Why is no one claiming the contractual rate of interest???

[Glenn UK]

Glenn

"As a point of info you are not entitled to the statements under the DPA. You are entitled to know what data they have and this can be supplied in the form of statements but doesn't have to be.

 

If the data is incomplete or is unintelligible then that is a different matter".

 

You are totally wrong here they are holding documents that have been previously sent to you and under the DPA you are entitled to exact copies of those, period. For my edification which section of the act says this?

Right of access to personal data. 7. - (1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled-

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b) if that is the case, to be given by the data controller a description of-

(i) the personal data of which that individual is the data subject,

(ii) the purposes for which they are being or are to be processed, and

(iii) the recipients or classes of recipients to whom they are or may be disclosed,

© to have communicated to him in an intelligible form-

(i) the information constituting any personal data of which that individual is the data subject, and

(ii) any information available to the data controller as to the source of those data, and

if you don't tell people what the law says when they fall flat on their arse as a result it will in part be your fault. It could also be extremely embarrassing not to say costly if it were to happen over legal proceedings.

Now for pete,s sake, talk about hyperreal here, even if I was wrong we are talking about a SAR!!!!!!!!!!! You are advising someone who you have no idea what they will do with your info, you have advised them to threaten to sue and if they decide to follow that through they need to know whether they are entitled to what they ask for don't they?

As to whether it works or not, its an elephant, they supply the info in that format because its convenient, not because they got your letter.

well they need to be reminded that it is not good enough because you cannot fill in the spreadsheet properly because you do not know what o/d you were in at a particular time which is why I suggested sending that letter in the first place And? if they comply with the DPA and the SAR then thats the end of the matter if you don't have the data you asked for they haven't complied and you have grounds for complaint. remind them all you like but its a job and they will do what they have to no more.

As to whether they know the law as well as you do, i sincerely hope they do, because it will make the lives of those who do have a notion of what they are entitled to, a good deal easier.

Firstly this sounds de dicto or perhaps semantic or may be devils advocate?

Leech

 

 

Leech

 

I'm no expert and if i have made a mistake then refer me to the sections of the act you are basing your views on.

 

You post as if these things don't matter because its a SAR.

 

Unfortunately people will act on things posted, quite often without any thought for the knowledge or ability of the original poster. If you someone was to submit a claim for their info and assert that they wanted statements and weren't entitled to them their claim would likely be thrown out. the cost could be nothing other than aggravation.

 

it could also be more.

 

Glenn

[mcuth]

You are totally wrong here they are holding documents that have been previously sent to you and under the DPA you are entitled to exact copies of those, period.

 

Actually, that's not true.

A DPA SAR can request all or any part of the "personal data" that the bank/company/etc. holds on you. Statements aren't actually covered under the DPA though (strange as it may seem). However, it was held in either Durant v FSA or Smith v Lloyds (can't remember which now) that transactional data is covered as "personal data" under the DPA - and the easiest way for the bank to supply that transactional data is in the form of copy statements. They would be well within their rights to simply print out all the transactional data onto sheets of A4 - as long as it was legible and made sense.

 

Cheers

 

Michael

[LEECHTHEBREACH]

Photoman, I have read the info you have kindly sent me. I have found it subsume and very interesting, opening up my holy grail and John Dee will certainly be using it as I am at an impasse with DG solrs. I shall make a resume' shortly.

Ignorantia haud excusat!

Leech

[isidore]

Having read the original question again, the guy says that the bank has not supplied him with information on the interest charged and then asks if he can just charge the contractual rate.

 

This suggests to me that he isn't referring to overdraft interest anyway, but the interest rate (which wouldn't be covered by an SAR anyway I presume)? Could be wrong....

[photoman]

Sorry to be a stickler here guys, and I don't wish this to seem rude (especially as there are some very learned and well respected members involved in this discussion, and also as it really is such an important issue and really DOES need discussing).... but could we please get back onto the topic of this thread ?

Maybe one of you could start a new thread and transfer the posts there (and please do also post a link to it here, as myself and many others really do still want to know the outcome). This would benefit all, the discussion would have a clearer thread of it's own, which would aid people searching for it, and it would also benefit readers of this thread which is already 82 pages long !!

[TANZARELLI]

Tanz I will not rise to the bait, leave it at that.

Photoman I have quickly read through the cases, and as a starter

it seems the main points are : they are formulating there claim for "restitition and for compensation for damages".

The amount of restitution remedy would be equal to the interest which the Claimant could have obtained from the use of the money.

Which surely the cat (or cag!)fits with relation to our claims.

Leech

 

Whatever.

[LEECHTHEBREACH]

Subrogation & Restitution

 

Here goes chaps, this is to back up your claim for compound interest and many thanks for photoman for supplying me with the material to resume' these arguments.

 

The term “restitutional damages”is being used to reflect the remedy which is being awarded where a wrongdoer has obtained a profit at the expense of the Claimant.

Edelman in particular has argued that in such circumstances that the appropriate remedy is properly described as restitutionary, since it restores to the Claimant what the Defendant has gained.

Subrogation is a restitutionary remedy which” transfers rights from one person to another……..by operation of law”.

Since subrogation is a restitutionary remedy this notional assignment of the charge is only effective as against a Defendant who is liable to make restitution to the Claimant.

In the leading case of Banque Financiare’de la Cite’ v Parc (Battersea) Ltd the House of Lords recognised that there are two forms of subrogation that are recognised in English Law . The second one I feel is applicable to this thread.

The award of interest.

Since it is a function of restitutional remedies that the Defendant should be deprived of those gains obtained as a result of being unjustly enriched having committed a wrong, it should follow automatically that whenever pecuniary restitutional remedies are rewarded the Claimant should be awarded interest. This is because immediately the Defendant has

Received a benefit which he/she is liable should pay the Claimant for its use.

Should simple or compound interest be awarded?

Simple interest may be awarded by virtue of s35a of the Supreme Court Act 1981.

Compound interest has traditionally been awarded in equity where money has been obtained or misapplied by a fiduciary President of India v La Pintada Compania Navigation SA. Compound interest is awarded both on the amount of money which is owed by the Defendant to the Claimant and on the amount of interest which is already due to the Claimant.

Lord Goff and Woolf asserted that the policy of the Law of restitution was to remove benefits from the Defendant and that compound interest should be available on all restitutional claims regardless whether they arise at Law or equity.

If the Defendant was to borrow an equivalent amount of money from a financial institution he would be liable to pay compound interest. It follows that the Defendant has saved that amount of money so this is the benefit that the Defendant should restore to the Claimant in addition to the value of the money which the Defendant received in the first place lbid 719 (Lord Woolf) see also Black v Davies 2004

This has now been recognised by the Law Commission which has recommended that there should be a presumption that compound interest is available for awards over £15k or when the Claimant has requested it. see Pre-judgement & interest on debts & damages (Law Com.no.287.2004).

The significance of compound interest on restitutional claims has been recognised by the Court of Appeal in Sempra Metals v IRC [2005] EWCA Civ 389

Leech

[TANZARELLI]

??????????????

[Glenn UK]

The problem with this approach ie Subrogation & resitution, is that it only realises interest at a commercial rate for borrowing the sums concerned.

 

Whilst it is an argument for compound interest it doesnt reflect the contractual rate sadly.

 

The second obstacle to using this approach is demonstrating the banks are a fiduciary to their customers. As much as i beluieve that this may be true, I believe its an argument that has yet to be made and establisehd with any authority.

 

Be good to find some though.

 

Glenn

[isidore]

Unfortunately the document does not allow for copy and paste

PM, I have software to copy and paste text from pdfs. I can transfer this document to a text file for you for future cutting and pasting if you'd like?

[TANZARELLI]

The problem with this approach ie Subrogation & resitution, is that it only realises interest at a commercial rate for borrowing the sums concerned.

 

Whilst it is an argument for compound interest it doesnt reflect the contractual rate sadly.

 

The second obstacle to using this approach is demonstrating the banks are a fiduciary to their customers. As much as i beluieve that this may be true, I believe its an argument that has yet to be made and establisehd with any authority.

 

Be good to find some though.

 

Glenn

 

Glenn see here:

 

In Barclays Bank v. Quincecare Ltd the Court of Appeal set out the following principles: that the relationship between a bank and its customer in relation to the drawing and payment of cheques against the customer’s account balance was that of principal and agent and as an agent the bank owed a fiduciary duty to the customer and prima facie was also bound to exercise reasonable care and skill in carrying out the instructions of its principal' date=' the customer. [/quote']

 

In Westminster Bank Ltd v Hilton (1926) 43 TLR 124' date=' 126 Lord Atkinson explained the relationship in this way: "It is well established that the normal relation between a banker and his customer is that of debtor and creditor, but it is equally well established that [i']quoad[/i] the drawing and payment of the customer's cheques as against money of the customer's in the banker's hands the relation is that of principal and agent. The cheque is an order of the principal's addressed to the agent to pay out of the principal's money in the agent's hands the amount of the cheque to the payee thereof."

 

HTH

 

Tanz

[TANZARELLI]

Glenn also this:

 

The Australian Position

 

 

Since 1848 3 , it has been well established in England and Australia that the banker-customer relationship is that of debtor and creditor and is not, in the absence of special circumstances, fiduciary in nature. In other words, a bank is not generally bound to exercise rights and powers in good faith for the benefit of its customers. Accordingly, for a customer to establish the existence of an ongoing obligation on a bank to advise the customer when the customer would benefit from any new product or service, it would be necessary for the customer to establish that any contract governing the particular banker-customer relationship included a term to that effect. In the absence of special circumstances, and particularly in light of Suriya’s Case, a customer would have little chance of arguing successfully that such a term should be implied.

3House of Lords Decision in Foley v Hill

(1848) 2 HL Cas 28

The Federal Court has ruled 4 that where a bank has created in its customer an expectation that it would advise in the customer’s interests, the bank assumes the responsibilities of a fiduciary. Although a number of cases have recognised the capacity of a bank, through advisory roles of its officers, to assume the responsibilities of a fiduciary, they have generally related to advice in respect of transactions between the customer and third parties, particularly investment transactions. There is limited authority relating to a bank’s duty to advise on the advantages of its own products. The Australian litigation arising from unsuccessful foreign exchange loans in the 1980s provides some guidance about a bank’s responsibilities in advising its customers about its products. A number of forex borrowers have succeeded in actions against their banks for losses caused by changes in foreign exchange rates, but their success usually has been based on common law negligence or misleading and deceptive conduct under section 52 of the Trade Practices Act, rather than a breach of a contractual or fiduciary duty. Although there is clear authority under the law of negligence that a bank giving advice on investments owes a duty of care to the customer, there is also authority that banks generally are not expected to review and update their advice in light of changing circumstances 5

In the absence of an express representation that the bank will provide ongoing advice, a bank would be unlikely to be liable for a failure to provide advice unless the customer can establish that the bank was a fiduciary, having created an expectation that it was acting in the customer’s interests in both providing a forex loan and in managing the risk.

 

Heres the link: http://www.mallesons.com/publication...e/5542560w.htm

 

Tanz

[Glenn UK]

Tanz

 

The second of your postings was my understanding of the current postion, I have seen the preceeding text but havent seen anyhting recent to support the wider view that in making deposits and withdrawing moeny the bank acted as a fiduciary.

 

In truth when arguing that the banks are, it is easy to show, imho that they present themselves as such in all their advertising and literature.

 

I would also add that it would be up to the CLaimant to show they acted in that belief for the courts to consider it.

 

JMHO

 

GLenn

[TANZARELLI]

Tanz

 

The second of your postings was my understanding of the current postion, I have seen the preceeding text but havent seen anyhting recent to support the wider view that in making deposits and withdrawing moeny the bank acted as a fiduciary.

 

In truth when arguing that the banks are, it is easy to show, imho that they present themselves as such in all their advertising and literature.

 

I would also add that it would be up to the CLaimant to show they acted in that belief for the courts to consider it.

 

JMHO

 

GLenn

 

The Nature of Fiduciary Duty

 

Professor Austin Scott, who for many years was the leading American scholar in the field of trust law, wrote in 1949 an important article showing that the fiduciary principle extended far beyond the law of trusts to include many relationships including the duties of agent to principal, attorney to client, guardian to ward, and executor to legatee. As we will see, the fiduciary principle also includes duties of corporate managers to the corporation and its shareholders. Scott defined the term fiduciary to mean “a person who undertakes to act in the interest of another person.”1 In most fiduciary relationships, the fiduciary is given control over some aspect of the life or property of another (the beneficiary) with the expectation that the fiduciary will exercise that control for the benefit of the beneficiary. The salient elements of a fiduciary relationship are “the actual placing of trust and confidence in fact by one party in another and a great disparity of position and influence between the parties to the action.”2

Underlying the fiduciary relationship is the element of trust, which is a necessary condition of social harmony and of the proper functioning of organizations. Indeed, trust can be regarded as a “precontractual” element in all social arrangements. In fiduciary relationships, because of the fiduciary’s position of dominance and control over some aspect of the life or property of the beneficiary, the latter must necessarily trust the fiduciary to give proper consideration to the beneficiary’s interest. The fiduciary relationship thus gives rise to an ethical obligation of loyalty on the part of the fiduciary. This aspect of the moral law is regularly enforced by courts of equity.

The fiduciary principle is of great antiquity. It is clearly reflected in the provisions of the code of Hammurabi (c. 1700 b.c.) that set forth the rules governing the behavior of agents entrusted with property. Virtually every source of primitive law deals with the entrusting of property for safekeeping, pledges of good faith, and other indicia of trust.3 In the Judeo-Christian tradition, the religious roots of the fiduciary principle can be traced to the Old and New Testaments. In the Old Testament, the Lord told Moses that it is a sin not to restore that which is delivered unto a man to keep safely, and penalties must be paid for the violation (Lev. 6:2–5). Other examples include the fraudulent betrayal by Jacob of Isaac’s trust to obtain his father’s blessing (Gen. 27), the requirement to redeem pledges (Ex. 22:26), and prohibitions against unjust weights (Deut. 25:13–16). The New Testament contains a particularly clear example of the fiduciary principle in the parable of the unjust steward (Luke 16:1–8). An employer had accused his steward of wasting his goods and threatened to fire him. Knowing that he might soon be looking for a job, the steward decided to advance his own interest by agreeing with his employer’s debtors (some of whom might later employ the steward) to release them from their obligations to the employer upon payment of a fraction of what they owed. The steward, who was entrusted with the management of his master’s property, thus violated a fiduciary duty by serving his own interest rather than that of his master. Saint Luke states the underlying principle clearly: “No servant can serve two masters” (Luke 16:13). (See also Matthew 6:24, “No man can serve two masters.”) This principle is particularly appropriate, of course, when one of the masters is oneself. It has often been said by the courts that the fiduciary duty of loyalty is based upon the biblical precept that no person can serve two masters.4

 

Heres to link: http://www.acton.org/publicat/m_and_...php?article=16

 

How about this?

 

Tanz

[Glenn UK]

Tanz

 

From My reading the yanks take a wider view than we do, however, I am not saying that banks don dont have a fiduciary duty towards us, on the contrary i am certain they do.

 

However, all the case law i have seen for the UK has been regarding cheques i think and are quite old.

 

That doesn't mean they're irrelevant but i don't think it makes our claim watertight.

 

I think that their representations to the claimant plus their power in the current economic climate over customers will be overriding factors, but like most things without something specific to state it will come down to how the arguments are made.

 

So i don't mean to be negative i have searched reasonably hard for something of equivalence to your American text and don't think i have.

 

Edit i posted this a while back

 

Glenn

[newbody]

fiduciary: Definition and Much More from Answers.com

 

Legal Encyclopedia

Library > Legal > Legal Encyclopedia

This entry contains information applicable to United States law only.

Fiduciary

An individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another's benefit.

 

A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual's judgment or general trust in his or her character is ordinarily insufficient for the creation of a fiduciary relationship. The duties of a fiduciary include loyalty and reasonable care of the assets within custody. All of the fiduciary's actions are performed for the advantage of the beneficiary.

Courts have neither defined the particular circumstances of fiduciary relationships nor set any limitations on circumstances from which such an alliance may arise. Certain relationships are, however, universally regarded as fiduciary. The term embraces legal relationships such as those between attorney and client, broker and principal, principal and agent, trustee and beneficiary, and executors or administrators and the heirs of a decedent's estate.

A fiduciary relationship extends to every possible case in which one side places confidence in the other and such confidence is accepted; this causes dependence by the one individual and influence by the other. Blood relation alone does not automatically bring about a fiduciary relationship. A fiduciary relationship does not necessarily arise between parents and children or brothers and sisters.

The courts stringently examine transactions between people involved in fiduciary relationships toward one another. Particular scrutiny is placed upon any transaction by which a dominant individual obtains any advantage or profit at the expense of the party under his or her influence. Such transaction, in which undue influence of the fiduciary can be established, is void.

 

Real Estate Terms

Library > Business > Real Estate Terms

Fiduciary One who acts, in a legal role, in the best interests of others.

Examples:

• A Broker is a fiduciary for the seller.

• A banker is a fiduciary for the bank's depositors.

• An attorney may be a fiduciary for the client.

• A Trustee is a fiduciary for the Beneficiaries.

[TideTurner]

From recent quotes: -

 

Professor Austin Scott, who for many years was the leading American scholar in the field of trust law, wrote in 1949

‘Indeed, trust can be regarded as a “precontractual” element in all social arrangements’.

Indeed, trust has been in all contractual elements where a person or persons have been led to believe that what they were signing up for is true.

It has often been said by the courts that the fiduciary duty of loyalty is based upon the biblical precept that no person can serve two masters

Why then, do Board members or contractors serve several masters?

 

My original statements were provided in dollars, which shows an immediate concealement. Where any information was transferred outside of the EC without your knowledge is unlawful under the DPA 1998.

 

Tide

[photoman]

With regards the arguments about a Banks Fiduciary role, it appears that most references and postings here are more applicable to the American system. It appears that American (and some other countries) legal systems do have a view that they do indeed act as Fiduciaries. However, I’m not sure if the English legal system takes the same view?

After reading around I found the following reference made in a particular case in 2004:

"That there is no fiduciary relationship between a banker and customer was established by Foley v Hill (1848) 2 HL.Cas 28"

I have not read the actual case, in order to see in what context this applies to ie; only with regards certain matters, or generally. So, whether or not this is an accepted established principle to date in English law, or has been overtuned needs to be looked into, and I would welcome any comments or findings by anyone on site as to whether or not this is the case.

So at present, in the absence of finding more recent cases that reverse this principle, if we presume that relying on the Fiduciary argument is difficult to prove, we may be better using the "duty of care" and "special relationship" argument as laid out here:

 

 

In White v Jones [1995] 2 AC 207 at 274 F Lord Browne-Wilkinson said;

"I am not purporting to give any comprehensive statement of this aspect of the law. The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable

.

However, such

a duty of care

will

arise if there is a special relationship between the parties

. Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified, viz. (1) where there is a fiduciary relationship and (2)

where the defendant has

voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice

. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon. In the words of Lord Reid in Hedley Byrne

[1964] AC 465

, 486 he has "accepted a relationship . . . which requires him to exercise such care as the circumstances require," i.e. although the extent of the duty will vary from category to category,

some

duty of care arises from the special relationship. Such relationship can arise even though the defendant has acted in the plaintiff's affairs pursuant to a contract with a third party."

I think however this may be more (but not exclusively) applicable to specific circumstances when we call upon their advice for example when looking for a loan, Insurance, Mortgage or indeed PPI. (and according to the last paragraph of the quote, this also applies to reccomending a third party)

Whether or not we can argue that they owe us a duty of care generally, and how this can also be applied to charges is something we need to determine, and formulate our arguments for? I offer this as one possible argument:

They claim that these are charges for a service, and as such we trust their claim that they have provided that service at the correct price. Thus we relied on their advice in the letters sent to us that the charges were fair and proper. Certainly with Lloyds on the statements the charges do also often carry the description "Charge as advised"

[photoman]

for some odd reason a smilie has appeared in my last posting instead of a number 8 ??? Tried to edit it out and it won't ? so replace the smilie with a number 8.

[Glenn UK]

http://www.consumeractiongroup.co.uk/forum/general/64487-banks-fiduciaries-their-customers.html

 

This case is from 1926 so its later than yours at 1848 I think.

 

Alhtough it refers to cheque related matters i think.

 

Having said that you are going in the same direction i have been in the absence of any supporitng case law to establish the fiduciary relationship.

 

Glenn

[TideTurner]

Gents,

 

Can we focus on English Law and get back to the subject. This is extremely interesting but perhaps needs its own thread.

 

I am itching to make points about info being processed outside of the EC which I believe has been happening since the late eighties. I have evidence to this effect, but we're not helping others if we don't keep it readable.

 

PS What's the thread?

 

Tide

 

PPS Tell me to FAQQ off if necessary

[BigFatGreedyBanker]

O.K, to get back on subject then guys: What do you feel after 1647 posts is the strongest argument for contractual interest?

 

A list of the top few in order would be good.

 

Thanks.

[BigFatGreedyBanker]

Also, why are they the strongest and what arguments could be used against them. Have any been proven / won in court yet?

[Glenn UK]

FWIW

 

The issue of the bank/cstomer relatioship is ON SUBJECT, just becuase we dont mention the words contractual interest its key componenet inthe arguments.

 

Glenn

[photoman]

FWIW

 

The issue of the bank/cstomer relatioship is ON SUBJECT, just becuase we dont mention the words contractual interest its key componenet inthe arguments.

 

Glenn

Agreed

IMHO, Where I see this line of discussion going is; If we can establish either a Fiduciary relationship or duty of care then it establishes mutual Contractual obligations, which strengthens our argument for Contactual interest.