Claiming beyond 6 yrs - important new information!!!

[Ronaldo2k]

Hi Steven,

 

No Halifax sent all that statements.

 

I have charges in 2000 which I am looking to claim but I have been told I require a specifically worded template.

 

is this correct??

[steven4064]

Just reclaim them, you can argue the toss on the six years later. I suggest you leave it until they bring it up - the relevant law is section 32 of the limitations act 1980:

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;

 

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.

You paid the charges mistakenly thinking they were lawful and the bank deliberately concealed the true nature of the charges.

[Ronaldo2k]

Many thanks Steven,

 

Just to claify:

 

I submit the N1, POC and Schedule as normal. Then if raised by the bank, then add the statement above?

 

Or, amend the N1 and POC to include the above statement?

 

Regards,

 

Ron

[steven4064]

The process is to send a prliminary letter giving them 14 days to refund the charges. If they do not comply, you send an LBA, again giving them 14 days. Only then do you submit the N1 (You probably know all this, but this is to clarify).

 

I would expect that, somewhere in this process they will come up with the six year issue. At that point (whenever it is) parry with the s32 stuff.

 

If you have already got as far as the N1, then I would put a paragraph in the POC pointing out that some of the charges you are reclaiming are over 6 years old and stick the s32 stuff in as a 'nevertheless'

[Ronaldo2k]

Many thanks Steven,

 

I was at the N1 stage so I will be putting this through this week.

 

many thanks,

Ron

[pugsley]

most of my charges for my Abbey account are in 2000 and 2001, has the been anything in the oft case that would change my position when trying to get these charges back?

[steven4064]

pugsley, I don't think so

[willtheywontthey]

my head hurts.... Got to page 26 and then lost the plot.

 

Sincere apologies for asking what probably has been asked and answered before but i didn't get it' to be honest.

 

1. Is there a letter to claim more than 6 years charges from banks? If it's the same as before (wherever that is now?!) won;t banks just refuse...?

 

2. Is there a link to work out interest as I think the moneysavingexpert one is not used by majority here???

 

3. If I've made a claim to bank and FOS has logged it do I 'add' to claim or make another?

 

4. If I've made a mistake with working out interest in past (after sar number 1) - and if I do another sar and claim can i just 'change' or 'add' changes??

[MacBoy]

All

 

Am finalising my PoC for the current account case. I understand that there is new advice for CAG-ers in light of the recent OFT test case developments.

 

The advice includes a section 4(b) of the suggested PoC states:

 

Insofar as they purport to be services provided by the Defendant, the High Court on the 24th April 2008 rejected the notion that the blocking of cheques, direct debits and so forth were services in the sense commonly understood. Furthermore the High Court held that the Defendant's charges were subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

 

It then goes on to detail the Regulation's requirement of good faith and provides an excellent list of reasons why there may be an uneven balance of power in this respect in banking contracts.

 

However, as far as I am aware, pre-6 year claims cannot rely on UTTCR 1999, but UCTA 1977 instead. I have looked at this Act and there does not seem to be a specific requirement of good faith in there.

 

Should I ignore the new advice on this basis and leave my PoC as it is?? if not, is there anything in the recent developments that would require significantly rewriting a pre-6 year claim?

 

Input greatly appreciated - thanks in advance

Mac

Edited July 19, 2008 by MacBoy

[MacBoy]

willtheywontthey

 

Unfortunately I seem to have lost the ability to receive updates to subscribed threads, so apologise that neither I nor any one else has offered assistance yet - your post is quite old. Anyway, in case you're still looking for help, here's my take on the points you raised:

 

1. Use the same template for pre-6-year claims. You argue the differences in case law later in the process. Remember though that if you are to proceed with such a claim it will require greater persistence and understanding of the case law involved than a 'normal' case - but don't let that put you off.

 

2. Interest - first of all read steven4064's excellent Interest Tutorial. Especially good for the maths-averse (like me)! Calculation spreadsheets can be found here.

 

3. Not sure what you mean buy this, but if you mean you wish to vary your claim in any way you need to use form N244 - Application Notice. I would imagine it would also be advisable to update FOS if you've lodged a complaint with them.

 

4. If you've already made the claim and discover the mistake then see 3. above. If you haven't, all you need to do is amend a SAR, then I suggest a quick call to the ICO for advice - further info and contact details here.

Hope this helps and is still timely.

 

Mac

[Turboman]

Is there any current advice re starting a claim for pre-6 yrs charges (current 6 years already refunded)

[steven4064]

There is no current advice. There is nothing stopping you starting a claim but be aware that it will be stayed as soonas you file in court. Once the stays are lifted you will then have to argue the pre-6 years part of the claim.

 

(on a related issue, just showing th eoddity of our legal system and partly in balance to my last comment, there was a case a coupleof weeks ago where someone was claiming over 6 years in court and the judge decide bizzarely to hear the limitations issue in isolation and before the charges issue. The bank promptly caved in and paid up. Their aversion to courts is quite strong )

[tinkerbell20]

There is no current advice. There is nothing stopping you starting a claim but be aware that it will be stayed as soonas you file in court. Once the stays are lifted you will then have to argue the pre-6 years part of the claim.

 

(on a related issue, just showing th eoddity of our legal system and partly in balance to my last comment, there was a case a coupleof weeks ago where someone was claiming over 6 years in court and the judge decide bizzarely to hear the limitations issue in isolation and before the charges issue. The bank promptly caved in and paid up. Their aversion to courts is quite strong )

 

 

If you make appllication to add a counterclaim regarding penalty charges (going back to 1998) will the court stay the whole claim or only the counterclaim itself? Would I be better amending the defence to include the penalty charges reclaim?

[steven4064]

Experience is that, if a company is taking you to court and you counterclaim for charges, the court will stay that part of the claim relating to charges and carry on with the rest (assuming there is a 'rest' of course). If you amend the defence, the same may apply, or they may stay the whole claim - it will depend on the judge IMO.

[racheldazo]

Advice needed on claiming ppi on loan from oct 2000.

Hi can anyone advise me what action to take, i took out a loan with M&S in oct 2000, for £10k, the ppi was £3400 roughly it was payable over 84 months and i finished it about 3 months earlier. I have since discovered that i had and still have alternate insurance in place, so wrote to them as i feel i was mis-sold the ppi.

Anyway letter came back to say that they wouldnt be refunding any of the premiums paid as the were not at the time of the loan in the FSA. I have written back as this letter they sent was not the final letter, i have asked them to look at it again. Shall i take court action if they still refuse me any refund? any suggestions would be great, thanks

[steven4064]

Give them 14 days from the date of your first letter and then send them another marked 'letter before action' and giv ethem 14 days to respond positively or you will take them to court. The fact that were not in the FSA is irrrelevant - if you were mis-sold it then you were mis-sold it. Full stop.

 

You will have to argue the limitations issue though. Under s5 of the Limitations Act 1980, your action would normally be time-barred after 6 years. However, you might be able to invoke s32 which says that in cases of fraud, concealment or mistake, the limitation period starts from the date on which the fraud, concealment or mistake was discovered or that it wold have been reasonabley possible to discover it.

[racheldazo]

Give them 14 days from the date of your first letter and then send them another marked 'letter before action' and giv ethem 14 days to respond positively or you will take them to court. The fact that were not in the FSA is irrrelevant - if you were mis-sold it then you were mis-sold it. Full stop.

 

You will have to argue the limitations issue though. Under s5 of the Limitations Act 1980, your action would normally be time-barred after 6 years. However, you might be able to invoke s32 which says that in cases of fraud, concealment or mistake, the limitation period starts from the date on which the fraud, concealment or mistake was discovered or that it wold have been reasonabley possible to discover it.

 

 

Thanks Steve for your valuable info. Where would i find out about s5 and s32 of the limitations act 1980? If i do push it to court i need to know what im on about "dont want to look a wally", but i dont want to let slip the £5.500 which really is mine.

thanks again

Rachel

[photoman]

Rachel

Hi, and welcome to the forums.

 

Agreed, that you don't want to look a wally in court !

 

Okay, the Statute of limitations is an act of parliament that was designed to stop people from bringing "stale" claims against people in court.

This is supposed to stop claimants in court cases from sitting on a claim (sometimes perhaps deliberately) and later clogging up the courts or waiting in an attempt to earn lots more interest, when they should have acted sooner.

So, it limits peoples ability to bring a case that relates to an event that is older than 6 years.

However, Section 32 is a section of the same Statute of Limitations act that basically provides a means to claim that you paid the ppi either due to the Bank concealing or by not explaining to you whether or not it was really necessary ... or that you paid it whilst acting under a mistake.

 

It is a controversial tactic, and If you want to use this, then you must know what you are doing, and must understand the principles, because you might actually find yourself having to argue your case in a court.

 

So, we could spoon feed you everything, the statutes, the links, the arguments, but this would not guarantee that you understand things.

 

So, it would be far better for you to read up and find things for yourself, read the arguments, and understand things.

As it happens, all the information you need is in this particular thread, or there are links to other info in this thread also.

 

So, I suggest that you go to the very first page of this thread and start from the top, then read until your eyes turn red !!

 

Best regards

 

PM

[steven4064]

Well said PM (although I think reading the whole thread is above and beyond ). Most legislation is online - Limitations Act here

[racheldazo]

Thank you PM and Steve for your advice, ill let you know what M&S say to my last letter.

thanks again both

[racheldazo]

Rachel

Hi, and welcome to the forums.

 

Agreed, that you don't want to look a wally in court !

 

Okay, the Statute of limitations is an act of parliament that was designed to stop people from bringing "stale" claims against people in court.

This is supposed to stop claimants in court cases from sitting on a claim (sometimes perhaps deliberately) and later clogging up the courts or waiting in an attempt to earn lots more interest, when they should have acted sooner.

So, it limits peoples ability to bring a case that relates to an event that is older than 6 years.

However, Section 32 is a section of the same Statute of Limitations act that basically provides a means to claim that you paid the ppi either due to the Bank concealing or by not explaining to you whether or not it was really necessary ... or that you paid it whilst acting under a mistake.

 

It is a controversial tactic, and If you want to use this, then you must know what you are doing, and must understand the principles, because you might actually find yourself having to argue your case in a court.

 

So, we could spoon feed you everything, the statutes, the links, the arguments, but this would not guarantee that you understand things.

 

So, it would be far better for you to read up and find things for yourself, read the arguments, and understand things.

As it happens, all the information you need is in this particular thread, or there are links to other info in this thread also.

 

So, I suggest that you go to the very first page of this thread and start from the top, then read until your eyes turn red !!

 

Best regards

 

PM

 

 

Thanks PM, i have emailed M&S with my reply to there letter, but would i be damn right cheeky if i asked you to draft a reply to their 1st letter. I know roughly what to put in there, but i think you know far more than myself and perhaps if a letter was composed well, they might (wishfull thinking) cave in maybe??

Basicially the contents of the letter is:-

 

I understand from reading you letter that you have concerns the ppi was mis-sold on your above loan which was taken out in oct 2000. May i advise that at the time of the application M&S Financial Services was not regulated by the FSA, in addition we had not registered with the GISC.

 

Therefore when the policy was sold M&S acted in its capacity of an unauthorised intermediary and as such the sale does not fall within your voluntary jurisdicition. Due to the reason above will not be refunding any insurance premiums you have paid and i apologise for any dissapointment this may cause you.

 

I hope you are happy with my response and should you wish to persue this matter further please contact the Customer Relations Team on the address below.

 

If we do not hear from you within the next eight weeks, we will consider matters resolved. blaa blaa blaa.

Any suggestions as what to add in a response.

 

Hope i have not offended you by being bloody cheeky?

 

thanks again

Rachel

[photoman]

Rachel,

 

No offense taken, were all here to try and be helpful to each other if we can.

 

Firstly, as Steven said earlier on, the fact that they were not in the FSA is irrelevant..... The fact is you were mis-sold the ppi under false pretences and/or not presented or given any indication that it was an option wether to take out or not.

So this is a matter of law and fact, rather than a matter of their membership/ voluntary regulation with the FSA etc.

 

I would actually suggest that you do not enter into any specific correspondence in reply to to their last letter.

Do not respond to their points or argue your case at this point, in case you change your tactics or arguments etc.

This way you will not have given them any ammo to bring up at a later date.

 

Instead, I would suggest that you simply send them a "letter before action", which you can get from the templates library and modify for your needs.

 

Then if this does not produce a satisfactory result (which is unlikely) then start your court proceedings.

This way, when it comes to court stage you can be seen to have gone through the proper process.

 

To be really honest, I have little knowledge or experience or ppi claims, and my previous advice was more geared towards the limitations aspect of the claim, which I do have some experience of.

 

So regards the actual ppi part, you could really do with searching around the forums, asking about and seeking help from those with ppi experience.

 

Steven may be able to give you some pointers in that direction by pointing you to the relevant forums and those with experience.

 

Good luck and best regards

 

PM

[racheldazo]

Rachel,

 

No offense taken, were all here to try and be helpful to each other if we can.

 

Firstly, as Steven said earlier on, the fact that they were not in the FSA is irrelevant..... The fact is you were mis-sold the ppi under false pretences and/or not presented or given any indication that it was an option wether to take out or not.

So this is a matter of law and fact, rather than a matter of their membership/ voluntary regulation with the FSA etc.

 

I would actually suggest that you do not enter into any specific correspondence in reply to to their last letter.

Do not respond to their points or argue your case at this point, in case you change your tactics or arguments etc.

This way you will not have given them any ammo to bring up at a later date.

 

Instead, I would suggest that you simply send them a "letter before action", which you can get from the templates library and modify for your needs.

 

Then if this does not produce a satisfactory result (which is unlikely) then start your court proceedings.

This way, when it comes to court stage you can be seen to have gone through the proper process.

 

To be really honest, I have little knowledge or experience or ppi claims, and my previous advice was more geared towards the limitations aspect of the claim, which I do have some experience of.

 

So regards the actual ppi part, you could really do with searching around the forums, asking about and seeking help from those with ppi experience.

 

Steven may be able to give you some pointers in that direction by pointing you to the relevant forums and those with experience.

 

Good luck and best regards

 

PM

 

Thanks very much for your help i will wait and see what they reply with, and then go from there.

thanks again

Rachel

[determindator]

Nat West tried the over six year strategy with me. My approach was to show the Court I had been in correspondence since back in 2002 to refund charges on the account. This meant Nat West had taken six years to address my situation. I was saying 2002 was the date to be used for when the claim started, and not as they would prefer 2007 when I discovered how to calculate and claim back bank charges as a counter claim to their debt letters. This was accepted by the Bank, needless to say they didn't tell me in advance, found out whilst waiting to go into Court. Regardless of their decision, I believe a Judge would have seen my reasoning.

 

Very grateful for all your hard work to help us all.

 

D