Bank Charges issues post Test case - How far back will repayments go?

[BankFodder]

Assuming then that the OFT confirms its preliminary view that bank charges have been historically excessive and therefore unfair: --

 

How far back will repayments go?

 

The conventional wisdom is that claim can go back six years. The FSA waiver has frozen the conventional limitation period so that aims can go back to 2001. The law would allow claims to go back to 1995.

 

·Will the FSA instruct banks to pay out money going back to 1995?

·Or will this issue have to be litigated by bank customers?

 

 

After the heat - post test case issues in full

 

 

 

[Bigdebtor]

I'm no lawyer - but I thought the 6 year limit only applied to legally enforceable debts? If so, then surely EVERY single £ paid out in unfair charges and associated interest - from the very first unfair charge - should be reclaimable?

 

BD

[Bigdebtor]

Another point. If the Banks won't give you older info to help you claim back more than 6 years - by claiming their records only go back 6 years - then how can they be sure you hadn't paid the balance off in full 6.5 years ago and just forgot you had done so until now??? (just a thought!).

[paulwlton]

Assuming then that the OFT confirms its preliminary view that bank charges have been historically excessive and therefore unfair: --

 

How far back will repayments go?

 

The conventional wisdom is that claim can go back six years. The FSA waiver has frozen the conventional limitation period so that aims can go back to 2001. The law would allow claims to go back to 1995.

 

·Will the FSA instruct banks to pay out money going back to 1995?

·Or will this issue have to be litigated by bank customers?

 

 

After the heat - post test case issues in full

 

 

 

 

Could you expand on why you believe the law would allow a valid claim to be submitted for charges dating back to 1995.

[BankFodder]

I think that we have done this one already:-

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/230661-rbs-taken-me-court-2.html#post2576836

[baconbuttyman]

ohhhhhhhhhhhhh, if we can claim back more than 6 years, then can we go back before claims we have already won, cor that means i get to av another go at the halifax and barclays,

[BankFodder]

baconbuttyman

 

have you got a charges claim going? Would you like to do a TV interview today?

 

Please contact me on admin(consumeractiongroup.co.uk) urgent with a phone number

[SPROUTY]

Another point. If the Banks won't give you older info to help you claim back more than 6 years - by claiming their records only go back 6 years - then how can they be sure you hadn't paid the balance off in full 6.5 years ago and just forgot you had done so until now??? (just a thought!).

 

This has been a concern of mine for some time If I were a banker I would be shreading and burning all records of six years old on a daily basis, so if clients had no copy statements the bank could turn up at court and attempt to put the burden of proof on to the claimant who would struggle unless they had the old copy statements.

 

So today, is Mr Banker is destroying my records from 23 Nov. 2003?

 

Or

 

Has he only destroyed the records up to 27 July 2001 (in order to "comply" with his interpretation of the terms of engagement agreed between OFT and FSA in the on going test case) ?

Edited November 24, 2009 by SPROUTY

[paulwlton]

I think that we have done this one already:-

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/230661-rbs-taken-me-court-2.html#post2576836

 

I still can't get my head around the fact that there's no brach of contract.

 

I assume pursuant to the UTCCR 1999 the charges will have been invalid, however, because the charges are Invalid under terms of a contract wouldn't section 5 limitation Act 1980 and/or Latches be a defence for the banks.

 

My claim was struck out using the mistake argument.

 

Paul

Edited November 24, 2009 by paulwlton

[MilkTrayMan]

Hi Wal,

I still can't get my head around the fact that there's no brach of contract...

The UTCCR 1999 s8(2) basically says that if the unfair clauses that have given rise to unlawful bank penalty charges etc are taken out of a contract between a financial institution + a consumer, then, if the rest of the contract is okay + lawful, there would be NO breach of simple contract law.

 

 

 

 

I assume pursuant to the UTCCR 1999 the charges will have been invalid, however, because the charges are Invalid under terms of a contract wouldn't section 5 limitation Act 1980 and/or Latches be a defence for the banks.

 

My claim was struck out using the mistake argument.

By saying that U used the "mistake argument" Wal, I am assuming that U are referring to Limitation Act 1980 s32??

 

...Surely, given a favourable ruling for the consumer in the OFT Test Case, s32 is a face saving way forward for the claims process to go ahead, if agreed between all parties, without the banks being forced to give a discrediting statement of admittance of allegedly downright fraud/theft/deliberate concealment etc?

 

 

[bandonbhoy]

Given that the EU directive relating to unfair terms came into force on 1st January 1995, surely the banks have been operating outside those regulations since then.

 

I opened an account with bank in December 1995 and when in 2007 I sent off request for SAR, lo and behold within the piles of paper were four statements relating to 1996 and in three of those months 'charges as notified'.

 

So if this bank were able inadvertently to send me those statements, surely then remainder up to 2001 are alsoo available?

[MilkTrayMan]

This has been a concern of mine for some time If I were a banker I would be shreading and burning all records of six years old on a daily basis, so if clients had no copy statements the bank could turn up at court and attempt to put the burden of proof on to the claimant who would struggle unless they had the old copy statements.

 

So today, is Mr Banker is destroying my records from 23 Nov. 2003?

 

Or

 

Has he only destroyed the records up to 27 July 2001 (in order to "comply" with his interpretation of the terms of engagement agreed between OFT and FSA in the on going test case) ?

Notwithstanding any relevant laws pertaining to the Data Protection Act 1998 or Fiduciary Duty issues, the UTCC 1999 Schedule 2 (1)(q) + the CPR's surrounding STANDARD DISCLOSURE would lend to plenty of claim for seeking Restitutionary Damages methinks SPROUTY.

 

 

[paulwlton]

Hi Wal,

The UTCCR 1999 s8(2) basically says that if the unfair clauses that have given rise to unlawful bank penalty charges etc are taken out of a contract between a financial institution + a consumer, then, if the rest of the contract is okay + lawful, there would be NO breach of simple contract law.

 

 

 

 

By saying that U used the "mistake argument" Wal, I am assuming that U are referring to Limitation Act 1980 s32??

 

...Surely, given a favourable ruling for the consumer in the OFT Test Case, s32 is a face saving way forward for the claims process to go ahead, if agreed between all parties, without the banks being forced to give a discrediting statement of admittance of allegedly downright fraud/theft/deliberate concealment etc?

 

 

 

The judge agreed with the bank's solicitor. Para 19 of Their Skely

 

 

To allow the claimant to invoke mistake in order to postpone the limitation period would open the door to every litigant seeking to bring a prima facie time-barred claim to simply assert that he was previously mistaken as to his legal rights and that the limitation period should not start to run until he understood the same. This would subvert the very purpose of the Limitation Act 1980,namely to protect would-be defendants from suit after allowing potential claimants ample time in which to bring proceedings.

[MilkTrayMan]

Not that the consumer was 'mistaken' Wal

 

...But that the banks admit that THEY were 'mistaken' about THEIR understanding of the law, rather than them having to publically admit to any impropriety.

 

As part of any Pre-Action Protocols that the OFT manage to impose on them perhaps?

 

 

[paulwlton]

Not that the consumer was 'mistaken' Wal

 

...But that the banks admit that THEY were 'mistaken' about THEIR understanding of the law, rather than them having to publically admit to any impropriety.

 

As part of any Pre-Action Protocols that the OFT manage to impose on them perhaps?

 

 

 

According to counsel "mistake" works one way only...the judge agreed.

 

 

 

In order for the claimant to invoke section 32 (1)© of the limitation act 1980, his claim must be "for the consequences of a mistake". This provision only applies where the mistake is an essential ingredient of the cause of action (phillips v harper (1954) 1 QB 411). Moreover, it is implicit in section 32 (1)© that the mistake MUST be that of the claimant rather than the defendant. Insofar as the claimant requests the postponement of the limitation period by reference to a mistake on the part of the defendant, such a submission fundamentally misunderstands section 32(1)©