Update.......

Phone the sheriff's clerk today(Tuesday) and the HBOS has still not submitted a defense.

I'm off to court tomorrow to see what happens.

I'll post an update tomorrow.......

Good luck Pict.

To which pictish tribe do you belong? ;-)

Well, having read all the arguments here, I'll run them by my solicitor to see what he says. If he is unhappy, then I think I'll have to forget going after the charges pre-5 years ago. If I can't convince him, I don't think I have a cat in hells chance of convincing a judge.

I'm having to go ordinary cause, so I don't really have much choice about using a solicitor. But to be honest, it does make me feel more secure being in professional hands.

Hmmm, I too am feeling shakey about this 20 year claim. I'll be extremely glad when Robertxc comes back on to clarify the situation.

Didn't Mackie win her/his case on the "20 year claim" basis? Somebody did and stated that they'd just bluffed it.

Can anyone clarify the situation, PLLLLEASE?

Thinking of you today, Pict. Will be there with you in spirit as will, I am sure most others on this board.

Seahorse,

 

The Bank have not breached their contract with the customer. The contract provides an express term which states that the Bank will apply a charge of a certain amount (changes in these amounts communicated to customers periodically in the leaflets which they send with your statements but few take notice off because the print is too small and lengthy) on the customer's default. When the customer defaults, the Bank apply the charge. The Bank is not in breach, on the contrary it is acting strictly in accordance with the contract.

 

The area of law we are dealing with is not contract, but unjustified enrichment. This is related to, but distinct from contract and has separate rules and consequences.

But it is ME who has broken the contract by bouncing a cheque, going overdrawn or whatever. And I have only now become aware of the unlawful penalties that have been applied for doing so. So surely contract law still applies?

Just returned from court.

We have been granted a decree and will receive the extract on the 22nd March.

Thanks to everyone who has helped me get through this. Lets hope nothing else happens and they pay up.

Just to update everyone, I've decided to seek a definitive (or as definitive as it gets) opinion on the limitation rules. This is going to take a couple of days.

Definitive sounds good. The wait will be worth it, I'm sure.

Looking forward to clarification on this, Robert,

I've been haring round, trying to find the equivalent section of the Prescription and limitation act (Scotland) 1973 (as amended) to S.32 of the Limitation Act 1980 all night.

Am I correct in thinking it is Section 11(3) as outlined in this case report?

"Prescription"

There are exceptions to this rule that apply in similar terms to the law in England and Wales. For example, Section 11(3) of the Act provides that where the creditor was not aware, and could not have with reasonable diligence been aware, that loss, injury or damage had occurred, the starting date for the running of time shall be the date when "the creditor first became, or could with reasonable diligence have become, so aware".

From paragraph 4.

Just to let everyone know, there is now a copy of the Prescription & Limitation (Scotland) Act 1973 available in th statutes forum, which is accessed from the forum home page.

Excellent stuff, many thanks Robert. So it's S.6(4)(a) then?

Many thanks Robert

I think Section 9 has some bearing on my situation

Thank you Robert. Will check it out.

Got the Vic tomorrow am so maybe tomorrow afternoon.

Seahorse,

Your breach of contract is the trigger for the imposition of the charges. As a pursuer seeking return of these sums, you have to have a legal basis. You cannot cite your own wrongdoing as a justification for receiving a benefit (generally, the law does not allow a person to profit from their own wrongdoing).

The legal basis here is that the Bank has been unjustifiably enriched by the imposition of charges based on a clause of the contract which, if unlawful, would be unenforceable. This being the case, the Bank have money taken in circumstances where they had no legal power to take it and there is no good equitable reason for them to retain it. This is the law of unjustified enrichment.

Everyone else,

The relevant section of the 1973 Act is indeed s.11(3). s.6(4)(a) deals with postponement of the period where there has been fraudulent activity by the Bank, or the Bank has induced the customer into error as to their right to claim. There has been no fraud or error (as defined in law)in this situation, therefore the section has no bearing.

So by imposing their assertion that their charges are lawful on the customer (else, by not accepting the charges, the bank would not accept the customer), the bank has not induced the customer into error? Or by further stating after a claim has been made, they are STILL not inducing the customer into error? Is that what you are saying.

I'm not saying you are wrong, by the way. I am merely trying to make sure I have everything clear in my head, as I have no doubt this is going to go all the way in Ordinary Cause, and I need to have all the arguments for and against before I make a definite decision. Appearing stupid in front of the judge will have very expensive consequences if I get it wrong. And I firstly need to convince my solicitor too.

Seahorse,

If you had challenged the Bank some time ago regarding the legality of the charges and they had represented to you that, for example, they had cleared the nature and amount of the charges with the FSA and/or OFT. This may amount to a misrepresentation inducing you into error as to your right to make a claim.

The fact that they impose the charges does not of itself induce you into error in the sense the term is used in 6(4). It is certainly possible to make an argument along the lines you imply, but I see stronger arguments against and in a litigation situation, while it is possible, and perhaps wise, to have various arguments to support your case, these takes time to formulate and argue and time is money, especially when your solicitor costs £250 an hour!

Once your claim has been made (you have a summons served on the Bank), you are regarded as having made a relevant claim (see s.9) which stops the prescriptive clock, so what the Bank says following this is pretty much irrelevant to the question of prescription.

Your solicitor will not require much convincing of the prescription point and, if he/she is any good, they really ought to advise you to try to push the boundaries. However, they should also make you aware of the dangers here. The Bank have deep pockets and, were you to push for too much and win in the sheriff court, the Bank may keep you in the appeal courts for years. They can afford to do that, you cannot. It is a game, just remember Jarndyce v Jarndyce and sometimes taking your gains/cutting your losses is the smartest thing to do.

re 6 4 a The banks have alleged over a long times in, publications, that everything they do is within the law- an induction of error in terms of the act and perhaps going as far as falling under 6 (4) b There is also the other part of Section 6 for some people regarding mental condition

case law suggests that, in some cases, depending on relationships between parties and the reputation of them that reasonable diligence might mean a consumer doing nothing

Hi

I have a full hearing of my claim for charges over six years on Tuesday 3rd April. I have been asked to provide details of successful claims over six years can anyone help with this please. I had decided not to pursue the case, but when I spoke to the court clerk she advised that I may have to pay costs so I have to go along and do my best.

don't suppose mine would help being in England? I got 13.5 years settled out of court from HSBC

Hi

 

I have a full hearing of my claim for charges over six years on Tuesday 3rd April. I have been asked to provide details of successful claims over six years can anyone help with this please. I had decided not to pursue the case, but when I spoke to the court clerk she advised that I may have to pay costs so I have to go along and do my best.

Bong

Well done !!!

I would be most grateful for the details

Regards

there's a summary of my claim from start to finish here http://www.consumeractiongroup.co.uk/forum/hsbc-bank/76820-calling-all-hsbc-claimants.html#post671596 with links to all the documents submitted in the main thread. If you want my name and claim number etc PM me.

So by imposing their assertion that their charges are lawful on the customer (else, by not accepting the charges, the bank would not accept the customer), the bank has not induced the customer into error? Or by further stating after a claim has been made, they are STILL not inducing the customer into error? Is that what you are saying.

 

I'm not saying you are wrong, by the way. I am merely trying to make sure I have everything clear in my head, as I have no doubt this is going to go all the way in Ordinary Cause, and I need to have all the arguments for and against before I make a definite decision. Appearing stupid in front of the judge will have very expensive consequences if I get it wrong. And I firstly need to convince my solicitor too.

Did you speak to a solicitor, I am in the dock with Nationwide this week in Scotland court.

Hi

 

I have a full hearing of my claim for charges over six years on Tuesday 3rd April. I have been asked to provide details of successful claims over six years can anyone help with this please. I had decided not to pursue the case, but when I spoke to the court clerk she advised that I may have to pay costs so I have to go along and do my best.

Any update on what happened? what went well and what didn't?