Limitation Act 1980 s32(1),a,b,c + (2) Actual Case Law

[progenic7]

To everyone,

 

i have been pondering the limitation act especially sec 32 (1) recently, mainly due to a fellow CAG member having his case struck out (BS from cobbets). This got me pretty worried as i will be making a claim very similar to his in the near future and wanted a bullet proof argument to back up my claims. Of course the best evidence is actual case law, as judges will tend to follow previous cases and oblige their reasoning from these cases. So heres a few juicy snippets that i feel would look pretty good to any judge, no matter what the argument from the other side.

 

Here is the statute:

 

32.--

• (1) .... 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....

heres the case law to use to back your argument (the other sides case law will be very weak):

HOUSE OF LORDS

 

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Hobhouse of Wood-borough Lord Millett Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

 

IN THE CAUSE

 

CAVE

(RESPONDENT)

v.

ROBINSON JARVIS & ROLF (A FIRM)

(APPELLANTS)

ON 25 APRIL 2002

[2002] UKHL 18

10. In Brocklesby v Armitage & Guest (Note) [2002] 1 WLR 598 the plaintiff claimed that the defendants, who were a firm of solicitors, had negligently failed to procure his release from his mortgage obligations. The defendants were not accused of any impropriety or deliberate wrongdoing or of having deliberately concealed anything from the plaintiff. They denied that the plaintiff was their client or that they owed him any duty of care, and denied that they had been negligent in any event. They also pleaded that the action was statute-barred. In his reply the plaintiff sought to rely on section 32(2) of the Act, but he did not and could not allege that the defendants were aware of the fact that they had been negligent.

11. Despite the absence of any allegation of deliberate wrongdoing, a two-man Court of Appeal held that the plaintiff had sufficiently pleaded a "deliberate commission of a breach of duty" within the meaning of section 32(2) of the 1980 Act. In the course of an extempore judgment Morritt LJ held that ignorance of the law is no defence, and that it is sufficient to bring the case within the subsection that the defendant should have known that he was acting (or presumably failing to act); it was not necessary that he should also have known that his act (or failure to act) gave rise to a breach of duty. It was sufficient that (at p 605G)

"the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

12. On this footing a person who sets out conscientiously to perform his duty but does so in a way which is subsequently found to have been negligent, thus constituting a breach of his duty of care, is liable to be sued without limit of time even where he denies that his conduct was negligent.

Brocklesby v Armitage & Guest was followed in Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2001] 1 All ER 182, where the plaintiff alleged that the defendant had given it negligent tax advice. The defendant denied that his advice had been wrong, let alone negligently wrong. Following the decision in the Brocklesby case, Laddie J held that it was sufficient to bring the case within section 32(2) that the defendant had intentionally given the advice in question and that (if negligent) it amounted to a breach of duty; it was not necessary that he should have appreciated that his advice was wrong or that he had been negligent. Even if all the facts are known to a plaintiff, the judge held, the intentional commission of a breach of duty in circumstances where the breach is unlikely to be discovered for some time results in a legal fiction, namely that the facts are unknown.

 

20. Lord Denning MR explained the meaning of the expression "concealed by the fraud of [the defendant or his agent]" in King v Victor Parsons & Co [1973] 1 WLR 29, 33-34 as follows:

"The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne [1899] AC 351 and Applegate v Moss [1971] 1 QB 406. In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly': see Beaman v ARTS Ltd [1949] 1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough:

LORD SCOTT OF FOSCOTE+ said in this hearing the following:

"3.A Further, the negligent drafting by the defendant of an agreement which did not confer on the claimant the rights which it ought to have conferred was

(i) an intentional act (although, for the avoidance of doubt, it is not alleged that it was done in the knowledge that it was a breach of duty); and

(ii) done in circumstances in which the breach of duty was unlikely to be discovered for some time.

In the premises, pursuant to section 32(1) and (2) of the Limitation Act 1980, time did not begin to run until the claimant discovered or could with the exercise of reasonable diligence have discovered the breach. Even on the defendant's case, that date was not before February 1994. Accordingly the proceedings were issued within the primary limitation period."

The Brocklesby point

39. Section 32 of the Act provides, so far as relevant:

"(1) …. 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. ….

(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. ….

(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act)."

44. Lord Browne-Wilkinson, noting that the 1980 Act was a consolidating Act, said, at p 144, that:

"unless there is an ambiguity, it is not permissible to construe consolidating Acts in the light of their statutory history"

and that

"much of the difficulty in this case is raised by the investigation of the statutory history and the decisions of the courts on earlier statutes"

He held, at p 145, that:

"Section 32 of the Act of 1980 is not ambiguous. On the plain meaning of the words any deliberate concealment of relevant facts falls within section 32(1)(b) with the consequence that, in applying the statutory time limits, time does not begin to run until the concealment is discovered."

48. Morritt LJ [2002] 1 WLR 598, 602 summarised Mr Brocklesby's case thus:

"Mr Brocklesby relies on paragraph (b) of section 32(1) [of the 1980 Act] as expanded by subsection (2). He contends that there were three breaches of duty, that is the failure to take steps to procure Mr Brocklesby's release from the obligations to the building society; the failure to do anything with the executed contract/transfer; and the failure to inform Mr Brocklesby of either of the first or second breaches of duty. He suggests that each of them was deliberate in the sense of being intentional and each was committed in circumstances where, by their nature, they were unlikely to be discovered for some time."

49. After referring to Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1996] AC 102 and King v Victor Parsons & Co [1973] 1 WLR 29 and to paragraph 2.9 of the Law Reform Committee's Final Report on Limitation of Actions (1977) (Cmnd 6923) that had preceded the 1980 Act, Morritt LJ expressed his conclusions in the following passage, at p 605:

"When one turns to the terms of section 32 [of the 1980 Act] itself, under subsection (1) there is a clear contrast between the action based on fraud and paragraph (b), the concealment of any fact relevant to the plaintiff's right of action being deliberate. The requirement is that the fact relevant to the cause of action has been deliberately concealed from him by the defendant. But subsection (2) amplifies what is meant by deliberate concealment and requires that for the purposes of subsection (1) deliberate commission of a breach of duty, etc, amounts to deliberate concealment of the facts involved in the breach of duty. Generally speaking, and I do not say that there may not be exceptions, the civil law, and, so far as I know, the criminal law, does not require that a person should know the legal consequences of the act which he commits. Generally speaking, if he knows of the act and he intends the act, but is unaware of the legal consequences, his unawareness is immaterial, for it is trite law that ignorance of the law is no defence. It appears to me that had Parliament intended in the case of a deliberate concealment under section 32(1)(b) [of the 1980 Act], as amplified by subsection (2), that there should be both deliberate commission of an act in the sense of knowingly and intentionally committing the act and also knowledge that such commission gave rise to a particular legal consequence, then it required clearer words to spell that out than are to be found in subsection (2) or subsection (1).

Accordingly, the conclusion I reach is that it is not necessary for the purpose of extending the limitation period pursuant to section 32(1)(b) to demonstrate that the fact relevant to the plaintiff's right of action has been deliberately concealed in any sense greater than that the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence."

 

By the fact that the bank to this very day refuses to prove their costs the judge will almost certainly go with your argument, that they new then and now that their costs do not reflect their losses. job done ;-)

 

ps sorry its a long one

[pict]

Projenic7,

Very interesting thread. I am getting ready for court at the start of march and think that your argument will be very helpful.

I have also been thinking along the same lines as yourself scratching my head on how to argue my case to get the judge interested and I think this will go a long way to getting a settlement.

Cheers........

[progenic7]

Pict,

 

your very welcome mate it took days of searching the net and trawling through crap till i got it, but seeing as it was written from case law which prove the simple fact, almost any argument given by the other side will fail.

I know its long but the judge will spend the time and read it im sure, and im also sure he will draw the same conclusions as myself. Its a very simple argument that the banks only re enforce by their own actions. We have them bang to rights now, any argument from the other side will be based on very flimsy case law (probably a couple of lines long) with no substance whatsoever.

 

enjoy ;-)

 

progenic

[Glenn UK]

We have them bang to rights now, any argument from the other side will be based on very flimsy case law (probably a couple of lines long) with no substance whatsoever.

 

enjoy ;-)

 

progenies

 

As much as i have read the same case law and have included it in my thoughts, what i am interested to know is how you come to the conclusion that the banks defence 'will be based on very flimsy case law (probably a couple of lines long) with no substance whatsoever'?

 

Out of interest have you researched the other side of the arguments against your use of the above case?

 

I ask because I had always assumed that the lawyers representing the banks have the best resources money could buy, they can hire the best barristers they want and have access to large sums of cash which we don't.

 

It wold be nice to think they wont turn up at court but its not one you or anyone else should bank on when preparing your claims.

 

JMHO

 

Glenn

[progenic7]

Hi glenn

 

point taken but the truth is the case law against s32 (1) is very limited, if you refer back to the case used against fellow CAG members to get a strike out it was very weak (however the CAG member didnt have any to back himself up).

Your right about barristers having access to good material, though to be honest i get the impresstion that they may be a little busy right now. But based on what they have turned up in court with to actually use in their defence Is pretty weak. Considering as you rightly point out they have access to the very best, and what they have produced is utter rubbish.

 

Unless of course you have some show stopping case law they have produced and im not aware of, if this is the case then id like to see it please.

 

I really do feel that the above case law will swing the judge, i will be using this in my claims for sure.

 

cheers progenic

[Glenn UK]

Hi glenn

 

point taken but the truth is the case law against s32 (1) is very limited (I am not sure upon what you base this comment? I'm sure if you had access to the right resources ie legal databases and knew how to use them properly that you would find a good healthy list) as it is using google and Ask i have found half a dozen fairly easily.), if you refer back to the case used against fellow CAG members to get a strike out it was very weak (however the CAG member didnt have any to back himself up). I haven't heard of any case law being quoted by defendants in this respect, if you have a link to a particular thread that would be useful.

Your right about barristers having access to good material, though to be honest i get the impresstion that they may be a little busy right now. I'm sure they are but their support will be there and it would be foolish to think otherwise. But based on what they have turned up in court with to actually use in their defence Is pretty weak. Which cases/threads are you talking about because as far as i can see from the threads i have read they have to date be reasonably successfully in getting charges struck out due to limitation/laches. I may be wrong but i don't think i have heard of anyone actually arguing in court and winning over the limitations act or laches yet? Considering as you rightly point out they have access to the very best, and what they have produced is utter rubbish.To which threads are you pointing to? I haven t seen any details of arguments put foreword to prevent claiming charges older than six years beyond simple statements in standard defences.

 

Unless of course you have some show stopping case law they have produced and im not aware of, if this is the case then id like to see it please. I don't have anything against using Sec 32.1.b or c, but that doesn't mean it may not exist.

 

I really do feel that the above case law will swing the judge, i will be using this in my claims for sure.

 

cheers progenic

 

I think you may well be right, but thinking and knowing are tow entirely different things.

 

It is also a point worth noting that simply knowing about the case law and using it effectively are two very different things.

 

I guess what I'm saying is to not get complacent because you think you know the game they're playing. Anything you do come up with is likely to be the stronger for it.

 

If you do have answers to any of the questions above it would be good to know.

 

Glenn

[progenic7]

I think you may well be right, but thinking and knowing are tow entirely different things.

 

It is also a point worth noting that simply knowing about the case law and using it effectively are two very different things.

 

I guess what I'm saying is to not get complacent because you think you know the game they're playing. Anything you do come up with is likely to be the stronger for it.

 

If you do have answers to any of the questions above it would be good to know.

 

Glenn

 

Hi Glenn,

 

sorry i wasnt able to respond properly this morning as i was just about to leave the house on my way to work. I see what your saying but i dont agree on a few points.

 

1, they are very busy and this clearly shows by the messed up and incomplete defence the barristers are entering, ofcourse they will enter a defence but how valid this will be is questionable. But your right none of us should be too complacent (and i was probably being a little over confident on this issue )

However when you dig deep in case law and actually try and find reference to actual cases uses this defence there isnt any (atleast what i can come up with) this doesnt mean there isnt any at all however.

But like in the case i was referring too http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland-bank/11427-walton-rbos.html?highlight=paul when you actually look at the strength and validity of this little gem, in my humble opinion it is indeed very weak.

And any other likely defence to be put forward would consist of something along these lines (in my opinion)

But when you consider the case law i have put forward and look at the context these cases were also being discussed, and by whom. Then in my opinion it makes the case twice as strong.

I doubt whether many judges would turn a blind eye to the impact this text would have. Of course wrong time, wrong place and anyone could be unlucky. But the point you make about knowing the law and using the law correctly is vitally important (and a very valid point)

We all should take great care and time in preparing our selves for court, understanding the law and how to use it.

 

FWIW i have read many of your posts and threads and i hold you in high regard as a fellow CAG member, i know you know your stuff and i welcome your feedback.

 

I have seen many many references to people wanting a proper argument to the limitation act s32, but as yet i havnt seen anybody come up with any decent case law ( i may be wrong and correct me if i am). I would like to think i have achieved this in the above passages. And i think used properly and in the correct context along with all the other arguments needed in the claim, it could prove very usefull in a pre six year (time barred) case.

 

Johnny

[Glenn UK]

Johnny

 

I wouldn't want to detract from your post and i don't mean to, i have been concerned for some while about people being complacent over their claims and it has caused some of them problems.

 

As much as the Case you highlighted is valuable simply knowing about it is only half the battle.

 

something you are aware of but many are not.

 

Hopefully I haven't been too negative, as i say i found the case you highlighted very useful and hope other do too.

 

Glenn

[progenic7]

Hi Glenn

 

yeah i think your right, i often notice as im reading through various threads fellow CAG members with only a few days before their court bundle is due to be sent in and they dont seem to have the first idea of what to do. This is very worrying as most of it is down to rushing, without the proper homework.

I will be making two claims in the near future both based on s32 back to 1999 and i want to put together a very tight package, with very few holes in it. I would of course in due time very much welcome input from members like your self. If we can push through a good test case it stands the future cases in good stead.

Over the last few weeks i have been grabbing bits and pieces from various posts, the net, books ect in the aim of doing just this. I want to take my time over it, especially the s32 claims so its as water tight as possible.

I have noticed that the larger you make the PoC and the more points you add to it, the more likely it is that the defence make a mistake.

 

I have a feeling mine is going to be very long indeed ;-)

 

Johnny

[Josamolly]

Hi Progenic...

 

Found your thread thru one of Mcuth's... great argument although i need to read it a few more time to fully understand. These things are never written simply are they...

 

I currently have a NW claim going thru the court which is a standard 6 years plus contactual. My next claim will be with NW again from anout 1990 up to 2000, probably with contractual again..

 

So i now have 2 arguments going on, SoLA and Contractual Interest, which i think may take a good few weeks to get watertight..

 

Much respect to both yourself and Glenn, some great threads..

 

Jos

[progenic7]

Hi Josamolly,

 

yeah i think we have a good case with the limitation act s32 of course the way the case is bought to the court is vitally important. I just wanted people to have actual case law to hand as i have noticed many people ask fo it on this subject.

 

Thanks for posting and good luck with your claims

 

Johnny

[elsinore]

 

So i now have 2 arguments going on, SoLA and Contractual Interest, which i think may take a good few weeks to get watertight..

 

 

Me too Jos, except that mine is RBoS.

 

Perhaps we can compare notes from time to time?

 

Elsinore

[Mad Nick]

You might already have found a similar resource, but I recently started using this one Links to Restitution and Unjust Enrichment materials Good in that it is targetted at more or less what we are trying to do. And a good SOLA case, unless it got turned over later, seemed to be :

Kleinwort Benson Ltd -v- Lincoln City Council Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Southwark and Others; Kleinwort Benson Ltd -v- Birmingham City Council Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Kensington An [1998] UKHL 38; [1999] 2 AC 349; [1998] 4 All ER 513; [1998] 3 WLR 1095

29 Jul 1998

HL

Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead Contract, Equity Casemap

1 Cites

1 Citers

Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were unlawful. Kleinwort Benson then sought restitution of the payments on the basis of a mistake of law. Held: "the mistake of law rule no longer forms part of English law." Where the law was deemed to have changed after a court decision, money paid under a view of the previous settled law became recoverable. The law is deemed always to have been as now found. The limitation period ran from the date of the discovery of the error of law. The old rule is not to be followed. Money paid under a mistake of law should be recoverable on the same footing as money paid under a mistake of fact, subject in the same way to the defences available in the law of restitution, which include the defence of change of position. "I should consider whether parties in the position of the appellant bank were mistaken when they paid money to local authorities under interest swap agreements which they, like others, understood to be valid but have later been held to be void. To me, it is plain that the money was indeed paid over under a mistake, the mistake being a mistake of law. The payer believed, when he paid the money, that he was bound in law to pay it. He is now told that, on the law as held to be applicable at the date of the payment, he was not bound to pay it. Plainly, therefore, he paid the money under a mistake of law, and accordingly subject to any applicable defences, he is entitled to recover it." and "The present rule, under which in general money is not recoverable in restitution on the ground that it has been paid under a mistake of law, should no longer be maintained as part of English law, from which it follows that the facts pleaded by the bank in each action disclose a cause of action in mistake. There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law."

Lord Lloyd of Berwick discussed the ability of the common law to change: "This brings us to the central question. Nobody now suggests that the common law is static. It is capable of adapting itself to new circumstances. Is it then capable of being changed? or is it only capable of being developed? The common sense answer is that the common law is capable of being changed, not only by legislation, but also by judicial decision. This is nowhere clearer than when a long-standing decision of the Court of Appeal is overruled. Indeed in a system such as ours, where the Court of Appeal is bound by its own previous decisions, the main justification for the existence of a second tier appeal is that it enables the House to re-direct the law when it has taken a wrong turning. "

 

Regards, Mad Nick

[brownie24]

Progenic7

 

I have come accross your post as I appear to be having some problems at the last minute with my claim especially re. the limitations Act 1980.

 

Basically I have put a claim in with the Natwest totalling £4452.99 to date but received an offer at the weekend for £3738.55. Cobbetts have stated in the letter with their offer that because I put my MCOL in on 8 January 2007 I can only claim back last six years from Jan 2001 - Under the limitation Act 1980 you cannot bring a claim more than 6 years after the date on which the cause of action accrued.

 

However my claim goes back to Sept 2000 - which is what the statements supplied following my SAR covered. So I used the info from this period in my claim, incl. prelim letters and LBA.

 

Basically I am not willing to accept the offer made by Cobbetts and think there arguments for 6 year time constraints is just a sly tactic to try and reduce the claim but would be v. grateful if you point me in the right direction on how to word this in my response to them? How could I use the S32?

 

I have drafted the following letter, I would be grateful for any comments, changes, addition - thanks:

 

Cobbetts LLP

Ship Canal House

King Street

Manchester

M2 4WB

Dear Sir/Madam

Re: Claim No. 7QZ02387

 

Thank you for your letter dated 23 February 2007. I respectfully decline your goodwill offer of Full and Final settlement and have included the cheque you supplied in respect of that offer.

I am unwilling at this stage to accept any offer other than the full amount of the claim, ****** . In your letter you make reference to me not being able to bring a claim more than 6 years after the date on which the cause of action accrued. However I would like to point out to you that my litigation with your client, National Westminster Bank Plc, initially began on the ****** when I submitted a Subject Access Request and I have since given them sufficient time to answer to my requests without a successful outcome. I am also prepared to argue that the Limitation Act 1980 restriction does not apply under the specific exemptions in Section 32(1).

I am also shocked at the presumptions you have made that I would accept your offer and am offended by the contents of your Allocation Questionnaire. I have accordingly written to Derby County Court, who is now dealing with this claim, informing them that the information included in your Allocation Questionnaire is incorrect and the claim is ongoing. Please find enclosed a copy of this letter.

Should you wish to settle my claim in full, then please forward the balance of the claim (£xxxx) without further conditions and only then will I inform the court that the claim is settled.

I look forward to your response.

Yours faithfully

 

Thanks for any advise you could give

 

Brownie24:)

[Glenn UK]

You might already have found a similar resource, but I recently started using this one Links to Restitution and Unjust Enrichment materials Good in that it is targetted at more or less what we are trying to do. And a good SOLA case, unless it got turned over later, seemed to be :

Kleinwort Benson Ltd -v- Lincoln City Council Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Southwark and Others; Kleinwort Benson Ltd -v- Birmingham City Council Kleinwort Benson Ltd -v- Mayor Etc Of The London Borough Of Kensington An [1998] UKHL 38; [1999] 2 AC 349; [1998] 4 All ER 513; [1998] 3 WLR 1095

29 Jul 1998

HL

Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead Contract, Equity Casemap

1 Cites

1 Citers

Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were unlawful. Kleinwort Benson then sought restitution of the payments on the basis of a mistake of law. Held: "the mistake of law rule no longer forms part of English law." Where the law was deemed to have changed after a court decision, money paid under a view of the previous settled law became recoverable. The law is deemed always to have been as now found. The limitation period ran from the date of the discovery of the error of law. The old rule is not to be followed. Money paid under a mistake of law should be recoverable on the same footing as money paid under a mistake of fact, subject in the same way to the defences available in the law of restitution, which include the defence of change of position. "I should consider whether parties in the position of the appellant bank were mistaken when they paid money to local authorities under interest swap agreements which they, like others, understood to be valid but have later been held to be void. To me, it is plain that the money was indeed paid over under a mistake, the mistake being a mistake of law. The payer believed, when he paid the money, that he was bound in law to pay it. He is now told that, on the law as held to be applicable at the date of the payment, he was not bound to pay it. Plainly, therefore, he paid the money under a mistake of law, and accordingly subject to any applicable defences, he is entitled to recover it." and "The present rule, under which in general money is not recoverable in restitution on the ground that it has been paid under a mistake of law, should no longer be maintained as part of English law, from which it follows that the facts pleaded by the bank in each action disclose a cause of action in mistake. There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law."

Lord Lloyd of Berwick discussed the ability of the common law to change: "This brings us to the central question. Nobody now suggests that the common law is static. It is capable of adapting itself to new circumstances. Is it then capable of being changed? or is it only capable of being developed? The common sense answer is that the common law is capable of being changed, not only by legislation, but also by judicial decision. This is nowhere clearer than when a long-standing decision of the Court of Appeal is overruled. Indeed in a system such as ours, where the Court of Appeal is bound by its own previous decisions, the main justification for the existence of a second tier appeal is that it enables the House to re-direct the law when it has taken a wrong turning. "

 

Regards, Mad Nick

 

Nick

 

the findings of the Kleinwort Benson cases were upheld in the subseqeunt case of DMG Vs Inland Revenue Edit this was decided Oct 2006 as i recall

Glenn

[progenic7]

Progenic7

 

I have come accross your post as I appear to be having some problems at the last minute with my claim especially re. the limitations Act 1980.

 

Basically I have put a claim in with the Natwest totalling £4452.99 to date but received an offer at the weekend for £3738.55. Cobbetts have stated in the letter with their offer that because I put my MCOL in on 8 January 2007 I can only claim back last six years from Jan 2001 - Under the limitation Act 1980 you cannot bring a claim more than 6 years after the date on which the cause of action accrued.

 

However my claim goes back to Sept 2000 - which is what the statements supplied following my SAR covered. So I used the info from this period in my claim, incl. prelim letters and LBA.

 

Basically I am not willing to accept the offer made by Cobbetts and think there arguments for 6 year time constraints is just a sly tactic to try and reduce the claim but would be v. grateful if you point me in the right direction on how to word this in my response to them? How could I use the S32?

 

I have drafted the following letter, I would be grateful for any comments, changes, addition - thanks:

 

Cobbetts LLP

Ship Canal House

King Street

Manchester

M2 4WB

 

Dear Sir/Madam

 

Re: Claim No. 7QZ02387

 

 

Thank you for your letter dated 23 February 2007. I respectfully Decline your partial offer of Full and Final settlement and have included the cheque you supplied in respect of that offer.

 

I am unwilling at this stage to accept any offer other than the full amount of the claim, ****** . In your letter you make reference to me not being able to bring a claim more than 6 years after the date on which the cause of action accrued. However I would like to point out to you that my litigation with your client, National Westminster Bank Plc, initially began on the ****** when I submitted a Subject Access Request and I have since given them sufficient time to answer to my requests without a successful outcome.I feel if your client had disclosed their true costs to me, this would have ended any dispute. However although your client has had every oppertunity to do so, they have failed to avail themselves in this matter. I am also prepared to argue and show the court that the Limitation Act 1980 restriction does not apply under the specific exemptions in Section 32(1).a, b, and c and therefore my claim is not time barred under s5. I am fully prepared to prove to the court that your clients charges are punitive in nature, excessive, unfair, not a true reflection of actual costs. And therefore show the court that my claim is not time barred due to your client concealing and or fraudulently concealing and or making a misrepresentaion and or making a fraudulent misrepresentaion. Further i aver that your client has taken these charges in a mistake induced by fraud.

Without predujice to the above paragraph i aver that s5 applies from the time i made the SAR request under the DPA indicating i would be reclaiming these punitive, excessive charges, from that date.(date here)

I also aver that your client is deliberatly concealing the true costs of these charges, because your client realises that they have been taken unlawfully. Further i fully expect any judge to the realise this fact and make judgement acordingly. As such this claim remains unresolved and therefore i look forward to seeing a full breakdown of costs from your client forthwith.

I hope this fully clarifies my position on this matter.

 

I am also shocked at the presumptions you have made that I would accept your offer and am offended by the contents of your Allocation Questionnaire. I have accordingly written to Derby County Court, who is now dealing with this claim, informing them that the information included in your Allocation Questionnaire is incorrect and the claim is ongoing. Please find enclosed a copy of this letter.

 

Should you wish to settle my claim in full, then please forward the balance of the claim (£xxxx) without further conditions and only then will I inform the court that the claim is settled. Further i aver that confidentiality is a service and as such this service has costs attached to it, therefore if your require this service from me dont hesitate to contact me for details of costs.

 

I look forward to your response.

 

Yours faithfully

 

 

Thanks for any advise you could give

 

Brownie24:)

 

Hope this helps a little

[brownie24]

Progenic7

 

Thanks v much for your knowledge and comments. I am off to make amendments to my letter which I will then get faxed over to Cobbetts.

 

Cheers

 

Brownie24:)

[Glenn UK]

Just a thought, can you prove they fraudulently concelaed the unlawfulness of the chagres?

 

Concelaed i would have no problem with proving, fraud is a big claim and may come back to bite you in the arse if you dont have any proof.

 

JMHO

 

Glenn

[photoman]

Just a thought, can you prove they fraudulently concelaed the unlawfulness of the chagres?

 

 

From the Fraud Act 2002 (with some interesting bits in Bold)

Fraud

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in

subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by wrongfully failing to disclose information), and

© section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6

months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding

10 years or to a fine (or to both).

2 Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it—

(i) knows that it is untrue or misleading, or

(ii) is aware that it might be.

(3) “Representation” means any representation by words or conduct as to fact or

law, including a representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

3 Fraud by wrongfully failing to disclose information

(1) A person is in breach of this section if he—

(a) wrongfully fails to disclose information to another person,

(b) is dishonest in failing to do so, and

© intends, by failing to do so—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A person (D) wrongfully fails to disclose information to another person (P) in

two situations.

(3) The first is where—

(a) D is under a duty under any enactment, instrument or rule of law to

disclose the information to P, and

(b) D knows that the circumstances which give rise to the duty to disclose

the information to P exist or is aware that they might exist.

(4) The second is where—

(a) the information is the kind of information that P trusts D to disclose to

him,

(b) D knows that P is trusting him in this way or is aware that he might be,

and

© any reasonable person would expect D to disclose the information to P.

4 Fraud by abuse of position

(1) A person (D) is in breach of this section if he—

(a) occupies a position in which he is expected to safeguard, or not to act

against, the financial interests of another person (P),

(b) dishonestly and secretly abuses that position, and

© intends, by means of the abuse of that position—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) D abuses his position secretly only if he believes that P and any person acting

on P’s behalf are ignorant of the abuse.

(3) D may be regarded as abusing his position even though the conduct alleged to

amount to the abuse consists of an omission rather than an act.

7 Liability of company officers for offences by company

(1) Subsection (2) applies if an offence under this Act is committed by a body

corporate.

(2) If the offence is proved to have been committed with the consent or connivance

of—

(a) a director, manager, secretary or other similar officer of the body

corporate, or

(b) a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of the offence and liable to be

proceeded against and punished accordingly.

They may or may not have fraudulently concealed the unlawfullness of their charges, in fact it would be hard to prove whether or not they they were aware of the unlawfullness. However, they certainly concealed the nature of the charges, by representing them as being truly reflective of the costs involved in dealing with such matters, with statements such as "...dealing with these matters involves additional costs, and accordingly you will be charged £x" or whatever. They knew that the charge was not representative of the true costs, and instead provided them with a profit. They were aware of this, and must have been aware from the outset, simply by looking at their own accounts, yet continued to represent them as true costs. This is concealment. Fraud encompasses by definition an element of concealment or misrepresentation in order to gain advantage or enrichment.

Back to whether or not they were aware of the unlawfullness of the charges. To prove they were not, would require an admission that they/ or their legal advisors were incapable/incompetent. Not good for Business.

So they either:

a/ Were aware of the unlawfullnes, yet concealed such. Thus Fraud.

b/ Were unaware of the unlawfullness of the charges. Then the onus is just on proving that they should (with all their experience, and legal counsel) have reasonably been aware. Again,easily demonstrated by their acounts.

Even, if they could prove ignorance, this would mean an admission of Iincompetence, negligence, and inadequate care and attention in a position of trust........was that all our customers and shareholders leaving that trail of dust ??

 

Concelaed i would have no problem with proving, fraud is a big claim and may come back to bite you in the arse if you dont have any proof.

 

JMHO

 

Glenn

 

Any comments ??

[Glenn UK]

its all very good but it doesn't prove intent and this is what you need to prove fraud its also related to individuals as opposed to the corporate body. You would i think need to find an individual who benefited directly in order to show fraud. Even though an individual may have benefited from the profits of the company by way of bonuses its doubtful this would be seen as a fraudulent gain IMHO.

 

IMHO you are on very thin ice writing to them alleging they have committed fraud unless you have proof.

 

You cannot even prove the charges are unlawful, note i said proof, there is currently none. Even the OFT said this effectively in their report into credit card charges.

 

What there is in relation to charges is a lot of circumstantial evidence pointing to their unlawfulness, this doesnt constitute proof IMHO.

 

Everything i have found allows me to feel i can show they concealed the lawfulness of the charges but this will only become proof if i can prove it in a court of law.

 

I have no doubt that you will not at the moment be able to prove fraud, and its a serious allegation and i wouldn't be surprised if they didn't come back with a threat of suing for defamation, or is it slander or libel? Cant remember which one would apply here.

 

I could of course be entirely wrong, but i don't see the point in making a threat if you don't have the means to back it up, and as i say i haven't seen anything approaching what might be called proof of fraud yet. It may come though if we are lucky.

 

Edit incidentally its all kind of academic because you dont imho need to prove fraud to show concelament and of course the claimant made a mistake by paying the charges. There are other toues to dispencing with the limitations act, then lacjes comes into play. But either way i think the use of the fraud is a bit of a gamble and you dont need it.

[photoman]

Glenn

Take your points on board. Have not myself decided whether I would go down this route, I was just adding to the discussion.

Regards proof of intent. I think the fact that the charges obviously, and self admittedly have made a profit, yet have continually been presented as costs to cover expenses incurred is evidence of continued intent to conceal, and thus fraudulent under section 2 Fraud by representation.

Also this does state that they only have to have been aware that it might be a mis representation (as I have shown in bold)

Also the Bill does cover companies as shown by the last section of the bill (section 7) in my post.

 

Anyhow. I think there is mileage in this route, yet it is a new approach, and I agree would need to be handled with great care to avoid any counter charges.

[Glenn UK]

Glenn

Take your points on board. Have not myself decided whether I would go down this route, I was just adding to the discussion. Its of course good that you do because the forum wouldn't be what it is without you and us contributing.

Regards proof of intent. I think the fact that the charges obviously, and self admittedly have made a profit, yet have continually been presented as costs to cover expenses incurred is evidence of continued intent to conceal, and thus fraudulent under section 2 Fraud by representation. As much as i see your logic, you are missing the point i made perhaps, and that is this is one interpretation of the facts we have, another view is that presented by the banks, and they say the charges are lawful. For them to change their position now would n fact be an admission of their unlawfulness so that are between a rock and a hard place. Not thats i give a damn about them in this respect but they effectively cannot give in because then they will open the flood gates.

Also this does state that they only have to have been aware that it might be a mis representation (as I have shown in bold)

Also the Bill does cover companies as shown by the last section of the bill (section 7) in my post. It covers officers of corporate bodies i believe which is slightly different.

 

Anyhow. I think there is mileage in this route, yet it is a new approach, and I agree would need to be handled with great care to avoid any counter charges.

 

I do think its a good route, i have myself had similar thoughts but am pretty sure we don't have the evidence to use this right now.

 

i would really like to be shot down in flames on this one though.

 

Glenn

[photoman]

Glenn,

Understand your point on the Banks not conceding to the unlawfullness of the charges, and maintaining that they have never had any reason to the believe they could be in their defense against the probability element. However my arguement centers on the grounds they have maintained for them being actually lawful ie, that the charges are not punitive and actualy reflect their costs. This decalaration can be easily disproven by the evidence of the profits made from such. Thus the declaration of true costs involved is a concealment, and an act of wrongful representation, thus under the bill, are are fraudulent representation.

Regards the corporation point, surely they are a corporation ?

 

From the Oxford dictionary:

 

corporation

 

 

• noun 1 a large company or group of companies authorized to act as a single entity and recognized as such in law. 2 Brit. a group of people elected to govern a city, town, or borough.

[Glenn UK]

Photoman,

 

I presume you will agree that there have not been any claims where the charges have been declared unlawful by a court yet?

 

On this basis we do not know for certain that the charges are unlawful. Your assertion about the prifts made by the banks on charges has i believe been extrapolated from other data and is not corroborated by any hard evidence.

 

Re the issue about the bodies corporate, this is about prosecuting an individual and you have to prove they connivefd in the fraud of the company. I was not arguing that the abbey werent a corporate body, it covers individuals and not the company.

 

HTH

 

Glenn

[progenic7]

Hi Glenn,

 

i see your argument though i have a few points to amke about them

Firstly in a civil case claims of, or claiming that somebody has isnt nearly as strong as in a criminal case where imprisonment could be on the cards.

secondly as from the case law i have of my own (researched ofcourse) under the Misrep Act a concealment, in a civil case can only be bought from a fraudulent concealment. Basically if you are saying that someone has concealed something, then what you are really saying is that they did it fraudulently (unless of incompetance)

Under the said act bringing such a claim does so without liability, and is a perfectly vaiable argument, and as long as the bank does conceal (which is almost certain) it makes the claim look much stronger.

As im sure your aware under said act, it turns the burden of prooving anything to the defence. All you have to do is make that claim, then the other side has to prove they didnt fraudulently conceal anything.

I feel that they wont be able to do this IMHO, and im personnly going to push this in my own claim after asking a solicitor what they thought.

Ofcourse you may have to be carefull exactly how you word and approach such a claim.

But the proof we all already have is, firstly we have asked twice for them to prove their costs and show they are not concealing anything, and they dont avail themselves.

So we ask again this time in court and on the authority of their own actions have reason to believe that their actions are fraudulent.

Thats my opinion of it anyway, but i guess we'll see when i bring it to them in court, fingers crossed huh

 

cheers

 

Johnny