Claiming beyond 6 yrs - important new information!!!

[anney63]

Hello,

I am at present claiming from Halifax for a friend. I started with the SAR on 26th March. Eventually filing N! 26th June. due to them taking over 60 days to send statements. On my claim I claimed 6 charges pre 26th June 2001 which totalled over £1000. They sent me an offer letter for charges up to 30th June 2001, I phoned and send I would settle for charges going back to March 2001. Even so they paid money into y friends account even though I requested they didn't as they have a habit of doing this. I sent a rejection letter and asked that they take the money back. The next thing I get a letter from their solicitor saying they had already paid £**** and the rest was statute barred . The date of the defence the money hadn't been paid it was paid in the following day and didn't show up until the day after. Luckily enough I made sure my friend had taken a print of the account . What chance have I goe now these are really nasty tactics by Halifax.

[Celicaman]

Hi, you can use the limitations act s32 part 1 (B) & © to argue your case for pre 6 years, carry on with your claim, they will have to pay up.

 

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. ....

(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).

 

 

Try the link below for more info

 

 

http://www.consumeractiongroup.co.uk/forum/general/3598-do-you-have-charges.html

 

Halifax seem to think that by paying into your account, that its a closed matter, use a rejection letter from the templates library (see blue link in my signature below) to say that you accept as part payment only and you will continue to court for the rest. You will need to add into the template, why & how you invoke the limitations act, not as easy as cut & paste, you need to understand how it applies to your claim, so read up & learn.

Use the search box 'limitations' act to find other threads relating to that & you may even find a template 'paragraph' to add to your rejection letter.

 

As a point © is the stronger argument, as it was a mistake on your part that you believed that they ( the bank) had the right to levy the charges, so you allowed it to continue, and that it was not brought to your attention until either april 2006 or march 2007, depending on whether you use the OFT report or i think it was the BBC whistleblower program.

Research both & understand all putting in your claim.

 

Good luck

 

Celicaman

[Celicaman]

Also, i bet their offer was marked 'without predjudice' which means they cant show the offer to the court.

 

CM

[brown1950]

For people claiming beyond 6 years you might want to see my Nat West thread and the defence from Cobbetts !

[anney63]

Actually the offer had nothing about full and final settlement or without predjudice. So will be able to use in court. I am reading and reading and hoping that as I was willing to meet halfway the judge will look favourably at the case.

[anney63]

I didn't put anything about the statute of limitations in my rejection letter as I had sent it before knowing the money had been paid in . I was hoping this could all be put on my AQ when it arrives. I have since phoned and asked for money to be taken out still there

[groovycaz]

Hi all

had a letter today from PW Kerns Solicitors for the Co-op, they want copies of my bank statements from 1696 showing charges..GC

[groovycaz]

Upps 1996, id be a very very old woman by now if I was alive in 1696 ha ha..Gc

[MacBoy]

Update on my +6-yr claim

Fed up with Halifax's obfuscation, confusion tactics and wilful refusal to accept its responsibilities under the Data Protection Act 1998, I have today filed a Pre-Action Disclosure at my local County Court. Using form N244, these proceedings provide me with an opportunity to bring HFX to a hearing in order to explain why they have not complied with their obligations.

 

The basic premise for those unfamiliar, is that I am allowed to bring this action because I am unable to start my 'main' litigation until the Defendant provides me with the disclosure of facts to enable me to do so. It allows me to claim incidental costs, my costs as a litigant-in-person and potentially, damages at the discretion of the court.

 

I do not believe that the current Test Case will prevent this hearing from going ahead. I further believe that the Halifax is entirely responsible for this case not being settled up to almost three months ago (yes they are that far OVER the 40 days now). If this goes in my favour I shall then proceed as far as I can until I hit a stay.

 

I'll keep you all posted on progress.

[maybelline]

Hi, you can use the limitations act s32 part 1 (B) & © to argue your case for pre 6 years, carry on with your claim, they will have to pay up.

 

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. ....

(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).

 

 

Try the link below for more info

 

 

http://www.consumeractiongroup.co.uk/forum/general/3598-do-you-have-charges.html

 

Halifax seem to think that by paying into your account, that its a closed matter, use a rejection letter from the templates library (see blue link in my signature below) to say that you accept as part payment only and you will continue to court for the rest. You will need to add into the template, why & how you invoke the limitations act, not as easy as cut & paste, you need to understand how it applies to your claim, so read up & learn.

Use the search box 'limitations' act to find other threads relating to that & you may even find a template 'paragraph' to add to your rejection letter.

 

As a point © is the stronger argument, as it was a mistake on your part that you believed that they ( the bank) had the right to levy the charges, so you allowed it to continue, and that it was not brought to your attention until either april 2006 or march 2007, depending on whether you use the OFT report or i think it was the BBC whistleblower program.

Research both & understand all putting in your claim.

 

Good luck

 

Celicaman

 

I didnt mention S32 when I filed my claim or in my AQ just the template POC but they are going to use it apparently, but it is not mentioned in their defence either, can they do this?

[Jeff2000]

Hi all

had a letter today from PW Kerns Solicitors for the Co-op, they want copies of my bank statements from 1696 showing charges..GC

 

 

Hi,

 

 

Surely they can get them from the same place you did!!!

 

 

Jeff

[Celicaman]

I didnt mention S32 when I filed my claim or in my AQ just the template POC but they are going to use it apparently, but it is not mentioned in their defence either, can they do this?

 

As far as i understand, The banks also use the s32 limitations act to say that claims older than 6 years are outside the limitations act, your argument against this is s32 the act of concealment and that you were mistaken in allowing them to charge you the penalties. If they have stated somewhere that your claim is time barred you say it is not for those reasons.

 

CM

[maybelline]

Hi,

 

 

Surely they can get them from the same place you did!!!

 

 

Jeff

 

wow! thats a long way back.

[maybelline]

As far as i understand, The banks also use the s32 limitations act to say that claims older than 6 years are outside the limitations act, your argument against this is s32 the act of concealment and that you were mistaken in allowing them to charge you the penalties. If they have stated somewhere that your claim is time barred you say it is not for those reasons.

 

CM

 

thanks Celicaman, this is what I will say:)

 

(what is the OFT recommending folk settle for re claims already in the system in the light of the recent developments, does anyone know?) assuming they wanted to??

[lizzydripping1]

It seems that now I have written to the FOS, and they are investigating the complaint I paid the amount which they paid - less than half of what I calculated, directly into my account, even though I refused it, into another account after giving them seven days to take it back out my halifax bank account because I would only accept it as a part payment not as full and final payment as they stated.

 

I had a letter from the FOS confirming they had received my complaint from and that it would be investigated shortly, but they are flooded with complaints at the moment, so it might take slightly longer.

 

The Halifax have been told by me that the FOS has been informed and I will keep them updated (they know about the small sum that was paid into my Halifax bank account even though I refused).

 

They seem to be loathe to enter into any correspondence while the FOS is involved in investigating this, so maybe I should just leave this to them.

[groovycaz]

wow! thats a long way back.

 

Hi Maybelline and Jeff

 

Im one of those hoarders that keps all her banking statements, the cooperative business bank have made me an offer with compounded interest back to jan 2000 but im claiming from Nov 1996 and got my statements to proove the charges, after all the banks continue to claim that they only hold account information for 6 years..GC

[maybelline]

1696? I was making a joke but yes I too am a hoarder, have all my old statements, receipts, letters, at last the obsessive side wins - but seriously, good luck, many of us have gone for 6+, my bank settled so never had to argue it in court but had to issue the warrant of execution in the end, what a sham they dragged it out for so long, hope yours just get on with it and make a sensible offer quickly:)

[Mendipman1]

lizzydripping1

 

Interesting, the approach of banks on referral to FOS; initially NW dismissive. Notwithstanding an adjudicator partially upholding the writer on 'limitation' against the stricture of NW, it was asserted FOS lacked locus standi in the corporate part of my complaint, acknowledged hitherto by NW as inextricably linked! I requested a formal investigation by the Ombudsman, awaiting a 2 month delay.

 

I had at the instigation of the adjudicator made a referral direct o the FSA.

 

Would have thought my complaint out-side the moratorium, consequent on OFT referral to High Court.

 

Big battalions instructed by banks; trust CAG et al similarly?

 

"

 

The Office of Fair Trading's High Court bid got underway today (27 July) with all the City's leading litigators participating.

The test case revolves around the claims from tens of thousand of consumers that bank overdraft charges are unfair. The OFT filed High Court proceedings after the Financial Ombudsman Service and the county courts were told that in some cases banks charge as much as £39 for exceeding overdraft limits.

Eight banks, which provide 90 per cent of the UK’s current accounts, agreed to take part in the case and are expected to refute the OFT's claim that the unfairness rules of the Unfair Terms in Consumer Contract Regulations apply.

The banks up in court are Abbey National, Barclays, Clydesdale, HBOS, HSBC Bank, Lloyds TSB, Royal Bank of Scotland and Nationwide Building Society.

Ashurst is acting for Abbey National; Simmons & Simmons is on for Barclays; Linklaters was instructed by Royal Bank of Scotland; Clifford Chance is representing Clydesdale; Freshfields Bruckhaus Deringer is acting for HSBC; and Lovells is on for Lloyds TSB.

It is understood that Brick Court Chambers, Fountain Court Chambers and 3 Verulam Buildings are representing the majority of the banks.

The test case follows the OFT's ongoing market study into personal current accounts, which began in March and which aims to address price transparency in the provision of personal current accounts".

[groovycaz]

1696? I was making a joke but yes I too am a hoarder, have all my old statements, receipts, letters, at last the obsessive side wins - but seriously, good luck, many of us have gone for 6+, my bank settled so never had to argue it in court but had to issue the warrant of execution in the end, what a sham they dragged it out for so long, hope yours just get on with it and make a sensible offer quickly:)

 

Well done Maybelline,

The Cooperative Bank seem to be paying out of court , however I doont hold my breath as mine is a now closed business account, im well prepared..GC

[PeterAnderson]

Hey Guys

 

You may wish to see this - this was saved on Word and has some links as to the poster - sorry lost the original poster, but certainly worth a look:-

 

a). In so far as any charges relating to the period before xx/xx/xxxx, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.

 

b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public.

 

 

Just added this from celicman post

 

In your defence, you could argue that you only became aware of the unlawful act during the whistleblower programme on BBC on 21 March 2007 and the OFT report of 5 April 2006.

 

The fact that the banks have continued to conceal the actual damage caused by claimant's breach of contract means that they cannot rely on the Limitation Act 1980. Therefore their reliance on the Limitation Act 1980 is null and void.

(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).

 

The fact that the banks have continued to conceal the actual damage caused by claimant's breach of contract means that they cannot rely on the Limitation Act 1980. Therefore their reliance on the Limitation Act 1980 is null and void. (Quote taken from bankfodder post)

 

 

Also just found this on mj69 post

 

" XXX I would ask your Honour to decide that Lloyds are disguising their penalties and that this must amount to a concealment as they are aware that they were “cloaking a penalty”. On this basis, Lloyds TSB Bank should they lose the protection of the Limitation Act 1980 (Section F Page 96).

Section 32 (1) (b) the Limitation Act 1980 states

 

32 Postponement of limitation period in case of fraud, concealment or

mistake

(1) Subject to subsections (3) and (4A) below, 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;

 

33.In Cave v Robinson Jarvis & Rolf (2002) (Section F Page 17), Lord Millet states that

 

“The statutes of limitation have been described as "statutes of peace". They are regarded as beneficial enactments and are construed liberally.”

Referring toSection 32 (1) (b) the Limitation Act 1980 he also states

“In such a case the period of limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The rationale for this provision is plain: if the defendant is not sued earlier, he has only himself to blame”.

 

34. I have supplied some other relevant case law in relation to this Act namely Williams v Fanshaw Porter & Hazelhurst (2004) (Section F Page 1) and Sheldon & Others. Appellants and R.H.M.Outhwaite (1996) (Section F Page 34) and ask that my claim for repayment of charges dating back to 1996 is allowed"

[lizzydripping1]

Maybe things are starting to move now, I had a letter from the Halifax this morning which said "Since we last wrote to you, the bank and several other banks became involved in legal proceedings with the OFT about bank charges which we believe will resolve the legal issues on the fairness and legality of your bank charges.

 

We have asked the FSA to suspend the normal timetable for dealing with bank charges complaints, and the FSA has agreed to this request subject to conditions that protect your rights.

 

 

But I still have to return the goodwill payment they made to me which was substantially less than half of what I calculated it should be and they gave me a deadline of 5th October(so I,m glad I never touched it) - they have have have said that one the legal proceedings between the OFT and the banks finish, they will resolve my complaint they Said they will apply (test case) principles- this may produce a larger or smaller figure when compared with the current offer (do you think this could just be a way of getting out of it).

[MacBoy]

Maybe things are starting to move now

 

Lizzy, this is just the new standard fob-off letter after the OFT/FSA arrangement. Not sure you need to refund anything to them though...others may have a view?

 

Best of luck - I filed an N244 against the Halifax last week to force them to court to explain their non-compliance with the Data Protection Act so that I can start my case. I'm waiting for a date of service and hopefully a hearing date.

[lizzydripping1]

Lizzy, this is just the new standard fob-off letter after the OFT/FSA arrangement. Not sure you need to refund anything to them though...others may have a view?

 

Best of luck - I filed an N244 against the Halifax last week to force them to court to explain their non-compliance with the Data Protection Act so that I can start my case. I'm waiting for a date of service and hopefully a hearing date. [/quote

 

Is this the third letter to refuse their offer or is it something else - I cannot find it or maybe just not with it.

[MacBoy]

Sorry Lizzy I didn't notice you had replied until this morning! I was just explaining that the letter you got was the standard fob-off letter now that the OFT test case arrangement is in place with the FSA allowing the banks to suspend dealing with comnplaints.

 

What I'm doing with the N244 is slightly 'outside' the normal process, because I can't get HFX to fulfil their obligations under the Data Protection Act by sending me sufficient data in order to even start my case!

 

Yes, I was thinking about one of the rejection letters. Please seek advice from a helper or mod concerning which one is most appropriate to you.

 

Good luck!

Mac

[Jeff2000]

 

 

But I still have to return the goodwill payment they made to me which was substantially less than half of what I calculated it should be and they gave me a deadline of 5th October(so I,m glad I never touched it) - they have have have said that one the legal proceedings between the OFT and the banks finish, they will resolve my complaint they Said they will apply (test case) principles- this may produce a larger or smaller figure when compared with the current offer (do you think this could just be a way of getting out of it).

 

 

 

Hello lizzy,

 

 

The money they sent you is a "goodwill payment", and nothing else.

 

If it was me, I wouldn't be returning it just yet!

 

 

Jeff.