judgement in full
xxxxxxxxx v HALIFAX PLC
1. Mr xxx claims against his bank, Halifax plc, a repayment of bank charges debited from his account over the period 30 December 1995to 16 March 2004. Mr xxx issued his claim on 2 August 2006. Halifax have, without any admission of liability, repaid to Mr xxx the charges levied since 2 August 2000, together with interest calculated at 8% per annum. This application concerns Mr xxx claim for the repayment of charges prior to 2 August 2000. Halifax have applied to strike out that claim on the grounds that it is time-barred under the provisions of the Limitation Act 1980. Mr xxx resists the application. He submits that the pre-August 2000 claim is not time-barred. He contends also that, even in relation to post August 2000 charges there is an outstanding claim for interest, which he seeks at 29.8% (not 8%), and which. he argues, should be allowed to proceed to trial.
2. The application was advanced by counsel for Halifax, Mr McGee. Mr xxx represented himself in person. Both parties provided me with written submissions and Mr xxx provided a helpful bundle of documents. I am grateful for their assistance. In addition, in support of the Bank’s application is the witness statement of Mr Andrew Horton, dated 19 December 2006.
3. The application does not concern the issue of whether or not Halifax ought to repay any of these charges. It proceeds on the assumption (made for the purpose of the application only) that Mr xxxx is correct in his arguments that the charges were wrongfully levied and that Halifax should make repayment. Those assumptions have not yet been tested. If I were to allow the claim to proceed it would go on to a trial at which Halifax would be at liberty to defend the merits of the claim.
4. The legal basis upon which Mr xxxx puts his case is however relevant for the purpose of this application. His “Statement of Case” (skeleton argument) identifies four broad arguments: (1) that the debiting of the charges involves a breach of contract. (2) that the charges are repayable because of the provisions of statute, (3) that the charges ought to be repaid because they are unlawful penalties, (4) that Halifax are in breach of their fiduciary duty. Halifax contend that, however Mr xxx formulates his case, the primary limitation period is 6 years. Mr xxx riposte, if that is correct, is that the limitation period should be suspended because of the operation of sections 32 Limitation Act 1980.
The claim in contract
5. Mr xxxs first argument is breach of contract. The primary limitation period for breach of contract is 6 years: section 5 Limitation Act 1980. Time runs from the date of the accrual of the cause of action. The cause of action accrues each time a breach occurs. In this case a breach would occur, if Mr xxx is correct, each time Halifax levied their charge. Each charge levied prior to August 2000 gives rise to a separate cause of action the limitation period for which has therefore expired.
The claim under statute
6. Mr xxx contends alternatively that the charges infringe the provisions of the Supph of Goods and Services Act 1982, the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. Insofar as his claim might be characterised a claim for the repayment of sums due under an enactment (because, so his argument goes, statute renders the charges void and he is entitled to his money back by virtue of the statute), section 9 Limitation Act applies. Insofar as Mr xxx might seek alternatively to use these statutory pros isions to argue a breach of statutory duty in tort, then section 2 would apply. Both sections provide for 6 year primary limitation periods. In either case. the accrual of the causes of action would take place at the time when the ‘ rongful charges were debited from the account. In all cases of pre August 2000 charges therefore the primary limitation period for claims to which sections 2 and 9 apply has expired. (And insofar as Mr xxx arguments founded on statute might relate more aptly to the claim in contract, the result is the same. applying section 6 of the Act).
Unlax\ ful penalites
7 Mr xxx argument to the effect that each charge is an unlawful penalty and therefore void and unenforceable, so that the charges levied should be repaid. may arguably be characterised as a claim for equitable relief (for example, as a claim for equitable compensation or as a claim for an injunction to direct the repayment of the unlawful charges). So characterised, section 36 Limitation Act 1980 applies, which provides, insofar as relevant:
“Equitable jurisdiction and remedies:
(1) The following time limits under this Act, that is to say
(a) the time limit under section 2 for actions founded on tort
(b) the time limit under section 5 for actions founded on simple contract
(e) the time limit under section 9 for actions to recover a sum recoverable by virtue of any enactment
shall not apply to any claim ... for an injunction or for other equitable relief, except in so far as any such time limit may be applied by the court by analogy in like maimer as the corresponding time limit under any enactment repealed by the Limitation Act 1939 was applied before 1st July 1940.”
8. The wording in the latter part of this section is not easy to follow or to apply. Fortunately, guidance is given by the Court of Appeal in Compania de Seguros Imperio v Heath  1 WLR 112. The essence of that decision is that where the remedy in equity corresponds to a remedy at law, and the latter is subject to a time limit, the court acts by analogy and imposes on the
equitable remedy the same time limitation.
9. I accept Mr McGee’s submission that the relief sought by Mrxxx inrelation to the alleged penalties is the same as the relief sought under the alternative claims discussed above, to which sections 2, 5 and 9 of the Limitation Act app1. In short, Mr xxx just wants his money back, by whatever route he can achieve it. I accept therefore that the limitation periods provided for by those pro isions apply equally to the claim as formulated in equity. In respect of charges levied before August 2000 therefore the 6 year limitation period has expired also in respect of Mr xxx “penalty” claim.
Breach of fiduciary duty
10. Mr xxx contends that the bank is a fiduciary, owing him fiduciary duties, and that in levying excessive charges it is in breach of its fiduciary duty. Alternatively Mr xxx maintains that the bank is a trustee, he a beneficiary, and that the bank has in effect taken trust money from his account without due authority. He relies on section 21(1) Limitation Act 1980 which provides that
period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action
(a) in respect of any fraud or fraudulent breach of trust to which the trustee x as part v or privy; or
(b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.”
He has referred me to Nelson v Rye. a case in which fraud was alleged.
11. I prefer however Mr McGee’s arguments. Although the bank-customer relationship is indeed a fiduciary one. that does not mean that every claim brought by a customer against a bank is a claim for breach of fiduciary duty or breach of trust. The court, he submits. should look at the substance of the claim to see if it is properly characterised as a claim to which section 21(1) applies. I agree. I accept Mr McGees submission that this is not a claim by a beneficiary against a trustee, or a claim for breach of fiduciary duty; rather it is a claim concerning the enforceability of charges payable pursuant to the terms and conditions of the account. Section 2 1(1) has no application.
12. Mr xxx asserts that Halifax has deliberately concealed essential facts relevant to his claim and that therefore, even if 6 year limitation periods apply, the running of time is suspended. He relies on section 32 of the Limitation Act
.( 1) ... where in the case of any action for which a period of limitation is prescribed by the Act, either
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the [claimant’s] right of action has been deliberately
concealed from him by the defendant; or
© the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the [claimant] has discovered the fraud, concealment or mistake (as the case may be) or could xith reasonable diligence have discovered it
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”
13. Mr xxx is not asserting fraud. Nor is his case one for the recovery of monies paid b him under a mistake. His specific complaint is that he wrote to Halifax asking for “a full breakdown of the costs to which you have been put as a result of my breaches (letter 6 July 2006), to which he received no reply. He submits that Halifax’s refusal or failure to tell him what their actual costs v crc. and to justify their charges. amounts to a deliberate concealment within the meaning of section 32.
14. When considering section 32 I remind myself that the House of Lords in Cave Robinson Jarvis & Roif (‘afirrn,,  UKHL 18 rejected the Court of Appeals approach and held, effectively, that sections 32(1)(b) and 32(2) concern acts of knowingly deliberate concealment or knowingly deliberate breaches of duty, and that the plain words of the statute, “deliberately concealed” and “deliberate commission of a breach of duty” needed no embellishment (see for example paras [61, 65] per Lord Scott, with whom Lords Slynn. Mackay and Hobhouse agreed).
15. Mr McGee referred me also to Johnson v The Chief Constable of Surrey 919 October 1992), a transcript of which is exhibited to Mr Horton’s affidavit, where the court identified the distinction between facts relevant to the right of action, which is what section 32 is referring to, and facts which improve prospects of success. which have nothing to do with section 32 (Rose U at p.6E. Russell and Neill LJJ agreeing).
16. Mr xxx kne\\ that Halifax was debiting his account with bank charges. He also knev the amounts of those charges. or — if he is right in saying that he doesn’t think he received notice of them in the post — he could readily have ascertained them because they were published openly by Halifax. There was no concealment, let alone deliberate concealment there.
17. Mr xxx argues however that knowledge of those facts was not all that sas relevant to his right of action for the repayment of unenforceable penalties. One further relevant fact, he says. vas that the charges did not fairly reflect the loss suffered by the bank by reason of the various “breaches” which triggered those charges. It is that fact, he maintains, which makes these charges unenforceable penalties. And, his argument goes, that fact was concealed from him by Halifax, deliberately and knowingly.
18. I am unable to accept this submission.
(1) The “fact” to which Mr xxx refers is, I consider, more properly characterised as opinion or argument. Mr xxx recently acquired knowledge (of the asserted “fact”) has not come from Halifax, but from others (websites, journalists and consumer organisations). But such sources are not, in truth, revealing facts; they do not know what Halifax’s actual costs, losses or expenses are; they are expressing opinions. There is an analogy here. I think, with contractual terms and issues of unfairness. Moreover, this so-called “fact” is part of Mr xxx argument that the charge purports to quantify damages for loss suffered by the bank through their customers’ breaches of contract. Halifax argue (or would if the matter proceeded to trial) that the charge has nothing to do with supposed losses suffered by them, but is an agreed payment for a service. Although Mr xxxs argument may win (indeed is assumed to win for the purpose of this application) that does not gainsay the observation that it remains an argument.
(2) If it is ‘fact”, there was no concealment by Halifax. Halifax published their charges. Mr xxx was able to formulate his own view as to whether the charges were excessive, with or vvithout the help of others (such as consumer organisations) who were able to comment intelligently on the issue. He did not need Halifax’s co-operation or disclosure to obtain the knowledge that the charges were excessive (if they were). As it happens, if he did need Halifax’s co-operation. Mr xxxx did not seek it. He did not raise queries with the bank about those charges either before 1995 when he was first notified of or able to ascertain what they would be, or from 1995 when he first saw that they were being debited from his account.
(3) If there is concealment. it is not deliberate in the sense explained in Cave. Unwillingness to volunteer information is not the same as a deliberate concealment. And unwillingness to disclose evidence voluntarily is not the same as deliberate concealment of a fact relevant to a right of action. The particular failure of which Mr xxx complains, namely the bank’s failure to respond to his 2006 letter requesting information, does not advance his argument. The information sought as evidence, not fact. That evidence might well be material to the prospects of success of Mr xxx claim, or to the prospects of success of Halifax’s defence, but, as Johnson’s case warns, that is not the same as “a fact relevant to the [claimants’] right of action”.
(4) If there was a deliberate concealment of a fact (namely the fact that the charges could not be justified), I nonetheless consider that such fact “could with reasonable diligence” have been established long before August 2000. Mr xxx was as able to ascertain that “fact” in the period between 1995 and 2000 when the charges were being debited from his account, as he is now. Indeed I consider that he °could with reasonable diligence” have ascertained that “fact” even before the first charges were ever debited from his account in 1995, because the amount of the proposed charges was published in advance. There crc plenty of consumer organisations whom Mr xxx could have asked to ad\ ise him whether the charges ere excessive (or to ascertain the “fact” that they were, if fact it is), just as there are today various individuals and organisations which now express their views on the matter. The fact that bank charge outrage has surfaced in the public domain only relatively recently does not alter that.
19. Accordingly I do not accept Mr xxx submission that section 32 of the Act operates to prevent the running of time.
Conclusion on Limitation
20. For the reasons explained above I consider that Mr xxx claim, insofar as it relates to charges debited from his account before 3 August 2000 is time barred under the provisions of the Limitation Act 1980.
The interest claim
21. Mr xxx claims interest on all bank charges (after as well as before 2 August
2000) at the rate of 29.8% per annum. He has only been repaid interest calculated at the rate of 8% per annum under Halifax’s voluntary repayment of the post-2 August 2000 charges. Thus he maintains he has an outstanding claim for the balance of the interest which should proceed to a trial. Mr McGee seeks a dismissal of this part of Mr xxx claim.
22. Mr xxx argument is that Halifax could have charged him overdraft interest at 29.8° o: so. he sa s. he should be entitled to claim a similar interest rate under what he describes as a principle of reciprocity, alternatively in the exercise of the court’s discretion under section 69 County Courts Act 1984.
23. I reject Mr xxx submissions. The so-called principle of reciprocity has no application here. To the extent that Halifax may have been entitled to charge Mr xxx interest at 29.8% (or at a rate higher than 8%) that rested on the agreed terms and conditions of the account. This is not a case, I emphasise. where Mr xxx account had ever gone overdrawn and he had been charged interest at such higher rates: Mr xxx accepted that. There is no ground that I can see for awarding Mr xxx interest at a rate higher than 8%, the judgment debt rate which Halifax conceded and which they have already paid.
24. Accordingly. I hold that Mr xxxhas no real prospect of persuading a court to award interest of 29.8% or to exercise its discretion to award interest at more than 8° on the arguments he advances and on the facts of this case. I therefore give summary judgment in favour of halifax on this part of the claim.
25. For the reasons I have given, I dismiss Mr xxx’s claim. The limitation defence succeeds in relation to the pre-2 August 2000 charges. The claim has no real prospect of success in relation to the further interest claimed by Mr xxx.