Any question of how the law of limitation applies to bank charges is perhaps premature since it has yet to be established that they are recoverable. That does not stop the point arising. Let's assume for the sake of argument that some or all bank charges are recoverable.

Anyone who argues that section 32 (1) of the Limitation Act 1980 means that customers can claim charges going back more than six years faces an uphill struggle.

The law of limitation exists because it has been decided that there must come a point in people's affairs where there is certainty. That overriding objective must be borne in mind.

The English law has long recognised that clear rules strictly applied can lead to injustice. In the case of limitation it recognises that the strict application of time limits may lead to injustice and hence section 32 (1) of the Limitation Act 1980 which allows (in the words of the heading to the section) "Postponement of limitation period in case of fraud, concealment or mistake".

In any case where the section 32 (1) is pleaded the court will bear the overriding objective in mind; it will not allow the section 32 tail to wag the Limitation Act dog as that would undermine the whole principle of limitation.

In any action you first have to show that there was some "fraud, concealment or mistake" within the meaning of the Act - I italicise those words as they important. Then you are up against the question of when it was that the "fraud, concealment or mistake" could with reasonable diligence have been discovered as that is the moment from when time begins to run.

I have conducted some online research and my impression is that the decisions on how section 32 (1) should be applied are not consistent. That is I suppose to be expected since the subsection exists to mitigate the harshness of the overriding principle if strictly applied in every case.

Whilst my intuitive feeling is that section 32 (1) is not going to be of assistance in bank charges claims, I do not wish to be dogmatic on the point but above all to stress that how the law applies to bank charges is far from certain. I therefore urge those who insist the law is certain in favour of the consumer to restrain themselves for fear of creating expectations that cannot be realised. We have already had enough of that when it comes to bank charges.

how about banks telling us the charges are fair etc, then taking 2 years to make an offer (which you don't accept) at the FOS and then saying you're over 6 years?

how about the banks telling us the charges are fair etc and not making an offer, the test case putting all claims on hold and now that people can start reclaiming, they are being told it's over 6 years?

or you don't accept an offer through the FOS and want to start court action only to be told you're over 6 years (because the FOS took 2 years to make a decision)?

surely 'concealment and mistake' come to mind?

i'm in all the above situations.

The basic point of limitation is that you have to bring an action within a certain time limit. Section 32 operates to postpone the date on which the limitation period starts in certain cases. Section 32 is only relevant to determine when the limitation period begins. It can have no bearing on what passes between the parties after the claimant becomes aware he has a right to claim. Once the claimant knows he has the right it can no longer be concealed from him. The defendant is perfectly entitled to argue on the basis of the facts or the law that he has no case to answer. Whether section 32 applies or not, you must start proceedings within the time limit to protect your position.

you must start proceedings within the time limit to protect your position.

this is not always possible due to other factors out of our control (such as the FOS).

this is not always possible due to other factors out of our control (such as the FOS).

How does that stop you starting an action within six years?

I would say the 6 years can only start once we KNOW we CAN reclaim Bank charges - which we still don't know -after the crazy SC decision and the apparent lack of activity since (other than GLC v HBOS in Glasgow Sheriff Court on 11 June).

Look at the situation with Credit Card default charges -where we can go back 6 years from the OFT report in April 2006 -i.e. we have until April 2012 to reclaim credit card default charges right back to when the very first unfair credit card default charge was imposed on us (around 2000).

The Shadow and others have dealt with this at length in some of the Credit Card default charges threads.

Hi folks. My situation is not regarding bank charges (I already got mine back, £2400, some years back ).

However I have started court action to recover overpaid ground rent on my property, they have demanded (and I' ve paid) £45 extra per year since 1995.

I have claimed back the full amount I have overpaid (Plus 8% interest), my landlords solicitor admitted that I had been overcharged due to a 'mistake' and offered to repay 6 years worth (relying upon the Limitation Act).

At this point I became aware of S32 of said act and pointed this out to them, also pointing out that they have admitted their 'mistake'.

Also I have raised this issue with them numerous times in the past, where they have denied any mistake, they also sent me a copy of a Deed Of Variation allegedly changing the amount of ground rent, later investigation showed that there was no such Deed !..

So not only could I rely on the mistake part of S32 but I think that the 'Deed' document sent to me would classify as 'fraud' or 'concealment'.

Anyway I'm still pushing for the full overpaid amount to be repaid and the court hearing is in July.

Andy

I have credit card charges going back to 1996 - am I out of time then even theough they were called late payment charges as I was just about to send LBA and they have told me I am out of time because of Limitation Act - was going to use S32 for this very reason

I have credit card charges going back to 1996 - am I out of time then even theough they were called late payment charges as I was just about to send LBA and they have told me I am out of time because of Limitation Act - was going to use S32 for this very reason

I think you would have to prove that you were misled somehow, S32 does allow for the limitation clock to freeze and a court could decide that it should start running again from the date you found out (or reasonably should of found out) about the 'mistake, fraud or concealment'.

I cant really see where this applies to bank or card charges.

Andy

Andy

Until the OFT report (in April 2006?) we did not KNOW that the Credit Card default charges are unfair - the card companies assured us their charges were fair and reflected their costs (fraud?).

We do know now - and we now have until 6 years after April 2006 to reclaim ALL credit card default charges and associated interest at their montthly reates compounded monthly - not just the balance over £12 (which is the amount that OFT have said is "not unfair").

However the law states any default charge must reflect the true cost - which it doesn't -and the card companies won't divulge their true costs - so they must pay up the lot - and do when challenged, although often only settling before going into court. You won't have seen any cases of credit card companies winning in - or even risking court on thsi point in the last few years!

See previous posts from me, The Shadow and others on the Capital One threads on this point.

Today's case in Glasgow Sheriff Court may determine the true cost of the bank charges - leaving the way open for us to reclaim the difference.

The 6 year limt will ONLY APPLY from the date of the verdict - giving us until June 2016 to reclaim ALL unfair bank charges.

Andy

 

Until the OFT report (in April 2006?) we did not KNOW that the Credit Card default charges are unfair - the card companies assured us their charges were fair and reflected their costs (fraud?).

 

We do know now - and we now have until 6 years after April 2006 to reclaim ALL credit card default charges and associated interest at their montthly reates compounded monthly - not just the balance over £12 (which is the amount that OFT have said is "not unfair").

 

However the law states any default charge must reflect the true cost - which it doesn't -and the card companies won't divulge their true costs - so they must pay up the lot - and do when challenged, although often only settling before going into court. You won't have seen any cases of credit card companies winning in - or even risking court on thsi point in the last few years!

 

See previous posts from me, The Shadow and others on the Capital One threads on this point.

 

Today's case in Glasgow Sheriff Court may determine the true cost of the bank charges - leaving the way open for us to reclaim the difference.

 

The 6 year limt will ONLY APPLY from the date of the verdict - giving us until June 2016 to reclaim ALL unfair bank charges.

Hi. I thought about this some more after my post and you have a good point, although I'd suggest that it would work thus:-

In my case, normally I couldnt claim for 1997, becuase 1996+6 = 2003, BUT I didnt find out about the 'fraud, concealment or mistake' untill 2006, this gives me untill 2012 to start my claim.

To be honest the way S32 is worded is quite hard to get your head around.

In my (non-bank charges related case), in 2003 I specificaly asked my landlord about the ground rent issue and was sent a 'fake/misleading/incorrect' document. I'd suggest that the same MAY apply to bank charges if you specifically wrote to them and they told you the charges were fair and legal (Although no court has yet concluded that they are NOT fair and legal).

I did have a good court case on my PC somewhere which dealt with all the S32/limitation issues, Ill try and dig it out.

In the meantime, this site has a good explantion.

PROFESSIONAL NEGLIGENCE CLAIMS - WITHOUT LIMITATION? - Representation and Advice for Commercial Clients - Humphreys & Co. Solicitors

Andy

Andy

I am pretty sure you have 6 years in which to make a claim from finding out you can (i.e the OFT report into Credit Card Default Charges) - I don't believe it's the case the claim can only be for the previous 6 years, although that is what the OC will contend at first.

I am sure the claim can go back to the very first unfair charge - which actually came in around Sept 2000 for most credit cards (but bank charges were much earlier) - so academic as far as credit card default charges are concerned. I believe any card company will pay out ALL charges and interest reclaimed - but possibly just before going to court if it's a pretty high amount.

BD

Andy

 

I am pretty sure you have 6 years in which to make a claim from finding out you can (i.e the OFT report into Credit Card Default Charges) - I don't believe it's the case the claim can only be for the previous 6 years, although that is what the OC will contend at first.

 

I am sure the claim can go back to the very first unfair charge - which actually came in around Sept 2000 for most credit cards (but bank charges were much earlier) - so academic as far as credit card default charges are concerned. I believe any card company will pay out ALL charges and interest reclaimed - but possibly just before going to court if it's a pretty high amount.

 

BD

Surely this would only apply IF you could persuede a judge that S32 applies, you would have to persuede him that fraud or deliberate concealment of facts had occurred, which I believe you would find tough.

Andy

That bears out everything I am hearing elsewhere.

Thanks Andy.

BD

where in the legislation does it say that you can only go back 6 years from the date of your claim?

Tifo

I agree. I think you have 6 years to make a claim for some wrong doing (from some point when you discovered the wrong doing or other definition of that point ) - but I think there's nothing to stop the claim going back to year dot if that single wrong doing had lasted for donkey's years - like bank charges.

BD

That bears out everything I am hearing elsewhere.

 

Thanks Andy.

 

BD

Something went wrong with this reply. I meant to say the date of the discovery of the "fraud" or "error" was the OFT Report in April 2006 - up till them we "believed" the card companies' lies - so accepted their charges were "fair".

The wording of their lying letters claiming this should only be construed as deliberate concealment - just as the wording of the recent bank letters after the SC ruling "ha ha we won - you lost" did not report the full facts of the SC ruling and is another example of fraud or deliberate concealment.

I'll need to check my posts more carefully after editing in future.

BD

I agree. I think you have 6 years to make a claim for some wrong doing (from some point when you discovered the wrong doing or other definition of that point ) - but I think there's nothing to stop the claim going back to year dot if that single wrong doing had lasted for donkey's years - like bank charges.

I understand this. But where in the law does it state we can only go back 6 years which is what the banks quote?

For example, i have credit card claims going back 6 years from 2007 but since the bank hasn't offered to settle (it's been through the FOS) it's now more than 6 years for each charge and the bank is quoting the Limitation Act 1980 and ignoring my assertions re s.32. It's an ongoing complaint from 2007 but they said they'll look at it as a new complaint and then say i am out of the 6 years for claiming and that they won't correspond anymore.

So i need to know where in the law it states we can only go back 6 years from the date of claim. I know it says we have 6 years from the date of discovery to make a claim but what if the charges are further than that?

Tifo

I'm agreeing with you. The Banks are deliberately trying to mislead.

I firmly believe that until we get a court ruling in OUR favour the 6 years to make the claim hasn't even started to tick away - and since it is the same "wrong" (unfair charges) then the claim can go back to claiming all such charges and interst right back to year dot.

Let's hope GLC are doing well in Glasgow today!

BD

Let's hope GLC are doing well in Glasgow today.

My claims are for credit card charges so i don't think the GLC case makes any difference.

All Credit Card default charges (and associated contractual interest compounded monthly) are all reclaimable already - since OFT report of April 2006. Howeve rthe GLC case could make the Banks go bust - or at least set up a huge backlog of claims - so get the credit card charges claims in now and get to the top of the queue!

BD

Hi folks. My situation is not regarding bank charges (I already got mine back, £2400, some years back ).

 

However I have started court action to recover overpaid ground rent on my property, they have demanded (and I' ve paid) £45 extra per year since 1995.

 

I have claimed back the full amount I have overpaid (Plus 8% interest), my landlords solicitor admitted that I had been overcharged due to a 'mistake' and offered to repay 6 years worth (relying upon the Limitation Act).

 

At this point I became aware of S32 of said act and pointed this out to them, also pointing out that they have admitted their 'mistake'.

 

Also I have raised this issue with them numerous times in the past, where they have denied any mistake, they also sent me a copy of a Deed Of Variation allegedly changing the amount of ground rent, later investigation showed that there was no such Deed !..

 

So not only could I rely on the mistake part of S32 but I think that the 'Deed' document sent to me would classify as 'fraud' or 'concealment'.

 

Anyway I'm still pushing for the full overpaid amount to be repaid and the court hearing is in July.

 

Andy

I fear your claim may fail.

The point you are missing is that an overpayment is always a mistake. What is important is (quoting the Act) that "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." Whether and whenever you ever saw the lease or a copy of it I think you must be deemed to be fixed with knowledge of its contents from the time you took the lease on. That means you could have discovered the mistake immediately. No one has ever concealed, or was ever in a position to conceal, from you what the correct rent was. The fact that a mistake was denied is irrelevant since you possessed (or are deemed to have possessed) what you needed to know what the correct rent was. The alleged deed of variation also had no bearing for the simple reason that it did not exist. (I confess I am puzzled how they could have sent you a copy of a non-existent deed. Even if the deed was forged that has no bearing because you could have discovered the error before the document was produced.)

Unless therefore there is some devil in the detail that you have not mentioned I would strongly urge you to settle for six years' overpayment.

I fear your claim may fail.

 

The point you are missing is that an overpayment is always a mistake. What is important is (quoting the Act) that "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." Whether and whenever you ever saw the lease or a copy of it I think you must be deemed to be fixed with knowledge of its contents from the time you took the lease on. That means you could have discovered the mistake immediately. No one has ever concealed, or was ever in a position to conceal, from you what the correct rent was. The fact that a mistake was denied is irrelevant since you possessed (or are deemed to have possessed) what you needed to know what the correct rent was. The alleged deed of variation also had no bearing for the simple reason that it did not exist. (I confess I am puzzled how they could have sent you a copy of a non-existent deed. Even if the deed was forged that has no bearing because you could have discovered the error before the document was produced.)

 

Unless therefore there is some devil in the detail that you have not mentioned I would strongly urge you to settle for six years' overpayment.

Thanks for your thoughts, I shall add some further detail to see if it clarifies anything.

I was supplied with a copy of the Deed when I initially questioned the ground rent amount, the Deed had some changes to be made to the original lease.

Point 1 was that the ground rent shall be raised to £xx.

It was only some years later that during some legal work that I obtained another copy of this deed, this time from the Land Registry, this was identical to the one I had been sent by the freeholder with one major exception, Point 1 didnt exist, therefore there had been no change to the ground rent.

So one must ask where the version held by the landlord came from ?. I dont think i shall go as far as saying that they fraudulantly constructed a copy, but I believe the wording of S32 "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." applies and that I didnt uncover the mistake/concealment untill approx 2006, this would allow me to seek to recover the overpaid amounts going back to 1997.

I belive that S32 exists to prevent someone hiding or concealing information untill the 6 year clock has run its cause and then going to deny any liabilty.

Does my clarification make any difference to your views ?

Andy

subs

Does my clarification make any difference to your views?

There is certainly a devil in the detail!

The deed of variation existed and was registered at HMLR when you bought. The question is therefore whether you are fixed with notice of what the deed said (or in fact did not say) from the date of purchase or whether, in the circumstances you describe and bearing in mind that the deed did not in fact come to your attention until later, you were entitled to rely on the copy of the deed supplied by the landlord/landlord's agent. To put it another way, is it your actual state of knowledge when you first queried the amount of rent that counts or the knowledge imputed to you? It could go either way in court.