HSBC Loan PPI

[caro]

So section 69 interest then I imagine so I can see no reason why it shouldn't be small claims.

[the_shadow]

posts 105 + 106

 

as long as you have made this clear

 

let them conitinue to frighten you.

thats all it is

 

dx

 

As DX has quoted above the s 32c limitation act needed to be in your POC, also have you quoted the case law for this: Kleinwort Benson -v- Lincoln City Council & Others in your statement ?

 

S.

[moose73]

These were in my witness statement

[the_shadow]

These were in my witness statement

 

Sorted then ;-)

[caro]

[dx100uk]

think they are just trying to confuse and frighten you..

 

ppi is 6yrs from when you 'became aware' as sec 32c

 

also this has been pointed out elsewhere too:

 

I would consider adding section 14a as well. That gives you three years after you had enough knowledge to commence a court action, with a 15 year back up time limit.

 

 

14A Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.E+W

 

(1)This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.

 

(2)Section 2 of this Act shall not apply to an action to which this section applies.

 

(3)An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

 

(4)That period is either—

(a)six years from the date on which the cause of action accrued; or

(b)three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

 

(5)For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.

 

(6)In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—

(a)of the material facts about the damage in respect of which damages are claimed; and

(b)of the other facts relevant to the current action mentioned in subsection (8-) below.

 

(7)For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

 

(8-)The other facts referred to in subsection (6)(b) above are—

(a)that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b)the identity of the defendant; and

©if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

 

(9)Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

 

(10)For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)from facts observable or ascertainable by him; or

(b)from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

 

Linky:

 

http://www.legislation.gov.uk/ukpga/1980/58

 

 

dx

[moose73]

Thank you

[moose73]

update -

 

Received an appliaction for the case to be struck out from the court with their witness statement attached. (Note they missed the courts deadline for submitting the witness statement).

 

No response to the letter I sent to the court.

 

Rang the court and they didn't really say much.

 

There is now a hearing for this bit in June.

 

The want it struck off due to limitations act and all their costs to be PAID BY ME. WTF?

 

I think its out of order that the bank/solicitor can act like this and get away with it.

 

I have a bad feeling about this.

[citizenB]

dx gave you information regarding the limitiation act a while back didnt he ?

[Skins08]

Subbing with interest!

Have you heard anything from HSBC since the recent judgement?

Am just about to start a similar claim with them - I am self-employed...

Best of luck anyway

[moose73]

quick update, going to court on Monday on the limitation act bit.

 

see if they turn up this time.....

[moose73]

Went to court today for the hearing to decide if to strike out my claim, just about to walk in and was approached by HSBC legal man and he asked if I had received their Skeleton Argument? I hadn't so he gave me a copy, excellent, no time to read it and in we go..

 

This was it:

DEFENDANT'S SKELETON ARGUMENT

FOR HEARING ON 13 JUNE 2011

 

Suggested pre-reading (15 mins):

• Statements of case
  
• Witness statement of Daniel Chumbley in support of D 's application
  
• Witness statement of C in opposition to D's application
  

 

Introduction

1. This is D's skeleton argument for its application (dated 15 March 2011) for

C's claim to be struck out or for summary judgment.

 

2. In summary, C has no reasonable grounds for bringing the claim because it is

statute barred. The claim relates to a payment protection insurance (PPI')

Policy that C held in respect of a loan that was both entered into and repaid

more than six years before these proceedings were issued (2 June 2010).

 

C's claim

3. C has held two fixed sum credit agreements with D:

3.1. A loan entered into on 12 April 2001 and repaid in full on 19

December 2001 ('the First Loan').

moose v HSBC

3.2. A loan entered into on 19 December 2001 and repaid in full on 23

June 2004 ('the Second Loan,).

 

4. C entered into a PPI policy in respect of the First Loan, but not the Second

Loan.

 

5. The principal allegation in C's claim is that he was told that the PPI policy in

respect of the First Loan was 'absolutely necessary in order to proceed to

obtain the associated credit' when it was not. Although the particulars

include other allegations, his core claim is for damages for misrepresentation.

 

6. It is D's case that C would have been made aware at the time that the PPI

policy was optional and not a requirement for the loan.

 

C's claim is bound to fail

 

7. The Limitation Act 1980 provides:

 

2 Time limit for actions founded on tort

An action founded on tort shall not be brought after the

expiration of six years from the date on which the cause of

action accrued. ..

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought

after the expiration of six years from the date on which the

cause of action accrued.

 

8. The limitation period applicable to an ordinary misrepresentation claim is

accordingly six years after the cause of action accrued. This would have been

when the representation had been made and C entered into the PPI agreement.

 

9. The cause of action therefore accrued on 12 April 2001.

C appears to accept that, under the usual time limits, his claim would be

statute barred. He instead relies upon the postponement of the limitation

period under s.32 of the Limitation Act 1980 on the grounds of alleged

concealment.' This section provides:

32 Postponement of limitation period in case offraud,

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.

References in this subsection to the defendant include

references to the defendant's agent and to any person

through whom the defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate

commission of a breach of duty in circumstances in which it

is unlikely to be discovered for some time amounts to

deliberate concealment of the facts involved in that breach

of duty.

 

10. C's claim does not fall within this section. Even assuming, for the purposes of

this application, that D's agent did tell C that he was required to take out the

PPI Policy, there was no further concealment by D. C could, with reasonable

diligence, have determined, from the documents that were provided to him

when he took out the PPI Policy, that that policy was optional:

10.1. He signed a 'creditor protection declaration' which provided that

I have decided to take loan protection.

I have received a copy of the loan protection policy

document.

I am aware of the eligibility criteria, terms and

conditions and exclusions applicable to the policy.

 

10.2. The credit agreement itself provided: 'I/We have decided to take

Personal Loan Protection'

10.3. The terms and conditions ofthe PPI Policy made clear that he

could terminate the Policy within 30 days of opening it, without the

loan also being cancelled. The introduction provided:

If you decide you do not want this protection,

please return this policy document to your HSBC

Bank within 30 days of receiving it. If you have not

made a claim during those 30 days, we will cancel

the cover and refund any premium you have paid.

 

11. Further or alternatively, at the very latest, C could have determined that the

PPI policy in respect of the First Loan was optional when he entered into the

Second Loan agreement (19 December 2001), which was still over six years

before he issued this claim. He did not enter into a PPI agreement in respect of

this loan.

 

12. It is further to be noted that in his witness statement C does not put forward

any case as to when he could, with reasonable diligence, have discovered the

alleged misrepresentation.

 

Conclusion

13. C's claim was issued over six years after the accrual of cause of action he now relies. The limitation period has not been postponed. The claim is therefore

statute barred and should be struck out.

 

So in the end the judge was really not happy with them and the fact they had only given this to me there and then, and also they had not followed the previous directions from the judge and not submitted their witness statement, yet they got let off and was told to submit it within the next 2 weeks.

Argued about it being a mistake etc.

Not stuck out either way and case adjurned to July.....(which was the main court hearing date anyway)

The judge said that the full day would be required in court.

[moose73]

another letter received today from HSBC, a schedule listing their costs which they are claiming from me at £2500.00, and this is meant to be small claims court?

[MARTIN3030]

Ok,first of all,it is extremely unlikely that these costs would be awarded.

Have they broken down the figures ?

They appear to be saying that you could have reasonably discovered any mistake back in 2001.

Well the same can be said of the 10s of 1000s of customers who are now being refunded PPI from an industry that has admitted the policies were flawed,yet only became aware of that after the OFT took them to Court.

They should be using a local Solicitor to deal too.

Let us know where this 2.5k comes from.

This is intimidation.

[MARTIN3030]

Also-did you provide any supporting case law in support of limitation -for example the judgement from Kleinwort Benson v Lincoln City Council ?

[moose73]

Also-did you provide any supporting case law in support of limitation -for example the judgement from Kleinwort Benson v Lincoln City Council ?

this was in my witness statement, but they missed the deadline with theirs, so they applied to strike out my claim instead, which the court heard yesterday. so the above case didn't get raised.

 

The costs are broken down @ £100 per hour for their timeplus letters and phone calls at 10 each.most of the costs were for the striking out.They had applied for judge to order these, but this was declined.

[moose73]

Update - Witness statement received from HSBC today. This was signed by an employee of hsbc who worked in my branch at the time of the loan was taken out, but now works at a different branch. Thing is that it didn't happen at that branch but at a branch near where I worked!

 

anyway, court date is end of july, and I think there is no way they will settle before court, they will be fighting this all the way, so a word of warning to others fighting against HSBC, they are no push overs, and be prepared to go all the way with them. In hindsight, I wouldn't have done this if I knew how much work and money it was going to cost me, and I only took it on after mbna paid out so easily on a different loan.

[caro]

Hi Moose. Just having a catch up. Can you confirm that this has been allocated to small claims?

[moose73]

yep small claims as was for 3k, but HSBC were trying to claim their costs from me.

 

Court monday for the main hearing.

[caro]

yep small claims as was for 3k, but HSBC were trying to claim their costs from me.

 

Naughty naughty. I hope you get the chance to make the judge aware of this.

 

Court monday for the main hearing.

 

Good luck with that. Goes without saying, feel free to post if you want any help over the weekend.

 

Some excellent advice on preparing for court here. http://www.consumeractiongroup.co.uk/forum/showthread.php?163425-Re-Me-vs-MBNA-court-case-looming-help-please-**DISCONTINUED**&p=2171582&viewfull=1#post2171582

[moose73]

just had a letter this morning with their costs of 7k that they say they will recover if they win. Can they do this?

 

they have also sent 3 past cases in high court about failed mis selling claims, all about misrepresentation.

 

these are:

black horse ltd v david and caroline speak

barry robinson soulsby v firstplus financial group

observations by judge waksman qc in Manchester county court

 

HELP!!

[the_shadow]

Costs in the small claims court are NOT the norm, judges have some discretion but they must show you have been unreasonable in your conduct towards them and the court. ALL solicitors use costs as the threat just before the hearing.

 

S.

[rebel11]

Thanks The Shadow.

[caro]

Have they made any offers to settle at all?

[moose73]

Nothing, they are fighting all the way