Oft Test Case - Next Important Date?

[sparks199]

yes thanks caro . but it doesnt help my case with LLoyds tsb

[noomill060]

Guys, Barclaycard have made me an offer on PPI charges and contractual interest going back 9 years- I used the "LA s.32 mistake, concealment, fraud" logic in my POCs.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/168312-morgan-stanley-cca-received-4.html

[Mr lex]

Just a quick reminder.

 

Remember, you need to get your claims to court.

 

When you started to send off your letters, they will probably have tried to tell you you can't claim because the case's are 'stayed' It is important that you ignore this and carry on, only the courts can put a 'stay' on your claim.

 

Although the banks have this ongoing test case with OFT there are a number of reasons why you should start to claim at court now if you have not already done so.

 

Any older charges (coming up to 6 years) could be lost if you wait for the OFT case to end. Start your claim now and those charges are protected. although the FSA have said :-

 

Are worried about your complaint being time-barred

 

We have protected your rights by making it a condition of the waiver that complaints will not be time-barred. In effect, the clock stopped on 27 July 2007. For example, if you are applying to reclaim charges for the last six years and the waiver was in place for two years, those two years would not count.

 

Once your claim is at court, those charges really are safe.

 

When the stays are finally lifted, you will be one of the first in the queue to get paid and you will get the 8% interest.

 

This is really important

 

While the banks are protected by the stays, we the consumer, have no such protection and charges continue to mount up.

 

For some people this may mean going into default. If it is clear that the default was made in respect of charges and that it was lodged after a charges claim was begun then these users have a really excellent chance of having it removed.

 

Lex

[beachcomber60]

Just starting a reclaim, as a hardship case.

 

If I read it right I cannot reclaim for charges after the clock stopped, is this correct?

[johnny131070]

Sorry to hijack the thread but my charges (around 3k Natwest) started accumulating in sept 03. How does this ruling affect me?

[Bookworm]

Just starting a reclaim, as a hardship case.

 

If I read it right I cannot reclaim for charges after the clock stopped, is this correct?

What do you mean by "the clock stopped"? The stay of cases or over 6 years old charges?

[beachcomber60]

Hi BW,

 

Ref: the clocked stopped ticking 27th July 2007, not sure what this means.

 

Bulk of charges were applied from Jan. '08.

[Bookworm]

Then claim the lot, "the clock stopped" refers to the limitations act, so that if some charges were going over the 6 years limit, they would still be claimable when the claims resume is what it means.

 

Go for it.

[brown1950]

From BBC Wedsite today :-New NatWest bank charges ruling

 

 

By Ian Pollock

Personal finance reporter, BBC News

 

Mr Justice Smith ruled against NatWest on one point only

 

 

Some customers of the NatWest bank may have a new opportunity to reclaim their bank overdraft charges.

A High Court judge has ruled that the bank's terms and conditions, used from 2001 to July 2003, may have included unfair penalties for going overdrawn.

The ruling by Mr Justice Andrew Smith is one of a several in the long running test case on bank charges.

Most overdraft claims in county courts have been halted since July 2007 while the High Court resolves the issue.

"The court found that a single historic NatWest term prohibited customers from using a card to go overdrawn but this does not mean that that term is a penalty," said a NatWest spokesman.

New cases?

The consumers' organisation Which? said in theory some NatWest customers could now ask their courts to reopen their claims, but warned it would not be plain sailing.

"Firstly, the judge this week only said Natwest's 2001 charges may be penalties, not that they are penalties," said Which? lawyer, Chris Warner.

"This means the customer would need to show that the charges were actually penalties by proving that the charge did not reflect the bank's costs.

"Also, as the issue of charges reflecting the cost to the bank is part of the OFT's ongoing fairness assessment, Natwest may be able to convince the court to stay any cases brought against it until the OFT's investigation is complete," he added.

Marc Gander, of the Consumer Action Group (CAG), said some of his members were now thinking of returning to court, after being charged under the NatWest's 2001 conditions.

"It affects personal and business customers, but only for a limited period of time," he said.

"The bigger question is whether the contracts will be subject to the consumer contract regulations."

The ruling

The banking industry and the Office of Fair Trading (OFT) are waiting for the Appeal Court to hand down its judgement on a bank appeal against an earlier ruling by Mr Justice Smith.

I therefore remain unpersuaded that the relevant term in the NatWest 2001 conditions is not capable of being penal

 

 

Mr Justice Andrew Smith

 

 

Last year he dealt a blow to the right of banks to levy high overdraft charges when he decided that the 1999 regulations, regarding unfair terms in consumer contracts, gave the OFT the right to scrutinise those charges.

This week's judgement by Mr Justice Smith was one of three residual decisions, made on whether or not charges levied under old or "historic" terms and conditions could also be penalties under common law, and therefore not recoverable.

Last October he cleared most of the old contracts used by seven banks and the Nationwide building society, who are the parties to the test case with the OFT.

However he needed more time to consider some of the terms and conditions used in the past by the Abbey, Lloyds TSB and RBS NatWest.

This week he gave the first two of those banks the rulings they had been seeking; that their former current account conditions did not fall foul of common law.

But he found against the NatWest.

"I still consider the relevant term in the NatWest 2001 conditions to be contractual and to impose a contractual prohibition on the customer," said the judge.

"I therefore remain unpersuaded that the relevant term in the NatWest 2001 conditions is not capable of being penal," he added.

Common law

The significance of the judge's decision is that if a clause in a contract imposes an obligation not to do something - such as not going overdrawn on a current account without permission - then any money charged for breaking that condition must not be more than is actually necessary to compensate the bank.

That is because under common law it is illegal for any penalty charges or fees, imposed by a business, to be excessive.

Campaigners have argued that typically it does not cost a bank more than about £2 to tell someone they have gone overdrawn and to repay their unauthorised borrowing.

In contrast, bank charges have sometimes been more than £30 each time a customer has gone into the red or had a cheque bounced.

"The OFT and RBS group are considering their positions pending finalisation of the order," said an OFT spokeswoman.

This means either side could appeal, which might delay any attempt to start a case in the county courts.

And this week the Financial Services Authority (FSA) gave the banks another six months in which they could park any claims for the return of bank charges. "The fact that the FSA's waiver, which has just been extended by another six months, is still in place with the exception of financial hardship cases and it could be very difficult for anyone to make a successful claim at this stage," said Chris Warner of Which?

[photoman]

Sorry, LA 1980 = Limitations Act 1980, which lays the 6 yrs limit you're familiar with.

 

s.32 allows for statute barred not to apply if it is for the relief of the consequence of fraud, concealment or mistake.

 

Anyone wanting to argue the charges shouldn't be statute barred will have to convince a judge that the banks either deliberately defrauded us when they charged us (I wouldn't even want to try to make that one fly), deliberately concealed the nature of the charges (unlikely to succeed as Smith J has handed them the non-penalty on a platter) or the mistake argument, and I believe that the argument you would then use would be that you paid the charges mistakenly believing that the banks were in the right to levy them.

 

BF did indeed encourage people to go back beyond 6 yrs, and may still be doing it, but I am more cautious. Having said that, I wouldn't have started CAG and he did, so there's something to be said for his methods.

 

If there is a school that thinks it's not much of a problem, I'd love to read about it and what makes them think so, it certainly would be great if that were the case.

 

Bookie,

 

I've been musing this limitations issue over, and had the following thought.

 

Would appreciate yours (and anyone else's) views on this?

 

If Justice Smith has declared he feels that NatWest charges from the period 2001-2003 could make the charges amount to penalties at common law... then, in such case, it could be argued that around 2004 NatWest made a change to their T&C's.... why..... well, to conceal the fact that they were penalties of course !

 

Hence, the 6 year bar to limitation falls away, as ANY act of concealment is sufficient to do so. And this then means that a claimant can submit a claim and ask for ALL charges in perpetuity to be looked at.

 

Did Justice Smith only look back as far as 2001 in all the banks cases (ie: 6 years back from when the test case started)?

 

If so, then there is also the possibility that even earlier charges (certainly in NatWests case anyhow) would also be similar, and so would be deemed as amounting to penalties.

 

Thoughts anyone ??

 

PM

[barry_2008]

So fraud not theft

[Bookworm]

If Justice Smith has declared he feels that NatWest charges from the period 2001-2003 could make the charges amount to penalties at common law... then, in such case, it could be argued that around 2004 NatWest made a change to their T&C's.... why..... well, to conceal the fact that they were penalties of course !

Not necessarily... They could simply have altered the T&Cs without realising that the change of a few words here and there made the difference between a penalty and not a penalty... Your hypothesis implies deliberate intent which would be really hard to prove, IMO. I still think "relief of mistake" would be an easier route, and the consequences are the same.

 

And this then means that a claimant can submit a claim and ask for ALL charges in perpetuity to be looked at.

Which is all well and good, but unless you're one of the anally retentive ones who has kept all his statements from the day they opened their account, it won't help much, since the banks will say they only keep the info for 6 yrs.

 

Did Justice Smith only look back as far as 2001 in all the banks cases (ie: 6 years back from when the test case started)?

Not sure, but I think so, yes.

 

If so, then there is also the possibility that even earlier charges (certainly in NatWests case anyhow) would also be similar, and so would be deemed as amounting to penalties.

"could", not "would". You'd still have to convince the judge on the penalty argument, but yes, it is fairly likely that previous T&Cs would be on the model of the 2001-2003 ones, and the more definite changes appears mid-2003. But again, proving it is going to be an uphill struggle and I can't see the banks falling over to assist somehow.

[barry_2008]

Although I give you credit for responding bookie.

Defending the guilty is the work of QC's.

 

Sorry about that money i took from your hand bag it felt like your pocket i had my hand in. I wasnt reaching for the money any how just the money felt more atractive at the time.

 

Im talking bout the mentality of the bankers.

[Bookworm]

I'm not defending the guilty, Barry, I am trying to foresee the pitfalls. ;-)

 

If you go to court claiming fraud, you need to be able to prove fraud.

If you go to court claiming deliberate concealment, you need to be able to prove deliberate concealment.

If you go to court claiming relief of mistake, well, everyone can make mistakes and a judge might be able to be swayed by that if you can show that. More importantly, you might be able to convince the judge that they did make a mistake, maybe realised it and changed their T&Cs to comply with the law so that the charges wouldn't be a penalty anymore (and try to keep a straight face when saying that) which would put the bank in the unenviable position to try and explain why they changed their T&Cs if they are so sure they weren't penalties in the first place.

[barry_2008]

Lloyds said I was using the banks own funds to pay my direct debit which they had infact never done.

 

They never sent a credit agreement for that transaction.

 

oh and i guess i loose out on the whip then

[photoman]

So fraud not theft

 

 

NO.... Concealment !!

 

Fraud is a VERY serious allegation to make, and also near on impossible to prove.

 

But, the fact that the T&C's were obviously changed (after some deliberation on their part) could quite easily be claimed to indicative that they amended them around 2003/4 in order to conceal something?

ie: They realised at some point in 2003 or 2004, that their t&c's meant that such charges were actually being levied for breaches of contract, and were thus contrary to law. So they quickly changed them.

 

From the Statute of limitations:

 

 

32 Postponement of limitation period in case of fraud, 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..

 

So.... We have only just discovered this fact today, and so NatWest claimants now have 6 years FROM TODAY in which to act upon such charges.

 

 

It must be noted though, that this new cause of action only applies to NatWest claimants, who have had accounts that incurred charges at some point between 2001 and 2003.

It would also only help with regards claiming under common law (penalties) for charges incurred from 2003 and backwards, as any charges applied since 2004 have already been ruled out as not being penalties for breach of contract.

 

So theoretically, in the first instance, one could bring a claim under common law, and keep it just to those charges incurred between 2001 and upto their change of T&C's in 2003/2004.

 

However, the other important fact to remember, is that the SOL is a forward acting mechanism.

It does not specify any bar for any such pleas brought under sec32 as to how far back one can then also go.

So, even if the cause of action (a charge that could be deemed as a penalty under their T&C's) happened in 1980, but you've only just discovered it today (the realisation that concealment has since happened), then you now also have 6 years from today in which to act upon those too.

So, if you manage to get hold of some T&C's prior to 2001, and can clearly see that these could be seen to be of a similar manner to those of 2001-2003 considered by Judge Smith, you could maybe also claim for charges incurred during those earlier periods too.

This could then go way back, and if the T&Cs are similar, certainly as far back as 1980 which was when the SOL came into force.

 

PM

[photoman]

Bookie,

 

Just to note to say that I was composing my own message directly after Barry's post, so it did not see and take on board your own posts, and fair comments.

I still think there is some possible mileage in the "concealment" approach though ?

 

PM

 

PM

[photoman]

Bookie,

In light of your comments regards using mistake, then one could use the same arguments and approach as I have stated citing mistake instead or in the the alternative.

 

PM

[barry_2008]

The harsh aproach is because they wouldnt hesitate to send out doorstep debt collection "agencys" (to use the polite term) If we fell in default.

 

Lloyds are threatning such action even no the account is in dispute so not so dificult to prove.

[barry_2008]

The mental component of criminal liability. To be guilty of most crimes, a defendant must have committed the criminal act (the actus reus) in a certain mental state (the mens rea). The mens rea of robbery, for example, is the intent to permanently deprive the owner of his property.

 

Could a lack of intent through lack of terms qualify as the mens rea. And the actually debiting the money to the account and using standard industry practices without incorperating them into the tocs be the actus reus?

[barry_2008]

Reasonable grounds to furnish customer with new tocs.

 

It could be argued that a bank in this day and age has the facilitys to furnish the customer with a new copy of tocs. At the verry least inform the customer that the tocs have changed and point them in the right direction.

 

Problems with this is that if you dissagree with the new tocs what do you do because shutting down an account after its been open for 6 months is not easy.

[barry_2008]

Can they provide a detailed account on when they actually levied the money when they could of but did not.

 

At any time within the recovery process weas there manual intervention on the account?

 

At any time during the recovery process was there any talk of the tocs?

 

At any times during the recovery process were there any talk that the account holder has not on any ocasion releavent paid back money allegedly in control of the bank?

 

At any time were there any notes taken were there any records taken at all of the transaction through the account or otherwise. If this was the case why wasnt it released within the Data protection request?

 

At what point through the process dose the bank record any such intervention on the account?

 

Is the entire proces automated?

[barry_2008]

This is what A fairly worded letter from a bank in my opinioon should sound like in my opinion.

 

 

Balance -£67

 

Dear sirs.

 

We would like to draw your attention to the above balance which clealry states the total amount that is due to us Within the present terms and conditons of our service.

 

We would idealy like this amount paid to us in full as the current status of youre account is unaceptable as stated in regulation 1.1 of our charges leaflet.

 

Should the lack of payment be a reason of hardship our customer service team is always available in serviced high street branches or a phone call away on (insert number).

 

Our primary goal is to offer the best possible banking service you rightly expect from us. We appologise for any distress this may have caused to you and would like to thank you for your co-operation in this matter.

 

If this sittuation is not brung to a sactifactory conclusion within 14 days we shall within term 1.2 of our TOC's apply an overdraft fee to your account.

 

Yours

Customer Service Department

The Named Bank

[photoman]

Barry,

 

All interesting stuff, and I'm sure all many in agreement, but it's taking this thread somewhat off topic.

Do you have a thread of your own, or could you start one along the lines you are talking?

 

regards

 

PM

[barry_2008]

actus reus

Criminal negligence - the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable person, in the same circumstances, would have foreseen those consequences

 

You have to ask who the reasonable person is in this instance. Who defends the bank?