limitation act - fraudulently claiming??

[carinas]

Query Re Limitation act

 

Have filed court claim and recieved defendants defence stating limitation act applies. I know i can state S32 - concealed cause of action, but this creditor have admitted to me & the court they cannot produce a copy of the agreement. Now i'm thinking - does this mean that they we're unfairly taking repayments from me when they did not have an enforcable agreement? this would therefore mean that they were fraudulently claiming from me? S32.1 A would apply? or have i totally misunderstood the meaning of fraudulently claiming?

 

thoughts anyone ?

[PhantomReclaimer]

Sec.32 provides for a postponement of the 6 year limitation period in the case of the debt having being accrued due to the fraud or concealment of the nature of it by defendant or because it was paid under a mistaken belief that the defendant was lawfully entitled to it.

 

In this case, the 6 year limitation period will start from the time when the claimant became aware of the fraud, concealment or mistake, or at such time as he could, or should, have reasonably discovered the fraud, concealment or mistake.

 

P.

[andrew1]

6yrs from now in which to make a claim or only 6yrs you can go back from now - there's a subtle but important difference....

[PhantomReclaimer]

The limitation Act provides that contractual debts are statute barred at a point six years after the cause of action arose - ie; when the debt was run up.

 

Sec.32 postpones the start of the limitation period until such time as the fraud, concealment or mistake was, should or could have been discovered with reasonable dilligence, so it's six years from that point at which the debt becomes statute barred.

 

Where precisely that point of discovery should be will be dependent on the facts of the individual case and what would have been reasonable in the circumstances. The concensus of opinion on here seems to be that, as general guidance, the date of publication of the OFT report into credit card charges of May last year would probably be a reasonble starting point.

 

P.

[andrew1]

Would you say bank penalties were a ' contractual debt' then?

[PhantomReclaimer]

Would you say bank penalties were a ' contractual debt' then?

 

Yes, because they were applied under the purported terms of your banking contract and the bank claims they either constitute charges for providing a service or to cover their costs incurred due to your breach of the contract.

 

P.

[andrew1]

I take your point, although I might perhaps suggest that the penalties cannot be deemed a 'service' even though they may imply in their T & C's that a charge may be made at £x for a breach of contract. Which is your second point of course.

 

The wonders of the fine - print perhaps?

 

Thanks.