20 year claim limit in Scotland - ON TOPIC ONLY

[JonCris]

Sorry advocate whilst I don't speak for the board I'm sure all opinions are welcome here but with the greatest respect I suspect you not having ever been penalised by the money lenders it appears your pontificating about something of which you no little. Also I suspect your income is such that you have little or no need for their services as your not on a fixes income. Either that or like my kids who think there is a money tree at the bottom of the garden you have yet to leave home

To get a feel for what this site is all about I suggest you miss a couple of DD's & then watch the charges escalate to alarming levels almost overnight. Within a few days 1 missed DD will have incurred both an unauthorised overdraft fee of between £25 & £30 plus a DD return fee of between £25 & £30. Thats a possible £60 for going as littel as £1 overdrawn. Nor does it include the receivers penalty charges which could be anything upto another £50. So in almost the blink of an eye your £1 has escalated to over £100 Now because you can't meet your other liabilities (as there not enough in the bank because the bank take their charges 1st) it escalates even further until your hundreds of pounds out of pocket & if you don't believe me ask a few others on this site

Your inability to understand why most people get into debt shows a lack of understanding of the world in which you live.
I have no problem with the banks or any business making an HONEST profit which the banks aren't. Also to suggest that the banks are blameless is nonsense. Of course they are as they have specificly targeted consumers on limited incomes because they know that they will be 1st to fall foul of the penalty charges thereby adding to their profits & because of bad debt tax breaks at little overall cost. After all no point in targeting the more well off is there? They like you will never go overdrawn beyond their agreed limit

Also as for your other remarks regarding limitation I would remind you that the concealment clause was included in the act for a reason & I suggest the reason is precisely why many are now bringing claims outside the 6 years. As to whether they will be successful we'll have to wait & see but it will be interesting period in our fight with the money lenders.

As for the difference in laws. Of course there are differences we all know that. but there are also many simular laws. The Common Law is a moveable feast & often a finding in Scotland will be considered by the courts in England who will make the same finding.

Finally I would remind you that this site is about the unlawful & reprehensible conduct of the money lenders, which you choose to defend, & is not about all of us feckless debtors

BTW both myself & spouse students, like you always overdrawn, unlike you charged but despite the banks constant threat to cut us off managed to get our degrees

[mackie68]

hi all,
i am at court on thursday for proof hearing, RBS have posted defence that half my claim is time barred, i will endeavour to prove otherwise using the argument (in short) that since charges are unlawful, they are a breach of contract. and therefore i have 20 years from date of last breach to claim and also can go back last 20 years since date of "enlightenment" to their breach. i have researched some documentary evidence to support my position, but any more would be more than helpful, such as prior cases where such an argument was proven etc, otherwise its on a wing and a prayer and i hope they dont turn up.

[mackie68]

RBS BOTTLE IT!!

After stating my case before court, rbs agree to settle
before submittion of evidence ( of which i had very little)
my opening argument seemed to be enough to rattle their feathers

Obviously not prepared to argue that 20 year limit doesn't apply.

i advise everyone to go for it, nothing to lose and lots to reclaim!!!!!!

[Bookworm]

mackie68, well done you!!!

[Alasdair]

I'm very interested in this 20 year limit.

I previously had a business and private account with the RBS from 1989 to 1993 where £thousands was charged in fees. I also had business & personal account with the Clydesdale from 1995 to 1999 again £1000's charged in fee's.

I don't have statements with account numbers from the RBS, but if I proved my identity and address at the time would they have to give me the information required to reclaim these charges.

The RBS situation ended with a bankruptcy and they received £1000's in fee's and interest when I paid this off after receiving an inheritance.

If its possible I would like to try recovering this money.

Alasdair

[7givenchy]

Originally Posted by mackie68

RBS BOTTLE IT!!

After stating my case before court, rbs agree to settle
before submittion of evidence ( of which i had very little)
my opening argument seemed to be enough to rattle their feathers

Obviously not prepared to argue that 20 year limit doesn't apply.

i advise everyone to go for it, nothing to lose and lots to reclaim!!!!!!

Well done, I am due to have my case against HBOS heard on 4th Feb.
At the Preliminary hearing they lodged a defense that my case was time barred.

[7givenchy]

Hi mackie 68
I had contacted one of the moderators who gave me excellent advice regarding the second hearing of my claim against the Halifax for repayment of charges from 2000. I would appreciate confirmation from anyone that I am interpreting the advice correctly and putting forward the correct argument at court on Tuesday.

Their defence:
I have recieved a copy of their proposed defence from the court.
Their defence is ....that the case is out of time under section 6(1) of the Prescription and Limitation (Scotland ) Act 1973 which provides for a prescription period of 5 years. i.e that the five yers 'stopwatch' started running when the charges were incurred. They'll say that a reasonable person could have known or found out that penalty charges are not lawful, and so if I had a problem with it, I should have claimed at the time.

My Response is :
While it true that I could have found out that penalty charges are unlawful, there is no way I could possibly have known that HBOS's charges were penalties, since they refuse to disclose how they arrive at these charges. and they strenuosly deny that they're penalties. I should argue that the that the trigger for the five year limitation was actually in June 2006, when the OFT made its statement on penalty charges.

Should I submit the article from Burness on the 'Act'

[JonCris]

I should add something like whilst I might have found their charges to be unlawful I in keeping with most cinsumers assumed that the bank would act with fairness and honesty in the conduct of it's business with me

[7givenchy]

Hi JonCris

Thanks for this

Originally Posted by Advocate

I reiterate again, these claims are not based on contract. They are rather claims for repetition under the law of unjustified enrichment. Contractual rights and obligations may set the background, but there is no remedy in contract for the consumer in relation to bank charges.

Perhaps you could enlighten me as to the texts or authorities you rely on to inform yourself of your belief that contract is the basis for these actions?

I have just discovered this thread, and have a question for Advocate on the above post.

I have fairly recently come across a case which I think might show that these claims are based on breach of contract; the contract which provides that the bank will return money the customer has deposited in their account when the customer issues a demand for repayment. Our preliminary letter demanding the return of money unlawfully taken from the account in penalty charges is such a demand, and is therefore our cause of action when the bank refuses to make the repayment. If this is correct, the limitation period would only start to run at this point.

The case is this one

The argument is based on the following Court of Appeal case:

Joachimson v Swiss Bank Corporation [1921] 3 KB 110

The court held that for time to start running for limitation there needed to be a demand for payment from the customer. In his judgement Atkin LJ pointed out:

‘The practical bearing of this decision [as to the necessity for a demand] is on the question of the Statute of Limitations … The result of this decision will be that for the future bankers may have to face legal claims for balances on accounts that have remained dormant for more than six years.’

I would be very interested to hear your take on this.

[Robertxc]

Very interesting. And logical!

Mm, problem is I can't find a full 'transcript' of the case on google. I think it is in Paget's Law of Banking which costs about £400 and my library doesn't appear to have a reference copy.

[Robertxc]

Is it an English or Scottish case?

I think (but I don't know for sure) that the KB would stand for kings bench which would mean England.

however, it has been cited in a Scottish court I believe COMPANGNIE COMMERCIALE ANDRE S.A. v. ARTIBELL SHIPPING CO LTD+THE GOVERNOR AND COMPANY OF THE <b style="color:black;backgr ound-color:#ff9999">BANK</b> OF SCOTLAND, 21 February 2001, Lord Macfadyen

[Robertxc]

See also here:

40 Under Section 5 of the Limitation Act of 1980 and similar predecessor
legislation, an action may not be brought after the expiration of six
years from the date on which the cause of action accrued. In relation to
debt recovery, time does not begin to run until there is a debt presently
due and payable. In Joachimson v. Swiss Bank Corporation, 1921 3 KB
110, the Court held that a bank is not liable to pay the customer the full
amount of his balance until demand is made. The Court further held
that “the practical bearing of this decision [as to the necessity for a
demand] is on the question of the statute of limitations . . . the result of
this decision will be that for the future bankers may have to face claims
for balances on accounts that have remained dormant for more than six
years.” Id. at 130-131. Thus, under Joachimson, time does not begin to
run against the customer until demand for payment has been made, irrespective of the amount of time that has elapsed since the last transaction relating to the account. See, however, the Court of Appeal decision Mahomed v. Bank of Borada (November 16, 199 which held that if, following a demand for payment, the dormant account holder did not
renew his claim within six years and the bank closed the account or
transferred the account to a suspense account, the dormant account
holder would be time-barred from making a fresh demand.

Taken from here: http://www.crt-ii.org/ICEP/ICEP_Report_Annexes_1-9.pdf

[mcuth]

40 Under Section 5 of the Limitation Act of 1980 and similar predecessor legislation, an action may not be brought after the expiration of six years from the date on which the cause of action accrued. In relation to
debt recovery, time does not begin to run until there is a debt presently due and payable.

Oh now, I like that phrase - that sets it a bit clearer than the demand for the return of deposited funds, I think - especially when accounts have been longstanding overdrawn. In that then, the prelim letter is our establishment of debt due and payable.....?

Cheers

Michael