Pushing the 6+ year claim to court

[Shanks]

Hi all,

 

Well for better or worse I have decided to push the Statute of Limitations question to court. I can see only three options for a conclusion and they all have a benefit in one way or another:

 

a) The bank give up and pay out before it gets to court – so, I get my money back :grin: but we don't really learn anything apart from there is a hesitancy to fight this at the moment

 

b) they push it to court and I lose - well, in this case I had put the money down as lost anyway but at least we will either learn how to win the next time or know it's not worth the fight

 

c) they push it to court and I win - then I get the money back :grin: and we have learnt that at least in some cases it can be worth pushing for that bit extra.:grin:

 

As for my claim, the total claim is for +/-£2800 in charges with about +/- £1500 in interest. I have been down the route of all the prelim letters and lbas. They have stated my account will be closed at the end of the month and have offered to pay the charges for the last 6 years at the time of closure. I reminded them of the process I had outlined in my earlier letters and said that they had left me no other viable alternative to attempt to recover the full amount via the courts.

 

With hindsight perhaps I should have accepted their final offer and then gone on to claim the older figures. But tbh the substantial majority of the charges were made pre-2000 and for the reasons made at the top of this post, if I am going to challenge this then I figured I might as well just get on with it.

 

I have read with a lot of interest the various posts where this topic has been covered and it seems to be a very convincing argument that we have on this point, but I cannot find anywhere where it has actually been fully tested. My plan at this point is to use the Section 32(1)(b) / 32(1)© argument although if anyone has any alternative/additional worthy candidates in legislation for making this stick then please let me know

 

If anyone has any other comments or advice then it will be more than welcome, otherwise I will keep updating his post as it progresses.

 

Cheers, Shanks

[andrew1]

I think Seminole is on this case. He has a claim currently - search his threads.

[Shanks]

Hi Andrew1

 

Thanks for the comments, I have watched the long Seminole thread with great interest and was over the moon when they finally gave in and made that huge payout. But

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/10344-seminole-abbey-10-235-a-10.html#post141622

 

From the thread it would indicate that they refused to pay out anything over 6 years and although he is retaining the right to challenge this I havn't seen a thread where this is actually taking place. A few others have said they will claim for over 6 years and basically see if they notice :o but I have decided to be very up front with my bank and tell them that my claim is dated back to the day I opened my account with them in 1997.

 

Cheers

[andrew1]

In that case then your attention to detail and guidance from the site irrespective of your obvious knowledge is paramount because what happens at the sharpe end will often dictate the future on such untested areas. Every word is taken to it's thread as you have seen from the cases going through. So many peoples cases depend on the outcomes of others so I wish you success and the very best of luck. It might be a hard fight.

[Shanks]

Thanks Andrew1,

 

I am acutely aware that trying this sort of thing cannot be done lightly, however I think that because in my case the charges are much heavier pre 6 years that it makes mine a particularly worthwhile fight. If the process makes it easier for anyone else here then that is all well and good even if it just confirms what defence they try and use when pushed on this.

 

I am sure in general terms we have a good case but as you rightly say I am going to have a lot of reading and checking to do before the end. I have submitted my claim now which has been acknowledged. It is now a waiting game to see their next move.

 

Cheers

[gizmo111]

Thanks Andrew1,

 

I am acutely aware that trying this sort of thing cannot be done lightly, however I think that because in my case the charges are much heavier pre 6 years that it makes mine a particularly worthwhile fight. If the process makes it easier for anyone else here then that is all well and good even if it just confirms what defence they try and use when pushed on this.

 

I am sure in general terms we have a good case but as you rightly say I am going to have a lot of reading and checking to do before the end. I have submitted my claim now which has been acknowledged. It is now a waiting game to see their next move.

 

Cheers

 

Nice one,

 

If there is any research etc I can do to help just let me know.

[Shanks]

Thanks Gizmo111, my guess is that it will be led by them to a degree now. But once I know how they are going to approach it, i'll know the best way to proceed at least initially. There are now a number of threads regarding this topic and they have very strong reasoning and case precedent to demonstrate that this is in fact another one we can win against the banks

 

I'll keep you posted,

 

Cheers

[Shanks]

Ok well this particular battle has now been settled

 

I issued a claim through MCOL for all my charges debited since 1997, interest on those charges and then section 69 interest at 8% using the spreadsheet.

 

Up till this point I had received letters telling me that the charges were correct, fair and lawful, although for reasons of commercial expedience they were prepared to pay for all the charges within the last 6 years. No interest and anything over that was statute barred

 

Within two days of the MCOL paperwork being issued I received their notification that they would defend the claim on all points. I then had a phone call asking to discuss an offer of settlement. I said 'Please put anything you wish to say in writing'. The next day I received an offer for the whole sum - all charges since '97, interest and sec. 69 interest on the lot. I have agreed that they can close my account without any further complaint.

 

Clearly, for the moment at least, they do not want to test this particular issue at court level, shame.

 

Cheers

[andrew1]

Brilliant!! Well done on the refund -sorry they didn't allow you to test their staute issue - I could hear you licking your lips in anticipation ! Someone will have em I'm sure

[maybelline]

well done shanks! I have gone for more than 6 years on the grounds that I notified them at an earlier stage. the majority of my claim, approx two thirds falls within the 6 years but there are also some very strange deductions called charges for massive sums £100+ even when the account was running smoothly and in credit for months, I would love to know why this money was taken.

 

CONGRATULATIONS, you have done well.

[andrew1]

Interesting thought on the statute issue. If one had complained of charges (unaware of the current unlawfullness issues) in years gone by and had a so called ' goodwill gesture' refund of said charges by the bank - would/could that be deemed as a basis as described by mabelline that they had been advised earlier therefore pushing the 6yr statute date back even further?

 

I know I have complained to my bank for years about these charges purely and simply because I could not believe they could hit me so hard when my luck was down and arguing that they charged me £30 to return a £9.50 cheque or DD so they refunded as a 'goodwill gesture' - maybe they knew all along?

[Shanks]

An interesting thought but I don't think it would make any difference. We may have complained that we thought tha charges were exhorbitant in years past (I know I did and even managed to get a few of them reveersed as a good will gesteure).

 

But imo the claim here is that we did not know that they were 'unlawful'. Had we thought that at the time we would have made the same issue of it then as we are now.

 

Either way I'm still sure the banks will not want to risk this at court level. But and it is a big but, if this movement grows at the rate it has so far and now everyone starts to claim back as far as they can I don't know how the banks will deal with it.

 

Interesting times ahead I think. Cheers

[Glenn UK]

It seems to me there are two issues which must be satisfied.

 

If the charges were not challenged as being unlawful then the limitations act is clear and six years is the limit

 

you are limited to claiming back no more than six years. in fact the act doesnt put it like that, it says you have six years from when you could or reasnably should have discovered the breach of contract. im parahprasing but i think the jist is correct.

 

On the other hand if you consider the charges were unlawful then you still have six years to claim unless you can show that the defendant concelaed the fact that they were unlawful. then Sec 32 kicks in which removes the liitation.

 

FWIW it seems to me that we cannot at this time show conclusively that the banks knew the charges were unlawful. But we can think about when they might have asked themselves the question, ie. when the OFT began theyre investigation in bank and cc charges it would be reasonable to preusme that the banks reviewed their postion, wouldnt it?

 

Further the OFT dont just set up an investigation out of the blue, something leads up to that point, quesuiotns in the house, multiple complaints or some such.

 

Seems to me that a good argument for pushing back more than 6 years is reasonably easy to think of, putting it together and presenting it in court to convince the judge of course is a different matter.

 

JMHO

 

Glenn

[andrew1]

Do you seriously and honestly believe that as a bank, any bank or financial institution come to that, would not have taken precautions with their squads of lawyers crawling all over their lending agreements, to find out what laws related to their charges? Turning a deaf ear to what they must have known is more like it.

 

I ran a reasonably sized business and we were a heavily regulated business. We had a duty to ensure that we were not breaching laws and we had to have lawyers constructing employment contracts, trading contracts, terms of business and had to make sure were were not trading unlawfully or illegally - the devil always being in the detail.

 

Whenever I went to the bank to arrange lending, overdrafts, invoice financing and so forth the bank's lawyers were acutely aware of what we signed and didn't sign so it falls on deaf ears to me if you are truely implying that this has only just been bought to the surface,( although I'd agree that it could focus around when they might have talked about it and you can bet your life that it was long long long before the OFT got interested ). I detect you might be giving them the benefit of the doubt whereas I'm feeling they have been aware of this for years. Is it for us to prove they knew or the banks to prove they didn't - harder for us I fear. I like your take on it Glenn and yours too Shanks - interesting times ahead indeed

[Glenn UK]

Andrew

 

My thoughts are the same as yours. i did wonder if we could write to the OFT under the Freedom of Information Act and request that they provide any correspondence leading up to the investigation, say for the two years prior, relating to discussions with bank employees, solicitors employed by banks/cc companies.

 

I have worked on government commitees looking into fire safety and Building Regulations regulations and in my experience theres always along history before any money and time is spent on some research.

 

The lead in time to the oft investigation would in all likelihood have been years rather than months. During that time i suspect that various conversations may have taken place between the oft and bank/cc officials.

 

Not withstanding all this, i have no doubt that the issue would have been discussed within legal sections. If it wasnt then it calls into question the ability and integrity of the lawyers working for the banks.

 

I wonder what year that lawyers study the unfair contract terms and condtions or whatever its called when they undertake their studies? I know a student lawyer might ask him what he knows about the whens and hows of a law degree.

 

It just seems incredibly arrogant of the banks and their lawyers to ignore what would have been obvious to them.

 

I do look forward to the day when its proved that they concelaed the unlawfulness.

 

JMHO

 

Glenn

[andrew1]

Writing might not be a bad idea although do you feel 2 yrs would be sufficient?

[maybelline]

Hi there, this is very interesting, I was thinking... if I write to a bank or any organisation and say, I am bringing this to your attention, my problem with what you are doing is this please answer, they then know what my issue is and have to go away and think about it and come up with an answer, the answer has up to now been, we didnt think this was unfair so its not concealment, we just didnt have an inkling this might be unfair. I write again and say I still think it was unfair and they have to go away, think some more knowing what I have told them and then still say, no, definately no reason not to think unfair, how do they come to that decision, what are they looking at before making the answer, and, once they agreed it was unfair (oft) what was the significant difference between the two scenarios other than the person/authority suggesting unfairness?

[Glenn UK]

Andrew

 

i have no idea if 2 years is the right time period, i feel that in reality it wil be difficult to push the time frame back to the begining of the banks unlawful charging and the further we try to push the harder it will be in terms of getting the info from the oft.

 

If we took the enquiry back 2 years pre the start of the oft invesitgation that will take us back to somewhere like 2002 or so, the knock on effect would be to bring in probalby the major part of what lead up to it. the oft investigastions

 

If an oft enquiry is like other goevernmental department enquiries, its likley that they interview and involve interested parties. For example Egg were interviewed i believe because they were given some kind of special status within the report i believe due to the way they set up the accounts, and the oft did come to the conclusion that 12 was a stage beyond which they would intervene. So its probable that they spoke to other banks too to arrive at this figure.

 

So there must have been concealement since the oft report was publisehd apr 06 (I thnk). It is reasonable to presume that banks and cc knew about the reprt from then and yet didnt adjust their charges till now, and then i think its only some.

 

i dont think is sufficent though to show that the concealemnt is valid from that date and for it to impose sec 32 and the concealment argument, realistically it would be reasonable for them to argue they dont agree with the oft and give them time to challenge the report and its findings.

 

its quite likley that leading up to the investigation that there were complaints investigated and banks and cc companies probably defended their position.

 

my feeling is that two years would probably be ok and would in likelihood reveal the fact that some of the banks were asked about their scale of charges.

 

if this would be sufficent to demonstrate that all banks and cc companies could, or reasonably should, have known their charges were unlawful i dont know.

 

But of course if it came to light it would then prove that sec 32 was applicable and that concealment had taken place, The implications are obvious.

 

i dont know anything about Freedom of Information Act act be interesting to see if this has been thought of and if so whether its worth pursuing?

 

Glenn

[PhantomReclaimer]

 

I wonder what year that lawyers study the unfair contract terms and condtions or whatever its called when they undertake their studies?

 

First year of a degree - I know that well, having recently failed a Contract Law exam!

 

P.

[maybelline]

well, i wrote to my bank and have all my correspondence outlining the issue as soon as it first came to light, is it the bankcharges hell site chap, anyway, the bank was well aware that people were saying it was unfair and challenging well before the OFT made its comments, now OFT need to do more.

[maybelline]

the bank are defending any sum over the 6 years but it is not clear to me where they have determined the six year to have begun? from the OFT report or from when I wrote in official language or from when I wrote clearly stating I thought the charges were unfair.

[andrew1]

Isn't the six years generallly thought to begin from when you were made aware of the misdemeanor?

[maggie]

I had posted sometime back in March,of the severely bad credit record we have ,from all charges levied on our account ,when we banked with Loyds bank ,whom we were customers with for over 15 yrs.Due to the PPI ,payment being credited to our account ,months late,to cover the loan payments,and charges levied on top of the overdraft(you have all experienced) , we must have incurred well over £8,000 worth of charges,plus they made our credit worthiness zilch,.

Since that time (1992-1998),every time we have tried to have credit,we have either been refused outright,or the interest rates on anything we purchased were huge,and still are.

I remember going to see the manager of Loyds bank ,complaining of the false credit record they had given us,but was told that they would not amend it ,and sent me away with a flea in my ear.I also remember having a one to one with the manager over the charges put on our account,many times,and on the odd occasion,some were refunded.

We finished paying for the monies we owed to Loyds in 1998,as they have stated on our credit record,and we closed our bank account with them.

We had to borrow from other finance companies to improve our home with huge interest and monthly payments.Unfortunately ,we lost our home ,our marriage broke up,thru all this financial mess,and I blame it all on Loyds false credit report,and their charges.

Maggie

[matd]

I'm unsure what to do about my claim right now. Roughly two fifths of the charges are between 1993 and 1999, and the rest after 2000.

If I was to put in a claim for the whole period (1993 - 2006) and the pre-2000 charges are challenged, would I lose the right to claim for 2000 to 2006 or just the disputed portion?

 

If anyone could answer this for me, I can start my claim! Many thanks

[maybelline]

ok, I am in the same position but further ahead. I claimed for over six years. the bank has paid the six years but disputes the rest on the grounds of the limitations act, they have just entered a defence which I am looking at now, their defence is the limitations act and that my contract wth them not to go overdrawn (standard fare). some forum members have requested the whole amount and been paid the whole amount, some have done the same and been challenged, it is a bit of a lottery at the moment until we go into court and test the limitations argument.