Estoppel

[sazz]

Does anybody have any thoughts on this regarding a defence with our claims if we also have had unauthorised debits from our accounts to cover admitted cashier errors when entering the amounts etc?

 

I've briefly mentioned this in my BOS thread which is currently running.

 

Part of claim is also regarding a cheque I presented to the cashier for £3.49.

Turns out the teller entered £349.00 by cashier error and had to repay the balance (£345.51) ASAP.

They subsequently took the amount, even though there were no funds to cover it without my consent or notice.

 

I'd spent the cash thinking it was benefits on a few bills and some food etc so I obviously wasn't in a position to repay.

I get my benefits into another BOS account so I'd try & repay as soon as I could in bits.

 

I heard nothing more about it, (apart from the 'unauthorised OD charge' and unpaid item charges I was now getting).

 

Next month my Housing Benefit came into my other BOS unrelated unconnected account and they transferred £400 of it (I got at the time £499.70) to cover the now grossly overdrawn account as a result of them taking the original £349 amount bacK & their charges.

 

I've been looking around and found this...

Case law (in particular, Ramsden v Dyson (1866) LR 1 HL 129, 170, per Lord Kingsdown, and Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, 151H-152A, per Oliver J) shows that, in determining whether or not proprietary estoppel operates in a case, the court will look for three elements:

 

(i) A believed that he had or was going to have a right in or over B's property;(1)

 

(ii) B created or encouraged the belief;(2) and

 

(iii) A acted in reliance on the belief.

 

If the doctrine does operate (and, being equitable, it requires clean hands: J Willis & Son v Willis [1986] 1 EGLR 62), A has an equity in the sense that he will normally(3) be entitled to an order giving effect to his belief: the court recognises, or secures the creation or transfer of, the right in or over B's property, in the form it judges most appropriate.

Copyright © 1997 Patrick Milne.

 

Case law (in particular, Ramsden v Dyson (1866) LR 1 HL 129, 170, per Lord Kingsdown, and Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, 151H-152A, per Oliver J) shows that, in determining whether or not proprietary estoppel operates in a case, the court will look for three elements:

 

(i) A believed that he had or was going to have a right in or over B's property;(1)

 

(ii) B created or encouraged the belief;(2) and

 

(iii) A acted in reliance on the belief.

 

or this from http://www.touchbriefings.com/pdf/976/26.pdf

 

an estoppel occurs when one party, by words or conduct, has led the other to believe in the existence of a certain fact situation and the other party has acted to his to his detriment in reliance on that fact situation.

 

In these circumstances the party whose conduct created the difficulty may be prevented (estopped) from denying the existence of that relevant fact situation and

estoppel is a rule of evidence (and not a cause of action) preventing a person from denying the truth of a statement he has made previously, or the existence of facts in

 

which he has led another to believe (Curzon - Dictionary of Law)

 

Surely people who've had this sort of problem could use this as a defence and further strengthen their case?

I found it quite hard (and upsetting!) to understand how they could justify taking almost all my rent money and then adding hideous charges and defaults and not giving a toss about the fact I'VE earned THEM a gross amount of cash over the years which seems to be filtering straight into the CEO's pocket...

 

Any thought on this would be welcome and maybe somebody who can make further sense of banks seemingly illegal thieving being lawful is much appreciated

[joneshousehold]

I have used something similar in the past. The case was something like Hong Shing Bank v Tai Ching Cotton Mill. I made a reference to it in my thread under the forum for Abbey - Another Claim. Bankfodder referred to it as the equitable estoppel. I think if you search google with the phrase equitable estoppel you may find it.

The main thrust is that if the bank makes a mistake and you change your position as a result, the bank stand the loss (they paid my mortgage for 1 month!). It also established that there is no obligation on a customer to check their statements.

Good luck.

[rbrears]

Nice idea but bound to fail I'm afraid.

 

The estoppel cases you quote are mainly deployed in claims for an interest in property (usually land) in family and probate cases.

 

The legal position in realtion to mistakes is far simpler. If the bank make a mistake and you spend the money they are entitled to it back.. Its no different to you finding that someone else's money has been transferred into your account by mistake or that your employers have paid you too much this month. Where there is a simple mistake then the money must be repaid.

 

The equitable relief you refer to depends on a relationship between the parties involved where one has lead another to believe that they will obtain an interest in propertty (e.g. a carer being told by an elderly person that they will get the house in thier Will; or a non-owning partner being told that if they stay home and look after the kids they will get an interest in the house; etc.) No such relationship exists where your bank makes a simple typo type mistake and puts the wrong figure on a credit to your account.

[dave]

It also established that there is no obligation on a customer to check their statements.

Good luck.

 

Where can I see something that backs this up?

 

This would be very good ammo against the service clerks (and Mr. Ian Mullen!) who claim that the charges can be avoided if customers look after their finances (almost impossible with the current stacked system).

[joneshousehold]

Found the case!

Tai Hing Cotton Mill Ltd -v- Liu Chong Hing Bank Ltd [1986] AC 80

 

There is a reference to it at

 

http://www.swarb.co.uk/lisc/Banki19851989.php

 

Hope this helps.

[BankFodder]

Estoppel is not restricted to property matters. It is generally available in most situations when the circumstances are appropriate. It is available and has been used from time to time for to defend against claims for repayment of money which has been paid out in error.

One needs to distinguish between proprietary estoppel and promissory estoppel.

 

However, as Rbrears suggests Estoppel would not work in the situation you suggest, but for this reason - and the clue is to be found in Sazz's opening oxymoron

Does anybody have any thoughts on this regarding a defense with our claims

Estoppel is only available as a defence and not as the basis for a claim.

 

 

You are claiming and not defending.

[rbrears]

Also in order for estoppel to succeed you need to show that you have acted to your detriment in reliance on a promise and that you have changed your position as a result. That just isnt so where money arrives in your account by mistake.

[BankFodder]

Also in order for estoppel to succeed you need to show that you have acted to your detriment in reliance on a promise and that you have changed your position as a result. That just isn't so where money arrives in your account by mistake.

 

You are quite right about the elements of an estoppel and in addition to having changed your position, it must cause difficulty or damage to revert: detriment

 

However, as far as bank accounts being exempt from the protection of an estoppel, I disagree that they are exempt.

As long as the requirements of utmost good faith - verging but not quite - towards a "uberrimae fidei" and the other elements are present then there is no reason why an estoppel shouldn't apply.

 

The court will not be fettered in it's application of equity. However, I would have thought that the court would be stringent about being satisfied as to the good faith of the party pleading the estoppel. I would expect that the balance of probabilities would go to 90% or more.

[Dixie60]

Hi all,

 

I am new to this and still very new to some of the terminology being used in this thread.

 

I have a situation whereby £1000 was paid into my Halifax account by the Natwest bank, this was paid through the Chaps payment service.

 

The Halifax contacted me and after informing them of the situation they told me they would not be persuing me for the money, the Natwest Bank have now written to me requesting the full amount.

 

The money was won as part of a National Lottery programme where I won a holiday, they gave us spending money to which I was unaware of how much they was giving us. The money was split between six people.

 

I have posted this in detail in the general Forum.

 

Any help would be great.

 

All The Best

 

Chris Cavanagh

[rbrears]

Not quite sure what you mean Dixie60 - are you saying the money wasn't yours?

 

BF - it is long established that if you receive money as a result of a mistake it must be returned. End of. No estoppel or anything else. Its not possible to construct a valid legal argument that allows you to keep money you got in your bank acount by mistake.

 

Sazz's example is a classic (in the sense of happens all the time). Money received by mistake and spent. You can't rely on the error made by someone else to say you dont have to repay money that wasn't yours and that you spent.

[joneshousehold]

BF - it is long established that if you receive money as a result of a mistake it must be returned. End of. No estoppel or anything else. Its not possible to construct a valid legal argument that allows you to keep money you got in your bank acount by mistake.

 

We didn't receive money by mistake but we did get a payout from the bank under the estoppel rule. The circumstances would equally apply whether it was received by mistake or a bill not paid by mistake.

 

Admittedly we didn't go to court but the bank paid up over £500 which in 1989 was quite a bit of money. They didn't pay our mortgage for no reason (and couldn't explain why). They argued we should have known which is your reasoning I believe rbrears. However at the time we were unaware of it and we had a lot of unusual toing and froing from the account. It was clear we changed our position because we started withdrawing cash. That was unusual on the account as it was an account we used solely for bill paying normally. We argued that whenever we withdrew cash the balance on the receipt was an incorrect notification of the money available. As a result we thought the money was ours. It was only later that we found it was the mortgage money. It was complicated by the unusual transactions going through and we relied on the reported balance to tell us what we had left.

 

The bank also argued we should have checked our statements but we quoted the case law in this thread that showed we did not have to do so. We had given the instruction and had every right to believe the bank had done as requested.

 

I really don't think the bank would have paid up if they thought we would not win. It took a lot of persuading and must have cost them quite a bit in the time it took to deal with our correspondence.

 

The point is that if you believe it is due (or in our case available) it cannot be claimed back. Equally if you don't notice it there is no obligation to do anything about it.

[BankFodder]

Promissory estoppel requires a pre-existing relationship, as has been suggested. So where you have received a payment from the NatWest and you have no contract with them, then there is no estoppel.

 

However, if you do have a contractual relationship then an estoppel can run - even in the face of a mistake by the claimant. Of course the defendant must not have realised that the overpayment was was a mistake. If this happened then this would remove the element of good faith which is required for the estoppel.

[Spiceskull]

Could this argument then be applied to bank penalty charges, almost in reverse? Effectively the customer is 'paying' money into the bank's account, in the mistaken belief that it is correct to do so. The bank accepts this money, again in the mistaken belief that it is entitled to the money.

 

The bank 'honestly' believes that it is entitled to make these charges, and therefore an 'honest misunderstanding' has occurred. Now that we know better, and we realise that the bank's belief was in error (unlawful) surely we are entitled to our money back.

 

I'm clearly not arguing against the contract terms position, but looking at seeing if this would be a valid argument for the long term claims, especially those that extend beyond the limitations period...

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

[Dixie60]

Not quite sure what you mean Dixie60 - are you saying the money wasn't yours?

 

BF - it is long established that if you receive money as a result of a mistake it must be returned. End of. No estoppel or anything else. Its not possible to construct a valid legal argument that allows you to keep money you got in your bank acount by mistake.

 

Sazz's example is a classic (in the sense of happens all the time). Money received by mistake and spent. You can't rely on the error made by someone else to say you dont have to repay money that wasn't yours and that you spent.

 

Hi rbrears, how it worked was we were told by the Lottery after we won the TV competition that it was an all expenses holiday and they would provide us with spending money, three days before we went £2000 was deposited into our account.

 

We went on the holiday and when we arrived back, there was a letter from the Halifax stating that there had been an over payment of £1000 into my account by mistake, I contacted Halifax and told them and they said the matter was now closed.

 

yesterday the Natwest have wrote to me stating that they want the amount in full yet i am not in the financial position to pay it back.

 

Once I recieved the £2000 I split it between the six family members who won the show with me.

 

Hope this explains it a bit better.

[andrew1]

I'd send the letter to the Halifax and refer to your conversation. If you didn't know how much was coming to you it was not unreasonable for you to accept it as being your prize. Unless you knew it was supposed to be £1000 then you could be accused of spending money you knew not to be yours and reasonably asked to return it. If you didn't then I believe it should be paid by the Natwest and I'd also send a copy to the National Lottery and ask them to sort it out with their bankers as it is causing you stress in their name. Thank them for the prize but .....They don't like bad publicity and I'm sure they wouldn't want you to have suffered like this. I don't think all this estoppel stuff comes into it. Good luck

[Spiceskull]

They don't like bad publicity

That is the understatement of the year - Camelot willl bend to whoever pushes the loudest...go and give them what they deserve. Reading your posts it is clear that the least they could do is tell you what the prize actually consisted of...stand up for your rights on this one...

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

[deemacperth]

Dixie, if they do persist in claiming for all the money, make sure you have proof of giving the money to your relatives as if the bank do pursue, they will have to pursue the individual amounts.

 

Although you received £1000, if you only gained £200 out of it, that's at worst what they can enforce YOU to pay back. Legally!!

 

Best to just detail that in a letter at this point, so if they do raise a claim, you can show the courts that you have informed them of the correct sum. You don't have to admit liability in the letter, just explain you received the money in good faith and split it between the following people in good faith.

 

It's all to do with the 'unjust enrichment' argument that the bank will use. As the bank knows that you have not benefited from the full £1000, they will be pursuing you recklessly (Courts don't like that)

 

Now whether the bank will pursue 6 seperate claims at an increased cost to itself for such a small figure is doubtable. The other option they have is to list all 6 of you as co - defendants, but to do that they need the full details of all 6 people.

 

Thats where I would attempt to find some stalling tactic if it was ME, not that I'm suggesting you do that.

 

Keep us updated on progress.

[andrew1]

You know all this talk of ' courts ' and ' claims ' on this issue of Dixi60 is pretty heavy for the actual problem. This is a case of common sense and negotiation on the obvious, we are going to frighten the poor woman to death with all this legal talk. Nat West c...cked up. Camelot would take a dim veiw of what they have done in their name and if she just puts the situation to Camelot and ask them to sort it out it will be done believe me. So long as she knew that 'A' prize was coming not £1000 then she was not to know how much was coming whether it's £2000 or £5000 - it was an all expenses paid deal and it is not unreasonable for her to have done what she did. For Natwest to press for it back is crass to say the least given the circumstances. Maybe they don't know the details and why she did what she did so if Camelot didn't inform her how much she was going to receive they have, albeit done what they did in good faith, c...cked up too. Leave the two of them to sort it out and admit that the lack of definate concise communication about how much was being given has caused this as well as the inefficiency of someone in the NatWest. Forget all this legal stuff it will never get that far anyway - as said before Camelot wouldn't want the publicity. Let them sort it out - leave it to them!

[deemacperth]

Understand your point Andrew, but before you tell us off, the post is in the Legalities section and was actually discussing estoppel first.

 

Dixie, by all means approach Camelot 1st. As they haven't told you the sum you were being awarded they most probably will take it on the chin and sort it out with NatWest.

[andrew1]

My apologies to all - no telling off intended and I was beginning to realise the thread was wondering.

[deemacperth]

Yeah, think it was the afternoon heat.

 

Dixie, 1st option, get Camelot involved. As you are meant to be going back on the telly as champions, they should be bending over backwards to help.

[Dixie60]

I have just had another call from the Natwest bank, they have told me that if I do not pay the amount they will send the Bailiffs to my home.

 

I have also just phoned Camelot and they have told me that the problem is with the Natwest not them.

 

this is really getting to me now, can't even describe how low and worried that I feel.

[deemacperth]

For a start, the NatWest cannot send the baliffs to your home without going to the court.

 

You can actually make a complaint about their handling of the issue. They are meant to deal with matters in a fair manner. Scaremongering is frowned upon.

 

I would write a letter to them detailing how you split the money in good faith with the following people. For a start, they should not be pursuing you for the full figure.

[df1970]

Ive just lost and incurred costs in the small claims court in a claim I made against a mortgage company for the refund of late payment fees. My claim was struck out at a summary judgement hearing and they were awarded £1000 costs on the basis of Estoppel.

 

They used the arguement that as I had paid off the account and my claim was not based on error or fraud then estoppel applied to protect them.

[marley 1]

After reading all your comments and post i have realised i'm not the only one in this extremely messy situation regarding mortgage express and walker singleton. Due to Ws i now have 2 properties sitting empty with over 24 months rent oweing between them since walker singleton took over them. At first i was informed that they were going to be relet by a company used by walker singleton who i look up on the internet and could find no trace of said company.

I then phoned mortgage express and was told that walker singleton were now going to sell the properties if i could not find the arrears oweing, i then informed them that i would pay what i owed before they put walker singleton in charge. I was told that i had to pay all the arrears in full and any charges for miss mortgage payments which at the start of my arrears it was roughly £8000 and it is now close to £42,000 and has eaten the equities in my properties which i feel was there plan. Each time i have phoned to try and sort the matter out i have passed from person to person and can not find any solution i have also sent several letters by registered post and have not recieved a response and when i enquired about the letters they said they had not recieved them. I have been told by several solicitors that i have a case of negligence but i am unable to finance it so i really don't know which way to turn. This has been going on for 2 years and after numerous times to try and come to an arrangement even asking for a meeting and it has all been declined all they want is the money which WS have allowed to quadruple.

 

If anyone could could give me any kind of advice i would be extremely grateful because i need to get control of my properties back as it is my only income and i feel i could lose my business and my home.