out:

 

‘The practical bearing of this decision [as to the necessity for a demand] is on the question of the Statute of Limitations … The result of this decision will be that for the future bankers may have to face legal claims for balances on accounts that have remained dormant for more than six years.’

 

B) In the alternative the Claimant contends that 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 further contends that he made a mistake in paying those charges believing the bank to be applying those charges in accordance with common and statue law, so therefore section 32 © should apply and the period of limitation should not begin until the time when this mistake was discovered by the Claimant, the Calimant contends that this is April 06, the date of the OFT report into Credit Card Charges.

c) In the alternative the claimant contends that the Defendant has deliberately concealed the true cost of its actual lliquidated losses, also the the Defendant has had ample time to provide the Claimant with a breakdown of these proported losses, but the Defendant has chose to ignore the Calimants request for this information on a number of occasions, and therefor the Claimant contends that the Defendant has concealed the true cost of its losses and that the said charges are therefore purely a profit making vehicle. This coupled with the fact that the Defendant is also blatently re-wording its Terms & Conditions to cloak/veil its charges. The Claimant contends that section 32 (b) should take effect and that the period of limitation should only apply form the date when the claimant discovered this concealment. There fore the Claimants claim is still within the primary limitation period.

 

Or something like that.

 

Any thoughts?

[zootscoot]

What have dormant accounts got to do with our claims?

[mackem67]

Hi , sorry to butt in on this thread but I am looking for arguments to support my claim.

I have received part settlement from Halifax, but they are defending the rest based on the fact that it goes back 6 years and 4 months and no tjust 6 years.

Therefore they are saying I am not entitled to the first 4 months charges and am only entitled to charges going back 6 years from the date of service of N1 form.

Hope this makes sense to someone as I have recieved AQ today and am a bit stumped.

Also it has on letter from court that I have to pay £100 on filing the AQ, the original claim was for £2886 but £2552 has been paid already.

Do I need to pay the £100 based on the claim as it stands now?

Thanks to anyone who can help

[Dusary]

 

B) In the alternative the Claimant contends that 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 further contends . . . .

 

Hmmmmm!

 

I don't have the (or *ANY*) legal knowledge or expertise . . . Just wondering, though, how that *defence* would apply to Scottish Law?

 

Obviously, I have a vested interest!

[debt_mountain]

The limitation act does not cover scotland. You need to look through the Scotish forumto get the facts.

 

I took BOS to court in England to get round this. I used the HBOS address in Leeds and that was used the English law and the 6 years charges not just 5. I have the limitation act hearing on Wednesday next week.

[Dusary]

Thanks debt mountain for that!

 

You prob didn't notice kennythecelt's info from BoS who are treating their Scottish domiciled customers exactly as they are treating their English ones (6 years - not 5).

 

I'll go back to the Scottish Forum and search for the Limitations Act.

 

Still wondering, though, about one of my BoS accounts. They have given me statements going back to Jan 1996. The total is almost £22k . . . which I could WELL do with!!

 

Does anyone have any idea what might happen if a Court throws out the pre 6 years claim if it is included with the normal 6 years claim?

 

Good luck on Wednesday!!!!

[Pliny the Penuriosus]

Hi , sorry to butt in on this thread but I am looking for arguments to support my claim.

I have received part settlement from Halifax, but they are defending the rest based on the fact that it goes back 6 years and 4 months and no tjust 6 years.

Therefore they are saying I am not entitled to the first 4 months charges and am only entitled to charges going back 6 years from the date of service of N1 form.

Hope this makes sense to someone as I have recieved AQ today and am a bit stumped.

Also it has on letter from court that I have to pay £100 on filing the AQ, the original claim was for £2886 but £2552 has been paid already.

Do I need to pay the £100 based on the claim as it stands now?

Thanks to anyone who can help

 

The pre 6year arguments are complicated & although I don't like saying it (cos I hate banks) but do you really want to get into it for the sake of £300!. Also I suggest the court would no doubt see as it as you simply trying to make a point if you continued with your pre 6 year claim

[dad]

Tanz,

 

I agree with your suggested approach. I reclaimed 10 years of charges. Initially the bank claimed limitation but on receipt of the joint Joachimson/S32 argument they dropped the issue like a scalded cat. Might as well let them know up front that you mean business. It also has the advantage of giving a judge one less reason to strike out in the 'lottery'

 

Dad

[westwell]

Agreed Zoot That's why i think such claims should be pursued as 2 distinct claims. 1 post 6years and once successful 2nd pre 6years.

 

Much easier to argue unlawfulness if the bank has settled in full the post 6 year claim

 

I have started a claim for the last 6 years and was thinking of amending my claim with an N244 to include pre 6 years charges but reading through is it better to start a new claim for pre 6 years once settlement is recieved on my existing claim?

[TANZARELLI]

I have started a claim for the last 6 years and was thinking of amending my claim with an N244 to include pre 6 years charges but reading through is it better to start a new claim for pre 6 years once settlement is recieved on my existing claim?

 

I would say not as it is important to keep the claim intact IMHO

 

Tanz

[westwell]

Thanks for the advice.

[southyorksman]

Can someone give me some advice please.

 

I have already calculated 6 years worth of charges and sent the LBA and final demand to Nationwide without even a derisory offer to settle from the building society in return, just letters "holding the T&C line".

 

I have now rec’d my almost full S.A.R - (Subject Access Request) bundle which contains flexaccount statements back to 1998 and branch records back to when the account was opened in 1990. I have the evidence to make a bigger claim back to 1998 but would I then risk losing the lot if the limitations act is upheld. Also would I need to send another LBA and another final demand before I issue a court claim.

 

So should I just issue the 6 year claim for charges, debit interest plus contractual interest and then, when I have won that, go back for the rest or will that weaken my case for the second round. Also if they settle before judgement in the first case will I then have weakened my second case as all the charges will be over 6 years old. Or am I better off starting again from 1998 and claiming 9 years in one go?

 

Help!!

[newbody]

for a good exanple of pre 6 year harge claiming i would recommend that you read a thread by a person called BONG won pre 6 year and current charges

[TANZARELLI]

for a good exanple of pre 6 year harge claiming i would recommend that you read a thread by a person called BONG won pre 6 year and current charges

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/33005-bong-hsbc-contractual-interest.html

 

This is what you are referring to newbody.

 

Tanz