Find out here if your local court is staying claims

[car2403]

The rest of this thread suggests that's the case, which is probably why you aren't getting any responses to your query.

Not long to wait now - Judgment is expected in May/June - so hang on tight and count the 8% interest as it accrues.

(Some of us have been waiting almost a year, BTW!)

[bigalis]

Does anyone know what will happen when decision is made. We all hope that it will be in our favour, and if it is will our cases automatically have there stay lifted or will we have to apply individually.

[lyn0612]

I started the process of reclaiming bank charges and wrote to my bank giving the amount etc. I received a letter back saying all calims had been haulted....etc. I've not processed the complaint any further, if the courts rule in favour of refunding the charges will I be able to claim or should I have process the claim to the court?

[chauvesouris]

Assuming the judgment goes in our favour and there is no appeal, the situation is clear: the banks will be obliged to refund any charges they have taken unlawfully. There won't be any need to go through the courts - the only time this will be necessary is if there is some disagreement about the amount you are claiming.

If the banks appeal then the situation may become more complicated. It is not clear how the county courts will respond and it is likely that the FSA will allow the banks to keep claims like yours on hold. It isn't fair, but the FSA clearly leans towards the interests of the banks. In my case, now in Worthing, the judge has ordered that we let him know whether we've come to an agreement within 28 days of judgment in the High Court case.

The only suggestion I could offer is that you sit tight - starting legal action at this stage could be seen as unnecessary litigation and so you would have trouble getting your costs back.

[nicsussex]

Originally Posted by chauvesouris

The only suggestion I could offer is that you sit tight - starting legal action at this stage could be seen as unnecessary litigation and so you would have trouble getting your costs back.

Incorrect - if your charges go back to almost 6 years and you have the money to fund the court claim then you should undoubtedly file your claim now. There is no danger of this being classed as 'unnecessary litigation'. That said you have to accept that the claim will be stayed but at least you are progressing things for when judgement is given and protecting any charges that may be lost to the limitations act.

[chauvesouris]

That would be true if it wasn't for s32 of the Limitation Act and the interpretation of that section in Kleinwort Benson v Lincoln [1998] All ER (D) 518.

Section 32 allows for the postponement of the limitation period in case of mistake (and fraud and concealment). The period of six years doesn't start until the mistake is discovered - and in law it has not yet been discovered. When the court rules that the banks have been acting unlawfully the clock will start ticking. The House of Lords made this quite clear in their judgment - the cause of action might be extended for an indefinite amount of time.

The idea that, by filing your claim now, you are progressing things for when judgment is handed down is, it seems to me, flawed: if we win then you won't need the court (unless there is a dispute about quantum - at which point you would start proceedings). Anybody with an ongoing case will have to contact the bank and get them to settle. If the bank refuses to settle then one will have to apply to the court for summary judgment (part 24 CPR), or wait for a full hearing. And if we lose... <shudder>.

There is some merit in the idea of trying to get the bank to agree to the amount they will give you if they lose - that might get you ahead when things start moving again.

I suppose the argument that you had started proceedings to avoid being time-barred might be persuasive if the bank were to refuse to pay your costs.

I still stand by my advice - there is no advantage to be gained from applying now but there is a high risk that your application fee will be wasted.

[renegotiation]

I don't have the will power to trawl through this thread. Does anyone know if there any courts in the Sussex/Hampshire area that are definitely still progressing with claims?
Thanks.

[georgieboy]

renegotiation

Have you got a court date etc if so you could give your court a ring and find out what the situation is there...

[renegotiation]

I'm going to be making a claim soon. If there is a court in the area that is not staying claims I will use that court.

[porcorosso]

Hi, new bug here. Last year I wrote to my bank, Barclays, with the template letter for statements/printouts going back 6 years. I got these but before i could submit a list of charges i wanted back i got the test case letter from them.

I have held back on submitting to them my claim but now think i need to get my claim to them in the post. This doesn't mean i 've initiatede court proceedings yet.

My question is do i need to get my list off asap or should i wait some more?

Any advice gratefully received, thanks.

[remus]

Hi porcoosso, welcome to CAG,

You need to send the preliminary letter in the bank templates.
As your claim go's back six years you need to start the ball rolling before you lose any charges that go beyond the six years time limit.
Once you are in the system they will have to honour the claim.

"How do I...?" A Dummies' Guide to this Forum this should help you start your own thread and ask any questions.

Good luck

[mrkhm]

hi,

is anyone using the money claim website?

[Dougal16T]

Good morning everyone...

I have used Money Claim Online and found it very good - unless you need to get a warrant issued........!

Just a general thought...why are we not looking at the problem as far as regaining our charges and the information relating to them from another angle....see The Fraud Act 2006.....!!

Copy of letter sent today to Mackenzie Hall....

Thomas Lloyd
Mackenzie Hall
30 The Foregate
Kilmarnock[
KA1 1JH 20th May 2008


First Class recorded delivery

Re: M XXXXXX


I do not acknowledge any debt to your company or any other person

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.
I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.
It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.
Royal Mail have confirmed receipt by you of this letter.
This letter required certain information from you – that information is still outstanding.
In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

The appropriate sections read:

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

This section makes it an offence to commit fraud by false representation
Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.
Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.
Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:
"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:
"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."
Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.
In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

Section 8: "Article"
Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

Sorry this post is a bit lengthy...but does anyone have any comments? I think Section 3 applies particularly to ALL Financial Institutions.
Best wishes to you all
Dougal

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Last edited by Dougal16T; 20th May 2008 at 09:47