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

[Glenn UK]

Johnny

 

If i can explain, i agree with much that you have said and in a large part with photoman, in princilpe at least

 

The issue imho with the letter and comments proposed were that there was an allegation of fraud.

 

The use of the word fraud alone is imho tantamount to saying they're a criminal. The use of the word concelament has the same impact from a civil viewpoint since it implies the fraudulent nature without exposing the claimant to any risk arising from a misunderstanding.

 

If anyone is going to use that allegation in writing then they need to be aware that there maybe consequences outside of the bank claims. So you need evidence.

 

Unless you have hard evidence, and i suspect you are like many of us linking together many strands of circumstantial evidence, then you could get your arse kicked by the defendant should they so choose to take offence at being called a fraudster.

 

 

Re turnig the burden of proof onto the defendant this is true, however, you cannot simply make an allegaiton, you have to have something to base the allegation on, suspicion is not proof and i suspect if one went into court and said i suspect they have concealed something, the immediate questions is how do you know?

 

As you say until or unless it gets to court we are all guessing to a degree, i would just caution about the words you use in your letters unless you can substantiate them.

 

Glenn

[progenic7]

Glenn i here ya mate

 

but still i think that although it may not be hard evidence i feel i/we have enough to make that particular allegation without any further action, other than the judge saying i think your wrong.

 

Evidence we have

 

I have or will have laid out my case in extreme detail to the bank

 

I will have given the bank atleast three times to explain their actions and put everything right in a fair and just way.

 

i will have explained in detail that if they dont do it, then i will assume their guilt and take them to court, where they will then be liable for more costs

 

The bank will have either remained silent or denied everything, but not given one shread of evidence in return

 

Based on all the case law, the OFT's findings, many expert witness's in the banking industry saying the same thing

 

the fact thats in 100,000's of cases already passed the banks have remained silent and paid up

 

they have lowered their costs for no reason !

 

they avoid a court room like the plague

 

IMHO Glenn thats what you call evidence and that is enough to bring a case to argue in a court room, ok it may not be overwhelming evidence but i thinks its enough to atleast make the claim, without looking like an incompetant.

And your right you cant just blurt out your a fraud, but like under the misrep act fraud isnt considered in the same way as it is in a criminal case. Fraud under the misrep act is a much softer claim, almost slightly blurred of its boundaries if you will.

I think with careful thought and a good amount of evidence to make the claim i dont see why it would fail, and still i doubt very much whether they would even risk it in court

 

Johnny

[progenic7]

Hi all,

 

i wasnt going to post any more recent letters to banks ect for a atleast a couple of weeks after sending just incase there were spies around, but what the hell.

I dont see it matters too much really anyway

 

Glenn or anyone else if ya get chance have a look over this prelim i have done for online finance, its only a small claim with these people, but still a claim

 

http://www.consumeractiongroup.co.uk/forum/post-604142.html

[pict]

Hi Projenic7,

Just thought you might find this of interest

 

Started Summary Action for first £1500 of claim on 14/01/07

 

Charges date are 22/12/99 to 01/09/2000

 

Return date set as 28 Feb- the bank has failed to respond

 

Handed in form 11 today(Form of minute - no form of response lodged by defender)

 

Will phone office again on Monday to check for response

 

Hearing Date 07/03/07

 

I am really surprised that the bank has failed to defend a case that in their eyes fall outside the limitations act(5 Years Scotland).

 

I'm still going to get my court bundle set just in case.

[progenic7]

Hi Pict,

 

yeah that is interesting, dont know if i missed it but what bank is it that ahs not defended ?

 

Keep us posted with what happens

[pict]

Sorry the Bank of Scotland.

Maybe they are to busy spending their bonus payments.

[progenic7]

Pict,

 

Ok i see then its cobbetts solicitors huh, this is fairly typical of their tactics. Although its not right you may find cobbetts do defend although somewhat late and the judge turns a blind eye.

Under CPR in actual fact you are eligable for a strike out for non return of defence, but getting it from the judge is another thing altogether.

 

Keep me updated mate

[pict]

Update.......

Phone the sheriff's clerk today(Tuesday) and the HBOS has still not submitted a defense.

I'm off to court tomorrow to see what happens.

I'll post an update tomorrow.......

[progenic7]

Pict,

 

hmmm sounding like you may actually get a judgement in default, i suggest then that you make the application for judgement based on the fact they havnt produced.

 

[pict]

Just returned from court.

We have been granted a decree and will receive the extract on the 22nd March.

Thanks to everyone who has helped me get through this. Lets hope nothing else happens and they pay up.

[progenic7]

Pict,

 

good news then mate, hopefully nothing else will happen before then and you can celebrate !

 

Well done

 

Johnny

[FANTASY CHARGES]

Better Bump This One !!

[progenic7]

Thanks fantasy

 

i thought this thread had reached its natural end as it were, although the real reason i started it in the first place is becasue i thought there was a lot of people out there with potential limitations issues.

Since starting this thread i have come across quite a bit more case law on the subject, and clearly its a battle that could be easily won in court.

 

The limitation act and its relevant clauses no longer worry me, though im sure there is more to talk about on the subject

 

Johnny

[rscottw]

hi johnny could you pm me some of the case law as i am chasing barclays from1990 till 2001 for 2500 sent off mcol last week

[photoman]

hi johnny could you pm me some of the case law as i am chasing barclays from1990 till 2001 for 2500 sent off mcol last week

 

Johnny

cc me on that Pm if you don't mind ?

Thanks !!

Think I've got pretty comfortable with the sec32 business and SOL doesn't worry me too much anymore. Got some very strong case law and arguments together, and worth comparing notes. Want to get as much under my belt as can.

Done an enormous amount of work on my POC which will be submited this week. Will maybe email it to you if interested.....and would be interested to see your own if don't mind ?

[progenic7]

rscott and photoman

 

yeah will do give me a lil while to gather my stuff.

 

photoman, yeah i would be very interested to see a decent PoC, im just on LBA stage with most of my claims, and im still working on the PoC. I expect it to be completed over the next week or so, i'll forward you a copy when done.

 

Johnny

[debt_mountain]

Can someone post the case laws referred to in this thread? I have some but I am finalising my bundle today and just seeing what else I could add.

 

thanks

[sansho]

Hi All, great work done on this thread.

 

I am a bit concerned with the arguments regarding Section 32 (1)(b) of Limitation Act regarding concealment of the true cost of the charges. Would a competent barrister not argue that the opportunity existed for the Customer to bring forth action regarding the true costs or better still true losses incurred by bank over the committed breaches of the A/C Terms & Conditions at an earlier time when the charges were applied as opposed to 10 years later. As the Customer is aware that charges were debited from the account. So why now would the Claimant contest or seek to verify the validity of the bank's business costs incurred as a result of its breaches 10 years later.

 

I am just wondering if the arguments presented in this thread are cogent enough to defeat the limitation clause. Can someone shed some light if I am missing some critical facts regarding this key point. I have a hearing date set in August over an application to strike out elements of bank charges prior to March 2001.

 

I understand there are no established legal precedent or case, where it has been held that bank charges are penalty charges or indeed unlawful. My drift is simply that, concealing the true costs of the charges does not necessarily imply that the charges have failed the test of reasonableness or have been found wanting by any legal statute or case.

 

This should be seen as the "cart before the horse" strategy a lot of banks are trying to use, to reduce the amount of charges they have to pay out on. They know for a fact they will ultimately lose the case as a whole on the test for reasonableness for the charges.

 

However, the discussion about the true position and reasonableness of the charges will not be heard in a preliminary hearing to strike out or narrow elements of the charges that exceed the 6 year limit under the LMA until such times when the proper hearing on the unlawful and punitive aspects of the charges takes place (if at all it does).

 

My worry is that the bank may succeed in wiping off a reasonable chunk of the charges (pre 6yrs), before they eventually rush to settle out-of-court on the eve of the main hearing. Which will make it appear on the face of things, that they have been rewarded for their illicit actions and have in part defeated a claim for unjust enrichment that is supposed to cover all proven charges they have taken.

 

Any input or directions will always be useful....

[tezl]

is there a template for asking for pre 2001 statements. thanks.

[lickthewallfatboy]

just ask for the statements and include the dates you want..

[photoman]

is there a template for asking for pre 2001 statements. thanks.

 

 

Try this;

 

Remember it must be headed as indicated to make sure they are aware it is a Subject access request under the Data Protection act:

 

 

 

 

 

Data Protection Act 1998

Subject Access Request

Your name

Your Address

 

Date: xx/xx/xxxx

ACCOUNT NUMBERS:

xxxxxx

xxxxxx

xxxxxx

xxxxxx

 

Dear Sir/ Madam

Please supply me with all records relating to my banking history with yourselves regards the above accounts.

Most importantly, I would like copies of all the original contracts relating to the above accounts.

If they do not exist or cannot be provided, I would like confirmation of this, and an explanation as to why sent to me in writing.

Whilst not exhaustive and for the avoidance of doubt I also require all documents, statements, correspondence, memos and notes from the commencement of the above specified accounts up to the present.

In light of all the recent publicity regards the reclaiming of bank charges, most Banks appear to now only be providing a breakdown of charges in response to all and any Data requests.

It seems a lot of banks are also 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.

 

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.

You have 40 days to comply 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, and any delay in retrieval of any of the items listed is not just cause to delay anything more readily available.

I enclose 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

[tezl]

has his worked for anyone. thanks.

[photoman]

has his worked for anyone. thanks.

 

tezl

 

yes to varying degrees, but no guarantees with the banks.

 

Just give it a go and see.

 

Seems your brand new here, so you've a bit of reading to do then,

 

Please start your own thread rather than posting questions on this one, otherwise it confuses this thread for others.

 

First of all read the Frequently asked questions here

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/

DO READ THE STEP BY STEP INSTRUCTIONS !!!!!!

As you go on, you’ll also find this very helpful:

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/53182-cant-find-what-youre.html

You’ll then need to start your own thread;

Go to here:

http://www.consumeractiongroup.c o.uk/forum/

 

Find the name of the Bank your action will be against.

Click on it (the name of the Bank in Bold Blue)

On that page, you will then find a label saying "Forum Tools" (just under the list of page numbers).

Click on it. It will show you some options.

Firstly, it's a good idea to subscribe to the Forum ,as you'll then recieve updates from people in similar situatioins against the same Bank. So click on Subscribe. It will ask how often you want updates (Personally I like Daily).

Once Subscibed to the Forum it will redirect you back.

Hit the same button and choose "Start new thread"

Give your Thread a title eg: yourforumname v whatever bank

(choose how often you want updating by email if anyone posts responses in your thread)

 

Then your up and running !

 

Whilst your there, you might want to take some time to have a look at some of the threads by people taking action against your same Bank, very helpful. Remember, any threads you want to follow, you can either choose the thread tools button, and choose subscribe to thread, or simply whenever you make a post in a thread it will automatically subscribe you to that thread.

On the main page I've posted above, you'll also find lots of highlighted "stickies", which have lots of very informative stuff in them too.

Once your ready to start , you’ll need to do a schedule of charges to submit to the bank, try this one:

http://www.zen122856.zen.co.uk/CompoundSheet_v1.9.xls

 

Best regards and good luck

 

photoman

[tezl]

Try this;

 

Remember it must be headed as indicated to make sure they are aware it is a Subject access request under the Data Protection act:

 

 

 

 

 

 

Data Protection Act 1998

Subject Access Request

Your name

Your Address

 

Date: xx/xx/xxxx

 

 

ACCOUNT NUMBERS:

xxxxxx

xxxxxx

xxxxxx

xxxxxx

 

Dear Sir/ Madam

Please supply me with all records relating to my banking history with yourselves regards the above accounts.

Most importantly, I would like copies of all the original contracts relating to the above accounts.

If they do not exist or cannot be provided, I would like confirmation of this, and an explanation as to why sent to me in writing.

Whilst not exhaustive and for the avoidance of doubt I also require all documents, statements, correspondence, memos and notes from the commencement of the above specified accounts up to the present.

In light of all the recent publicity regards the reclaiming of bank charges, most Banks appear to now only be providing a breakdown of charges in response to all and any Data requests.

It seems a lot of banks are also wrongly interpreting the Data Protection Act (Data Protection Act) 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.

 

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.

You have 40 days to comply 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, and any delay in retrieval of any of the items listed is not just cause to delay anything more readily available.

I enclose 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

when you say try this, has this worked. thanks.

[photoman]

Tezl

see my above post. no 48