Claiming beyond 6 yrs - important new information!!!

[noomill060]

Has ANYONE succesfully gone to court, invoked s.32 of the Limitations Act to claim charges pre-6 years and ACTUALLY won?

 

If not, this thread needs to be removed (or at least retitled), as its giving bad information in its first pages and raising false hopes which will end in frustration and extra cost.

[MacBoy]

To any legal eagles mods etc. reading: I have a hearing 23/10 for an N244 I filed for a Pre Action Disclosure, so that I can get the information I need to start my case.

 

This may serve as a valuable test to see if Data Protection Act-dodgers can be brought to book in court, for missing information both pre-6 years and afterwards. PM me if you want to know more.

[kennythecelt]

This article was posted by Bankfodder in media thread.

 

http://www.consumeractiongroup.co.uk/forum/bank-charges-media/110626-will-fos-help-out.html

 

Not sure if it has been considered here.

[dad]

Has ANYONE succesfully gone to court, invoked s.32 of the Limitations Act to claim charges pre-6 years and ACTUALLY won?

 

If not, this thread needs to be removed (or at least retitled), as its giving bad information in its first pages and raising false hopes which will end in frustration and extra cost.

 

Not quite but I believe as good as. In my action against HBoS their original defence included limitation. In response to my counter argument they dropped their limitation defence and paid up all the charges and all the interest they had levied which went back to 1997.

 

The reponse was as follows:

 

1 The relationship between the Claimant and Defendant is that of Customer and Banker. This was held by the House of Lords in Foley v Hill (1848) 2HL Cas 28 to be a relationship of contract. The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking

Limitation

 

2 The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act. This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

3 In the present proceedings the Claimant submitted a demand for payment on 31st July 2006. The Claimant sent a letter to the Defendant asking for a refund of the Charges and Debtor Interest then outstanding on the Account. It follows on from the settled law that the Limitation Act will bite on the Claimant on 31st July 2010.

4 On this basis the Defendant’s application to strike out the Claim by way of the Limitation Act must fail.

Alternative Rebuttal of the Defendant’s Application

 

5 In the alternate even as argued by the Defendant his application must fail.

6 [snip irrelevant bit]

7 [snip irrelevant bit]

8 [snip irrelevaqnt bit]

9 The Defendant seeks to apply limitation to recovery under the provisions of various pieces of consumer protection legislation. While the Claimant may allege breach of a statutory provision is not for the Claimant to decide that the breach has occurred. That falls to the appropriate statutory authority. In the present case that is the Director General of Fair Trading. Therefore the cause of action accrues on the date of his finding that charges above £12.00 are always unlawful and will trigger enforcement action. The appropriate date is the publication of his report Calculating fair default charges in credit card contracts on 5 April 2006. In that case time runs until 5 April 2012.

10 Turning to Section 32 of the Limitation Act 1980, the House of Lords has decided (See Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants) [2002] UKHL 18 attached at MLH-A pp 4-19 particularly p17):

A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to provide. The standard of proof would be the usual balance of probabilities standard and inferences could of course be drawn from suitable primary facts but, nonetheless, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult. Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty - I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach - then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes.

11 The Defendant contends that the bank did not conceal anything from the Claimant. It is incidental to the Claimant’s claim that he knew when the charges were made or the reason given for the charge. The Claimant’s action stands or fails on the fairness of each charge. If each charge reflects the Defendant’s recovery of the limited administrative costs incurred by him or a genuine pre-estimate of those costs then the Claimant’s claim will fail. If they have the object of raising more in revenue than is reasonably expected to be necessary to recover those limited administrative costs then they are an unfair and unlawful penalty. The Claimant contends that the Defendant has knowingly concealed the costs associated with the charges in breach of his duty as a fiduciary to the Claimant. The cost to the Defendant of processing any charge is directly relevant to the Claimant’s claim.

12 The Claimant has not previously alleged fraud, because he has had no need to. The Claimant alleges that the Defendant knew at the time that the charges were unlawful penalties and knew that a customer has no method discover the true cost underlying the charges and as such was and is fraudulently applying them. 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 such that it would be 'against conscience' for him to avail himself of the lapse of time. The authorities show that, if a man knowingly commits a wrong; or a breach of contract, 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 Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants) [2002] UKHL 18 - bundle pp4-19 particularly p8). The Claimant cites as evidence the testimony of the Defendant’s former chief executive Mr James Crosby before the Treasury Select Committee on 19 October 2004, particularly Q135 (See Bundle pp20-23 particularly p23):

Q135 Mr Mudie: … one area you have refused to even tell us any details on is the penalty charges and fees. Now, you consistently refused to tell us how much you make, how much you bring in, how much profit. PricewaterhouseCoopers said you are growingly reliant on the income from these fees. Would you care to comment, any of you?

Mr Crosby: To kick off, we do not disclose the nature of those fees publicly to our shareholders so we cannot be more specific, ….

13 In addition the Claimant contends that suitable primary facts that the Court should draw inference from are the Office of Fair Trading’s presumption that charges above £12.00 are unfair and the refusal of the Defendant to disclose its costs when requested by the Claimant in his original letter of 31 July 2006 (See Bundle Document 17):

I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

14 The Defendant alleges that with reasonable diligence the Claimant could have discovered that he was being charged unlawful penalties. As shown at paragraph 12 above the Court of Parliament, by way of the Treasury Select Committee with all its powers and sanctions, was unable to arrive at the true costs underlying the Defendant's charging regimes. Equally the Office of Fair Trading, which has statutory powers and full time investigators, stated in a press statement issued on 7 September 2006 that it will take between three to six months to analyse banks penalty charging regimes. Therefore it is totally unrealistic to assert that a private individual such as the Claimant could discover the true nature of the charges levied against him without an inordinate and unreasonable level of diligence.

15 The Defendant advances the submission that the Claimant was aware of the charges and their nature by way of the entries on periodic bank statements, examples of which are included in his bundle (See AWH 26a-36). In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, [1985] 2 All ER 947 PC the Privy Council held that there is no duty on a bank’s customer to check his statements cited at paragraph 11.5 of Paget's Law of Banking. The Defendant cannot therefore rely on a statement entry to start time running for the purposes of the Limitation Act.

16 Therefore even as argued by the Defendant the Claimant can maintain this action within the time limits imposed by the Limitation Act 1980. There are therefore no grounds on which the court should strike out the Claimant’s particulars of claim by reason of limitation.

Fresh Accrual

 

17 Furthermore The Defendant wrote to the Claimant on 18 October 2006 offering to settle the amount claimed in Charges £2,756.00 and £800.44 in respect of interest together with £250.00 in respect of the Court fee (See TB Document 24). The Defendant unilaterally deposited these sums into the Account. The Claimant accepted these sums as partial payment of the monetary aspects of his claim. Consequently on the basis of the term “…or makes any payment…” the Claimant has accrued fresh rights under section 29(5)(a) of the Limitation Act 1980 (See below) running from 18 October 2006.

29…

(5) Subject to subsection (6) below, where any right of action has accrued to recover--

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

[MacBoy]

Wasn't even aware of that Kenny... good find

[kennythecelt]

Not quite but I believe as good as. In my action against HBoS their original defence included limitation. In response to my counter argument they dropped their limitation defence and paid up all the charges and all the interest they had levied which went back to 1997.

 

The reponse was as follows:

 

Dad

thanks for posting that!!

[patrickq1]

hi kenny is it pronounced kelt or tim ?

[noomill060]

Wow! Thanks for posting Dad! A bit of good news.

[kennythecelt]

Hi Patrick

 

You can call me whatever you want, and many do, but Kenny is fine and I'm a happy man tonight thanks Patrick.

 

Both are true if that helps!

 

However, I will do my utmost to help everyone get their charges back as this is what the forums for and that is its strength!!

[kennythecelt]

Dad,

that response you posted could be very useful. I have read it again and will refer caggers to it.

Thanks again.

[patrickq1]

good result over there lol

[kennythecelt]

It certainly was Patrick, fingers crossed!

[groovycaz]

Just re-read "dads" excellent post regarding limitations, Ive today recieved the Coops AQ, they are asking for a pre lim hearing as my claim is pre 6 years so statute barred (its a business claim), my court is still hearing penalty claims..Gc

[noomill060]

After a complaint to the ICO and starting small claim, I recieved all my Northern Bank statements 1987-93 last week.

 

Their covering letter still bleats that they intend to use the Limitation Act in any action I may take against them.

 

We shall see.

 

My small claim will continue, for damages, as they failed to comply within the 40 days. Trial date 25 October.

 

Then I go for charges plus 19 or so years compound interest.

[groovycaz]

After a complaint to the Information Commissioners Office and starting small claim, I recieved all my Northern Bank statements 1987-93 last week.

 

1987-93 excellent, you are very very lucky to get these statements that far back, they always state that they dont hold customer account information longer than 6 years, best of luck with your claim..Gc

[MacBoy]

All

 

Have been away for a couple of weeks so, but have some important news and encouragement for those seeking to claim beyond six years - full updates here in my thread here, but have summarised the main points and datelines below:

 

Departed for holiday 25/08/07. mysteriously received most of my bank statements going back to 1987 yesterday.

Wednesday 29th August 2007

 

In my absence, receive a letter from the Information Commissioners Office informing me that my case has been passed onto their Regulatory Action Division for 'further consideration'

 

I had been wondering by this time whether the sudden and mysterious arrival of all my statements had been due to my Information Commissioners Office complaint, or my issuing court proceedings via an Application Notice (form N244) for a Pre Action Disclosure Hearing.

 

This seems to suggest that it is a combination of both, perhaps drizzled with a little cockiness, given to the test case and OFT/FSA arrrangement, that they might not now have to cough up at all, so they may as well send the data? who knows?

 

Wednesday 5th September 2007

 

Receive letter from Information Commissioners Office - case has now been passed to a Remedies Officer. Odd point made in this letter:

 

"You should be aware that Halifax may not have retained information that is over six years old as they are probably not obliged to do so" (my emphasis).

 

I know they are the regulators but surely it isn't their job to speculate on the law?

 

Monday 10th September 2007

 

Receive a package from Halifax containing virtually all my credit card statements, barring approximately 3 months from account opening (August 1992).

 

Tuesday 11th September 2007

 

Receive a telephone call from the Halifax. Very pleasant and informative gentleman asking if I had received everything. I told him that I was still in the process of checking. He gave me a direct telephone number and told me I could call him anytime with any questions; and to report to him immediately should I be missing any information.

 

Gobsmacked, frankly. :o

[MacBoy]

Now I am coming to terms with the fact that I have, through sheer persistence, cheek and bloody-mindedness (not to mention the support of everyone following my story on here), succeeded in getting past Ms. SixYears Thatisall, I'm wondering what I need to do with my Pre-Action Disclosure hearing, which is still scheduled for 23rd October

• Do I cancel it?
  
• Can I cancel it
  
• Is there any way that I can still proceed with it in order to recover my costs?

Informed advice welcomed. Thanks once again to everyone for your help and support so far - and a particularly large thank-you to kennythecelt for keeping my chin up through all this so far!

 

NEXT JOB - add all this stuff up and stick in a claim!

 

Mac

[lizzydripping1]

It was worth all that persistence then, and helping others, good luck!

[MacBoy]

Thanks Lizzy. Yes, it certainly proves that persistence pays and I hope it serves as encouragement to others to keep going!

 

Mac

[photoman]

Okay, following on from Lloyds new:

"superduper, this is a lot fairer...honest (well actually it's the same screw job , we've just muddled the wording about to make it "seem" fairer, and although we'll still make the same profits, we'll hopefully put people off trying to claim) new charges !

 

Looks like Abbey are at it now too:

 

Got a new T&C's and price list through from them the other day.

[Actually, personaly I have no problems with Abbey, as they were my parachute account provider, and thanks to the nice big wadge (courtesy of Lloyds actually), it's currently in a very nice healthy credit balance]

 

Anyway, Abbeys new T&C's (Basic account):

 

6.2 Unpaid Items

 

If you try to make a payment from your account, without enough money in it to cover that amount:

 

a/we will not let you have that money or make that payment; and

 

b/ you will be charged a fee for doing so. Please see our price list for details.

 

7 Fees and interest

 

7.1: We wil give you copy of our current price list, which will tell you which fes are payable on your acount and how much they are. It will also tell you our interest rates. We will give you at least 14 days notice of interest and fees which you owe us for these standard account services before we take them from your account.

7.2: We are entitled to charge for additional services provided to you. Where these additional fees are not detailed in our price list, we will tell you about them before we provide the relevant service to you.

 

Then the enclosed brochure with the charging structure:

 

"Standard account service fees"

 

Unpaid item:

£0-£9.99

=£5

£10-£19.99

=15

£20-£29.99

=£25

+£30

=£35

 

 

Anyone claiming against Abbey?

 

Abbeys standard defence till now I gather, has been that the charges are a genuine pre-estimate of their "costs"

 

If this were actually truly the case, then their new current T&C's would still have to continue to reflect this, still portraying the charges as "costs" and either:

 

a/ Still try to charge similar rates, by sticking to their guns and maintaining that these do still reflect their true "costs" until it is proven otherwise (by OFT for example)

b/ Or charge the true cost (estimated by some to be around £2.50)

 

Instead, by being greedy, they are trying to maintain the lovely income these charges generate by instead now calling them "fees".

 

It will be interesting to see what they now try to do with regards their defences regards current claims especially those beyond 6 years. Will they now try to claim that up till now the charges were indeed to cover "costs"; but instead they have abandoned their simple recuperation of costs, and replaced this with a fee structure that constitutes a "service" element and also a "cost" element?

 

If so then........ what justification can there be for charging 150% more in "fees" to deal with returning an item for £10 as opposed to returning one for £9.99 and so on ?

 

Do the incorporated "costs" elements rise so dramatically at such specific 1p threshholds ?

 

Or wil they try to claim that the "service" involved increases, perhaps by necesitation for referral to a more senior staff member?

 

If the former, then there could be no possible justification for such an increase in costs; if the latter, then does this mean they are henceforth pretty much abandoning the recuperation of "costs" justification.

 

If they are abandoning their "costs" justification, then has there been some incredible automation restructuring at Abbey in the last few months, that has enabled them to save monumental amounts of "costs" in dealing with these events?

Otherwise, one must presume that the "costs" now are the same as they were a few months ago, when the charges were being portrayed as purely pertaining to recuperation of "costs".

 

The truth is, as we all know, is that the charges carry a profit element, and by candidly now admitting (by now portraying them as fees) that they do so, is evidence that they always have done.

 

In conclusion, the fact that the same incident which a couple of months ago would have incurred charges that were portrayed as "costs" is now instead incurring similar charges instead now being portrayed as "fees" is strong evidence in my opinion of concealment.

 

...... so Abbey claimants, I would advise you to go into your branch and get the new T&C's as further evidence of concealment, and now invoke section 32 of the Statute of Limitations act, and go for EVERY single charge ever incurred.

 

Don't just stick to 6 years.

 

 

 

PM

[Gazza01]

Hi

 

I will be using the contents of a thread using the CCA1974 act to request my T&C's, I will then ask them to justify & detail how said "fees" are calculated as my reading of this is that a change in wording from "Charges" to "fees" is a change from the original agreement, and as this change is a change of the contract I am well within my rights to either reject said change or ask them to detailed explanation of how said fees are constructed. [MODERATOR COMMENT WOULD BE USEFUL]

 

Things look like they are finally coming together on how to use the law to force them to reveal things they would prefer to keep in the dark - I'll also see about using this same argument when I take Twaddle-dumb [Nationwide] to court to force supply of T&C's and statments they have failed to supply bewond 6 years [i am looking forward to sending them a statement of truth on this matter once its at the courts and asking for signing no matter what happens... unfortunatly this will have to wait till I start my new job - touch wood in a couple of week - But I can wait]

 

Thank you, is all very useful stuff.

 

Gazza01

[groovycaz]

Has ANYONE succesfully gone to court, invoked s.32 of the Limitations Act to claim charges pre-6 years and ACTUALLY won?

 

Does anyone know the answer to noomill060s question, my claim with the Cooperative Business Bank is from 1996 and although the court (not the bank) have stayed my claim, which im appealing, the last I heard from the Bank was that they were requesting a pre lim hearing to argue the limitation issue as they say my claim is statute barred, im quite up on the limitation act now but cant find if anyone has yet been to court to argue the points, it seems that with all other claimants with limitation isues the banks have paid out without going to court..Gc

[PI Guy]

i have had a letter back from the coop too and it states;

 

"Thank you for your letter sated 19 july 2007. I am sorry that you have had cause to write in and for the delay in my response.

 

I have now had the opportunity to look into your complaint and am sorry to advice that unfortunately due to the statute of limitations, we are only required to keep records up to six years. Therefore any charge refunds that are being looked at would only of been applicable back to 2001. Any charges applied prior to this time are not under review and will not be considered for any refund."

 

So what should my next response be?

[MacBoy]

PI Guy

 

Write to the Information Commissioners Office and complain. Here's the text of the letter I issued to the Halifax after several attempts to obtain discovery of my data. I gave them 14 days to respond.

 

Alternatively, you could put in your complaint straight away, based on your response from the Co-op. In my letter, you will see I also threatened Court action, which I eventually took in addition to the complaint. Adapt your approach to your own case and circumstances.

 

My advice would be not to dwell on any legal arguments given by the Co-op in relation to the Limitations Act (these are arguments for Court IMO), but to emphasise their obligation under the DPA 1998 to supply a copy of all the data it holds about you. Make sure you mention (as in my letter) that you intend to seek proof that they no longer hold your data, in the form of destruction certificates, etc.

 

Here is the ICO's leaflet on when and how to complain. and here is the page containing the complaints form itself. It worked for me and has for others - I got information from the Halifax going back to 1987, although not without a fight.

 

Good luck

Mac

[PI Guy]

I don't need their statements as I have them. I sent them my standard letter asking them to repay etc and that was their response.