there were difference with mbna and hsbc , I think mbna were on dodgy ground from the outset due to the way it was laid out, and they paid out without much fight.

I'm just glad its finished now, as it was getting me down.

Had the hearing today at court. they turned up with a solicitor, counsel and witnesses. should have started at 10am but ended up 11.40 before we went in.

for 2 hours it was mainly the their argument for striking out due to limitations act, then it went on to my witness statement and them asking me questions and catching me out with diffeneces on what I said in POCs/ witness statement and the evidence. I had used certain items in my POCs which got kicked out staright away like FSA handbook and consumer credit act, so ended up just being a misrepresentaion case. I had relied on clauses from other POCs which I didn't really understand, and they blew them appart.

Then the judge called lunch for 1 hour. On return the judge said that she had been reading everything again, and ruled against me due to lack of evidence for a misrepresentation case. they tried to claim their costs by saying I had acted unreasonable by bringing the claim against them, but she ruled against that.

so that is than, lost, but no (further) costs.

I would advise anyone thinking of going the court route, to think carfully and be 100% sure that you have a good case. Mine in hindsight was weak. I kept going think (dut to others on here) thinking they they would settle before the hearing, and it would cost them too much to defend etc, but as is now been proved they have unlimited resources, and they are not bothered about what it costs them. They will fight you all they way. Maybe this is just hsbc, as MBNA paid me out before court.

Can you post up all the directions please. Hard to tell out of context.

before deputy district judge xxxxx sitting at Preston County Court etc

 

upon hearing the claimant in person and counsel for the defendant

 

and upon reading the file of papers, the defendant having failed to comply with directions on 18th Jan and the skeleton argument was only received today.

 

it is ordered that

 

1. application adjourned to 11th July 2011

 

2. Unless the defendant shall by 4pm 27th June 2011 file and serve a witness statement exhibiting such documents as provided for in the order of 18th jan 2011, the defence shall be and is by this order stuck out.

 

3. costs in the application.

only hsbc are being unreasonable in their conduct for this case.

one of the judges directions is "costs in the application"

what does this mean?

the bit i am little confused on: (with respect to the limitations act) is it a mistake or misrepresentation or both?

is it bound to fail as they say?

this is their argument:

DEFENDANT'S SKELETON ARGUMENT

FOR HEARING ON 13 JUNE 2011

 

Suggested pre-reading (15 mins):

• Statements of case
  
• Witness statement of Daniel Chumbley in support of D 's application
  
• Witness statement of C in opposition to D's application
  

 

Introduction

1. This is D's skeleton argument for its application (dated 15 March 2011) for

C's claim to be struck out or for summary judgment.

 

2. In summary, C has no reasonable grounds for bringing the claim because it is

statute barred. The claim relates to a payment protection insurance (PPI')

Policy that C held in respect of a loan that was both entered into and repaid

more than six years before these proceedings were issued (2 June 2010).

 

C's claim

3. C has held two fixed sum credit agreements with D:

3.1. A loan entered into on 12 April 2001 and repaid in full on 19

December 2001 ('the First Loan').

moose v HSBC

3.2. A loan entered into on 19 December 2001 and repaid in full on 23

June 2004 ('the Second Loan,).

 

4. C entered into a PPI policy in respect of the First Loan, but not the Second

Loan.

 

5. The principal allegation in C's claim is that he was told that the PPI policy in

respect of the First Loan was 'absolutely necessary in order to proceed to

obtain the associated credit' when it was not. Although the particulars

include other allegations, his core claim is for damages for misrepresentation.

 

6. It is D's case that C would have been made aware at the time that the PPI

policy was optional and not a requirement for the loan.

 

C's claim is bound to fail

 

7. The limitation act 1980 provides:

 

2 Time limit for actions founded on tort

An action founded on tort shall not be brought after the

expiration of six years from the date on which the cause of

action accrued. ..

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought

after the expiration of six years from the date on which the

cause of action accrued.

 

8. The limitation period applicable to an ordinary misrepresentation claim is

accordingly six years after the cause of action accrued. This would have been

when the representation had been made and C entered into the PPI agreement.

 

9. The cause of action therefore accrued on 12 April 2001.

C appears to accept that, under the usual time limits, his claim would be

statute barred. He instead relies upon the postponement of the limitation

period under s.32 of the Limitation Act 1980 on the grounds of alleged

concealment.' This section provides:

32 Postponement of limitation period in case offraud,

concealment or mistake

(1) Subject to [subsections (3) and (4A)] below, where in

the case of any action for which a period of limitation is

prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant;

or

(b) any fact relevant to the plaintiff'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

plaintiff has discovered the fraud, concealment or mistake

(as the case may be) or could with reasonable diligence

have discovered it.

References in this subsection to the defendant include

references to the defendant's agent and to any person

through whom the defendant claims and his agent.

(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.

 

10. C's claim does not fall within this section. Even assuming, for the purposes of

this application, that D's agent did tell C that he was required to take out the

PPI Policy, there was no further concealment by D. C could, with reasonable

diligence, have determined, from the documents that were provided to him

when he took out the PPI Policy, that that policy was optional:

10.1. He signed a 'creditor protection declaration' which provided that

I have decided to take loan protection.

I have received a copy of the loan protection policy

document.

I am aware of the eligibility criteria, terms and

conditions and exclusions applicable to the policy.

 

10.2. The credit agreement itself provided: 'I/We have decided to take

Personal Loan Protection'

10.3. The

terms and conditions

ofthe PPI Policy made clear that he

could terminate the Policy within 30 days of opening it, without the

loan also being cancelled. The introduction provided:

If you decide you do not want this protection,

please return this policy document to your HSBC

Bank within 30 days of receiving it. If you have not

made a claim during those 30 days, we will cancel

the cover and refund any premium you have paid.

 

11. Further or alternatively, at the very latest, C could have determined that the

PPI policy in respect of the First Loan was optional when he entered into the

Second Loan agreement (19 December 2001), which was still over six years

before he issued this claim. He did not enter into a PPI agreement in respect of

this loan.

 

12. It is further to be noted that in his witness statement C does not put forward

any case as to when he could, with reasonable diligence, have discovered the

alleged misrepresentation.

 

Conclusion

13. C's claim was issued over six years after the accrual of cause of action he now relies. The limitation period has not been postponed. The claim is therefore

statute barred and should be struck out.

Do you mean the Banks Challenge against the FSA, which they lost ?

 

If so, I have a link somewhere.. I will go and find it for you.

yes

what was the recent high court case that has been in the media where the banks are now having to pay back ppi? any links for this?

Nothing, they are fighting all the way

just had a letter this morning with their costs of 7k that they say they will recover if they win. Can they do this?

they have also sent 3 past cases in high court about failed mis selling claims, all about misrepresentation.

these are:

black horse ltd v david and caroline speak

barry robinson soulsby v firstplus financial group

observations by judge waksman qc in Manchester county court

HELP!!

yep small claims as was for 3k, but HSBC were trying to claim their costs from me.

Court monday for the main hearing.

Update - Witness statement received from HSBC today. This was signed by an employee of hsbc who worked in my branch at the time of the loan was taken out, but now works at a different branch. Thing is that it didn't happen at that branch but at a branch near where I worked!

anyway, court date is end of july, and I think there is no way they will settle before court, they will be fighting this all the way, so a word of warning to others fighting against HSBC, they are no push overs, and be prepared to go all the way with them. In hindsight, I wouldn't have done this if I knew how much work and money it was going to cost me, and I only took it on after mbna paid out so easily on a different loan.

Also-did you provide any supporting case law in support of limitation -for example the judgement from Kleinwort Benson v Lincoln City Council ?

this was in my witness statement, but they missed the deadline with theirs, so they applied to strike out my claim instead, which the court heard yesterday. so the above case didn't get raised.

The costs are broken down @ £100 per hour for their timeplus letters and phone calls at 10 each.most of the costs were for the striking out.They had applied for judge to order these, but this was declined.

another letter received today from HSBC, a schedule listing their costs which they are claiming from me at £2500.00, and this is meant to be small claims court?

Went to court today for the hearing to decide if to strike out my claim, just about to walk in and was approached by HSBC legal man and he asked if I had received their Skeleton Argument? I hadn't so he gave me a copy, excellent, no time to read it and in we go..

This was it:

DEFENDANT'S SKELETON ARGUMENT

FOR HEARING ON 13 JUNE 2011

 

Suggested pre-reading (15 mins):

• Statements of case
  
• Witness statement of Daniel Chumbley in support of D 's application
  
• Witness statement of C in opposition to D's application
  

 

Introduction

1. This is D's skeleton argument for its application (dated 15 March 2011) for

C's claim to be struck out or for summary judgment.

 

2. In summary, C has no reasonable grounds for bringing the claim because it is

statute barred. The claim relates to a payment protection insurance (PPI')

Policy that C held in respect of a loan that was both entered into and repaid

more than six years before these proceedings were issued (2 June 2010).

 

C's claim

3. C has held two fixed sum credit agreements with D:

3.1. A loan entered into on 12 April 2001 and repaid in full on 19

December 2001 ('the First Loan').

moose v HSBC

3.2. A loan entered into on 19 December 2001 and repaid in full on 23

June 2004 ('the Second Loan,).

 

4. C entered into a PPI policy in respect of the First Loan, but not the Second

Loan.

 

5. The principal allegation in C's claim is that he was told that the PPI policy in

respect of the First Loan was 'absolutely necessary in order to proceed to

obtain the associated credit' when it was not. Although the particulars

include other allegations, his core claim is for damages for misrepresentation.

 

6. It is D's case that C would have been made aware at the time that the PPI

policy was optional and not a requirement for the loan.

 

C's claim is bound to fail

 

7. The Limitation Act 1980 provides:

 

2 Time limit for actions founded on tort

An action founded on tort shall not be brought after the

expiration of six years from the date on which the cause of

action accrued. ..

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought

after the expiration of six years from the date on which the

cause of action accrued.

 

8. The limitation period applicable to an ordinary misrepresentation claim is

accordingly six years after the cause of action accrued. This would have been

when the representation had been made and C entered into the PPI agreement.

 

9. The cause of action therefore accrued on 12 April 2001.

C appears to accept that, under the usual time limits, his claim would be

statute barred. He instead relies upon the postponement of the limitation

period under s.32 of the Limitation Act 1980 on the grounds of alleged

concealment.' This section provides:

32 Postponement of limitation period in case offraud,

concealment or mistake

(1) Subject to [subsections (3) and (4A)] below, where in

the case of any action for which a period of limitation is

prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant;

or

(b) any fact relevant to the plaintiff'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

plaintiff has discovered the fraud, concealment or mistake

(as the case may be) or could with reasonable diligence

have discovered it.

References in this subsection to the defendant include

references to the defendant's agent and to any person

through whom the defendant claims and his agent.

(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.

 

10. C's claim does not fall within this section. Even assuming, for the purposes of

this application, that D's agent did tell C that he was required to take out the

PPI Policy, there was no further concealment by D. C could, with reasonable

diligence, have determined, from the documents that were provided to him

when he took out the PPI Policy, that that policy was optional:

10.1. He signed a 'creditor protection declaration' which provided that

I have decided to take loan protection.

I have received a copy of the loan protection policy

document.

I am aware of the eligibility criteria, terms and

conditions and exclusions applicable to the policy.

 

10.2. The credit agreement itself provided: 'I/We have decided to take

Personal Loan Protection'

10.3. The terms and conditions ofthe PPI Policy made clear that he

could terminate the Policy within 30 days of opening it, without the

loan also being cancelled. The introduction provided:

If you decide you do not want this protection,

please return this policy document to your HSBC

Bank within 30 days of receiving it. If you have not

made a claim during those 30 days, we will cancel

the cover and refund any premium you have paid.

 

11. Further or alternatively, at the very latest, C could have determined that the

PPI policy in respect of the First Loan was optional when he entered into the

Second Loan agreement (19 December 2001), which was still over six years

before he issued this claim. He did not enter into a PPI agreement in respect of

this loan.

 

12. It is further to be noted that in his witness statement C does not put forward

any case as to when he could, with reasonable diligence, have discovered the

alleged misrepresentation.

 

Conclusion

13. C's claim was issued over six years after the accrual of cause of action he now relies. The limitation period has not been postponed. The claim is therefore

statute barred and should be struck out.

quick update, going to court on Monday on the limitation act bit.

see if they turn up this time.....

update -

Received an appliaction for the case to be struck out from the court with their witness statement attached. (Note they missed the courts deadline for submitting the witness statement).

No response to the letter I sent to the court.

Rang the court and they didn't really say much.

There is now a hearing for this bit in June.

The want it struck off due to limitations act and all their costs to be PAID BY ME. WTF?

I think its out of order that the bank/solicitor can act like this and get away with it.

I have a bad feeling about this.

Thank you

These were in my witness statement

Yep at 8%

Just over £3k

I Really do need some good advice on this now:

I have today received from hSBC their witness statement and an application from them to have my claim struck out due to limitations act. This has been sent AFTER the courts deadline of the 15th for having the witness statements in. I bet this is a result of them receiving mine which I sent them on 14th.

They have dated theirs 1st march, and the application form the 15th, yet the post mark on the evelope is 16th! and the courts direct say all parties have to receive this before 4pm 15th march.

they have also asked for thier costs in the application.

what is going on?

Spoke to the court and they havn't submitted a witness statement or supporting documents to be relied on in court as per the judges orders. I asked what to do now, and the court said to write in to the court.

So I have asked for thier defence to be striked out due to them not following directions. (not just this one either).

See what happens now....

witness statement deadline was 4pm today and didn't receive anything from HSBC, so they have not complied with the courts directions. I will check with the court tomorow to see if they received anything. What now? can I apply to the court for any action? or will they throw out the defence? what happens?