Getting your money back?

[spartathisis]

Kleinwort Benson Ltd v Lincoln City Council and other appeals [1998] 4 All ER 513 background here Mistake of Law Rule Abrogated case

case here http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981029/klein01.htm

 

Comments from those in the know would be appreciated. I am attempting to recover monies paid to a DCA who do not have any proof of the debt, no app form, cca etc just payments made by me over the last 10yrs. OC has no info either, so DCA have closed the file and wont be trying to collect (their words), but still think they can report to CRA`s;)

 

While researching came across the above any info appreciated.

Thanks

Edited June 29, 2009 by spartathisis
missed something out

[mintygit]

Interesting, I posted a a thread yesterday http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/206765-puzzle-day.html asking the same thing, although I was just curious and not intending to do this.

 

However, it would be interesting to find out if someone on here has tried this or trying this.

 

I personally don't see why you can't if the DCA or Creditor can't prove you owe them any money, but if you make a claim against them they could do a bit more thorough investigating in their archives and find a signed agreement, in which case they would turn the tables and begin chasing you again.

 

You got to ask yourself now that you have got them off your back do you want everything to stay quiet? Or do you want to persue them and start something you may not win.

[mr.ton]

I think this will be the start of things to come.

In the same way that the banks are having to refund everyone - i can see the DCA's having to do the same thing in the future

[dcakiller]

I think this will be the start of things to come.

In the same way that the banks are having to refund everyone - i can see the DCA's having to do the same thing in the future

 

That would be a shame, maybe they will ask mr Brown to bail them out with OUR TAX MONEY

[mintygit]

What a good day that will be, even better they don't pay up and you have to get court baliffs to go in, while you sit and watch!

[spartathisis]

In Henderson v. Folkestone Waterworks Co. (1885) 1 T.L.R. 329, the plaintiff had paid water rates to the defendant calculated in accordance with the law as it was held to be by the Court of Appeal. Subsequent to the date of payment, the House of Lords in the Dobbs case changed the law: if calculated under the changed law the plaintiff had overpaid. He sought to recover the overpayments on the ground that he had paid under compulsion and under a mistake of law. It was apparently accepted by the Court that if both these factors (i.e. compulsion and mistake of law) were present, the overpayment could be recovered.

 

Are we not given the impression that we have to pay or else (compulsion)? Looks like the case law already existed before most of us were born:)

[dcakiller]

What a good day it will be when we can give the dca's a taste of ther own medicine and call them every 5 min

[spartathisis]

Reading through the House of Lords judgement I cant see why if there is NO agreement (not unexecuted) to be found there is no reason why you should not get your money back:)

 

In the process of writing my first letter to DCA who admits no agreement in existance. I will add the 8% statutory interest and see what they say:)

[spartathisis]

LORD HOFFMANN Kleinwort Benson Ltd v Lincoln City Council and other appeals [1998] 4 All ER 513

 

Summation:

" I should say in conclusion that your Lordships' decision leaves open what may be difficult evidential questions over whether a person making a payment has made a mistake or not. There may be cases in which banks which have entered into certain kinds of transactions prefer not to raise the question of whether they involve any legal risk. They may hope that if nothing is said, their counter-parties will honour their obligations and all will be well, whereas any suggestion of a legal risk attaching to the instruments they hold might affect their credit ratings. There is room for a spectrum of states of mind between genuine belief in validity, founding a claim based on mistake, and a clear acceptance of the risk that they are not. But these questions are not presently before your Lordships."

&

"The answer is that it is prima facie unjust for the recipient to retain the money when, if the payer had known the true state of affairs, he would not have paid."

 

LORD HOPE OF CRAIGHEAD

 

"

In David Securities, 175 C.L.R. 353, 375 Mason C.J. and others, after referring to the statement by Dickson J. and to the description by Deane J. in Pavey & Matthews Pty Ltd v. Paul (1987) 162 C.L.R. 221, 256-257 of unjust enrichment as a "unifying legal concept", said:

 

• "If the ground for ordering recovery is that the defendant has been unjustly enriched, there is no justification for drawing distinctions on the basis of how the enrichment was gained, except in so far as the manner of gaining the enrichment bears upon the justice of the case."
  

&

 

"

In the same case at p. 393 Brennan J. said:

 

• "When a defendant receives a payment which he has no right to receive and which the plaintiff has paid to him by mistake, the injustice of the defendant's enrichment does not depend on the nature of the mistake that caused the payment to be made. Whether the plaintiff made a mistake of law or a mistake of fact, the defendant, having no right to receive the payment, is unjustly enriched by its receipt. Then should the distinction between the two categories of mistake make any difference to a finding of unjust enrichment?"
  

&

 

"What, then, is the function of mistake in the field of restitution on the ground of unjust enrichment? The answer, one may say, is that its function is to show that the benefit which has been received was an unintended benefit. A declaration of intention to confer the benefit, even if unenforceable (invalid CCA?), will be enough to justify the retention of the enrichment. A mistake, on the other hand, will be enough to justify the restitutionary remedy, on the ground that a benefit which cannot be legally justified (no CCA at all?)should not be retained where it was a mistaken--and thus unintended--benefit."

Still awaiting comments from those who have much more legal knowledge than myself, please:)

Edited June 29, 2009 by spartathisis
missed out something

[spartathisis]

All the above appears to be valid ONLY in the instance of no CCa at all, not unexecuted, app form etc. Please dont glance and think oohh I can claim all my money back YOU CANT!!

[spartathisis]

bump

[spartathisis]

bumpty, bump

[spartathisis]

Am surpirised at so little discussion on something that could have far reaching benefits to many:(

[spartathisis]

subbing:)

[UnitedFront]

If I were you I would PM PT on this one as he seems to be the man with the legal knowledge in the forum.......... his input could be invaluable!!

[pt2537]

oh dear, here we go again

 

the old can you get your money back

 

Well, i think you can, i have infact done so recently for a client who could verify this point

 

however, it is not easy and it took instructing Steven Turner to get the job done at the rate of £1500 per hour

 

i think that it is possible however you really do need to know your stuff and its not something that can be templated and put on the forum etc

[spartathisis]

thanks PT, but i was more wanting to know have I got the correct case law or is there something more recent that has over-ruled the above:)

[pt2537]

well you are missing Kirirri cotton co vs Dewani

 

but apart from that you seem to have it

[spartathisis]

thanks

[natalie]

PT do you think it might be worth mentioning this case law in a letter at some point, to maybe force their hand regarding closing the file.

 

If they think they might be taken to court to reclaim monies already paid they might be more willing to ditch the account altogether.

 

I supposed similar to the doorstep or court action threats they send to us.

[spartathisis]

my thoughts also. As i posted above it doesnt cover many cases on cag, as it appears to apply to no agreement produced rather than unenforceable. There is a possibility that some will use it incorrectly and come a cropper, something we all should try to avoid. I received today a CCa dated 8/1988 so they are kept longer than we may think.

 

I appreciate PT`s comments on its not for a template, but maybe the basic arguement can be laid out and let it develop from there? I have already sent a letter off to a DCA quoting the legislation in detail, with some of the Lords summaries thrown in for good measure. I will see how it goes.

Edited July 3, 2009 by spartathisis
pressed post by mistake, doh.

[Josie8]

PT do you think it might be worth mentioning this case law in a letter at some point, to maybe force their hand regarding closing the file.

 

If they think they might be taken to court to reclaim monies already paid they might be more willing to ditch the account altogether.

 

I supposed similar to the doorstep or court action threats they send to us.

 

 

might as well

[spartathisis]

Well Iv had a reply;) We are not prepared to discuss the matter any further and do not intend entering any protacted correspondence!

 

They have a legal obligation to report my defaulting on my account as the debt exists. So no cca (not even an app form) means they can keep my money and report to the CRA`s as they want, I dont think so.

 

Looks like I file complaints to everyone and then contact the administrators of the company informing them that staff they are responsible for are committing an offence:)

[Harrassed09]

Hi all

 

WHat is the current state of play?

 

Also, trying to 'force the hand' of various OC's and DCA's and whilst do not want to reclaim anything paid would like to resolve the matters once and for all.

 

Just thought I would catch up with you and your very interesting thread!!

 

H09

[spartathisis]

Complained to the ICO, still waiting. Been busy fending off Cabot x2 so not got round to persuing further, but have just bought off CAG the small claims book so will see if that is a goer:)