Do you have charges going back more than 6 years?

[Seminole]

Copy of a post in the Nat West forum:

 

I'm in court with Nat West on Wednesday 12 July at 3.30pm.

 

Nat West are applying to set aside my CCJ against them on the basis that my claim is statute barred. This will be an opportunity to try to deploy the deliberate concealment argument and it will be interesting to see if this flies.

 

If anyone wants to come along, I'd welcome a gallery to play to. The hearing is as above and will be held at the Central London County Court, Civil Justice Centre, 13-14 Park Crescent, London, W1N 1HT.

 

Please could you let me know if you're planning to attend.

[bram stoker]

I wish I could, but have to work. I feel a sicky coming on.

[maybelline]

wishing you the very best for Wed 12th, I doubt I can get there but want to say I support you along with everyone else here

[paulwlton]

best of luck.

[towelie]

Good Luck!!!

 

 

 

My charges from Halifax go back to 1998. Total amount is £1218, amount before 5 year period (am in Scotland) £410. Hope I can get these back.

[c_allen]

good luck for wednesday although i'm sure you won't need it

[Spiceskull]

Copy of a post in the Nat West forum:

 

I'm in court with Nat West on Wednesday 12 July at 3.30pm.

 

Nat West are applying to set aside my CCJ against them on the basis that my claim is statute barred. This will be an opportunity to try to deploy the deliberate concealment argument and it will be interesting to see if this flies.

 

If anyone wants to come along, I'd welcome a gallery to play to. The hearing is as above and will be held at the Central London County Court, Civil Justice Centre, 13-14 Park Crescent, London, W1N 1HT.

 

Please could you let me know if you're planning to attend.

I won't make any promises, but if I can be there I will...

[JonCris]

HI I'm looking to recover charges of £310 (& that's just a start) pre Feb 2000 using the recent knowledge argument. Sent DPA request with PO this was returned to me stating that as the account was closed in Feb 2000 they are unable to supply statements as they are only required to retain the records for a period of 6 years. As they don't say directly I have responded asking that for the avoidance of doubt they confirm they have disposed of or destroyed their records of my account & that I await their responses with interest. If they haven't got my records anymore how come they know it was closed in Feb 2000! Also have later corre from a collection agency which a think invalidates their argument.

[Phil3822]

A friend of mine is filling this evening for her claim against Halifax. Her first charge dates from 31st of April 2000 of £30. We're planning on claiming from then however I'm now not sure. She started her claim including the DPA request around 6 weeks ago.

 

Does the limitation period 6 years apply from the date of filling or the date proceedings and notification against the bank start. IE Prelim etc?

 

As far as Im aware Statute Barred is a 6 year rest period where no action or communication has been made to recover said charges. Im sure someone will correct me...

 

Thanks in advance.

[Seminole]

HI I'm looking to recover charges of £310 (& that's just a start) pre Feb 2000 using the recent knowledge argument. Sent Data Protection Act request with PO this was returned to me stating that as the account was closed in Feb 2000 they are unable to supply statements as they are only required to retain the records for a period of 6 years. As they don't say directly I have responded asking that for the avoidance of doubt they confirm they have disposed of or destroyed their records of my account & that I await their responses with interest. If they haven't got my records anymore how come they know it was closed in Feb 2000! Also have later corre from a collection agency which a think invalidates their argument.

 

Your best bet would be to send an extremely wide SAR asking for absolutely everything they have on file about you. I know, for example, that Nat West keep records for at least 7 years and I have reason to believe that it might be 8 years or more. You might be wasting £10 but, on the other hand, you might find that they're not exactly being truthful.

[alanfromderby]

This 6 years limit that banks are quoting for Data Protection requirements is a complete smokescreen anyway. The Inland Revenue legislation states that details must be kept for at least 6 years after the end of the tax year. That generally means information has to be kept for at least 7 years - and I can't believe that they are that efficient at shredding/deleting.

 

I may be wrong, but I also seem to recall reading that information on loans covering the whole loan period must be kept until 6 years after it is paid off - or presumably defaulted.

[landotte]

Best of luck for your court date, may not be there in person but will be in spirit

[Seminole]

OK, this is what has gone into the Court as my submission for the hearing tomorrow:

BACKGROUND TO CLAIM

1 I opened a Gold Current account number 00000000 (“the Account”) with the Defendant on 1 May 1991. The Account comprised a bank current account, a £10,000 unsecured overdraft facility and an associated deferred debit card. In 1998 the unsecured overdraft was converted into a fixed term loan and the overdraft facility was withdrawn. Various charges for unpaid transactions and unauthorised overdraft positions were applied to the account until it was transferred to the Defendant’s Credit Management Services department on 26 July 1999. The Defendant sought and obtained a County Court Judgment for the outstanding loan and overdraft balances in July 2002 (claim number YE220240). This judgment was enforced by a charging order against my home and also subsequently by a warrant of execution. The whole outstanding balance was repaid on or before 27 May 2004.

2 In January 2006 I discovered that charges levied to remedy a breach of contract may be unenforceable if they are disproportionate to the cost of remedying the breach and that a number of individuals had obtained refunds of bank charges on this basis.

3 On 11 February 2006 I wrote to the Defendant (Appendix 1, Schedule 1) requesting a refund of charges applied to the Account. If the Defendant chose not to refund these charges, I requested details of the charges applied to the Account as a Subject Access Request (SAR) under the Data Protection Act (1998). Unfortunately I had not retained any details of the Account and, at the time, I was unsure when charges had been applied and I also did not have the account details.

4 The Defendant’s reply is attached as Appendix 1, Schedule 2. In summary the Defendant refused to comply with my SAR because “on the basis that your account is closed, there is no detail to share with you”. The Defendant also refused to refund any charges applied to the account.

5 As the Defendant refused to comply with my SAR I complained to the Information Commissioner who upheld my complaint (Appendix 1, Schedule 3). The Defendant complied with my SAR on 15 June 2006, some 84 days after the statutory deadline of 40 days.

6 As the Defendant had refused to comply with my SAR and also refused to consider a refund of charges applied to the Account, I issued a county Court claim for estimated charges of £2,000 on 7 March 2006. This was deemed served on 29 March 2006 and acknowledged by the Defendant on 29 March 2006.

7 The Defendant wrote to me on 20 April 2006 (Appendix 1, Schedule 4) but I did not receive this letter until the evening of 24 April 2006. The Defendant asserted its rights under Section 5 of the Limitation Act (1980) but offered to refund charges levied on the Account between 29 March 1999 and 26 July 1999. I decided not to accept this offer for three reasons:

· The Defendant had not complied with my SAR and I had no means of validating the charges applied to the account.

· The letter is internally inconsistent in asserting the Defendant’s rights under the Limitation Act whilst offering to refund charges levied more than six years ago.

· I do not consider that Section 5 of the Limitation Act places a restriction on this claim.

8 I entered judgment in default on the claim on 27 April 2006. The Defendant attempted to file a defence dated 27 April 2006 after the expiry of the submission deadline and this was not accepted by the Court. As there was no further contact by the Defendant, I applied for a Warrant of Execution.

BASIS OF SET ASIDE APPLICATION

9 I do not accept that the claim is time barred by virtue of Section 5 of the Limitation Act (1980) on two grounds.

10 Section 5 of the Limitation Act states that “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 expired”. However, rights under the contract do not become time barred if there is an acknowledgement or payment of a debt within the six year period. I contend that my payment of £500 on 8 October 2001 and my payment of the balance due under the Defendant’s County Court Judgment against me constitute an acknowledgement of the debt. I contend that if I acknowledged the debt and the Defendant asserted its rights under the agreement, then any assertion of my rights under the agreement would not be time barred until six years after the last acknowledgement.

11 This argument may be illustrated by way of example. If, in 2002, I had acknowledged a debt to the Defendant but it had not sought and obtained a County Court Judgment, the debt to the Defendant would not become time barred until July 2008. It would be possible for the Defendant to make a county Court claim at any point during this six year period. The Defendant’s assertion that this claim is time barred implies that it is possible that one party’s rights under an agreement may be time barred whereas those of the other party are not.

12 If the charges are time barred by virtue of Section 5 of the Limitation Act (1980) then I contend that he Defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the Defendant truly believes that these charges are lawful, then I contend that the Defendant is mistaken. As I only became aware during January 2006 that the charges debited were unlawful, then section 32(1)(b), or section 32(1)©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period.

13 In April 2006 the Office of Fair Trading published “Calculating Fair Default Charges in Credit Card Contracts” (attached as Appendix 2). Paragraph 1.1 of the report states that whilst it deals with credit card contracts,

“The principles have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and storecards”.

Paragraph 1.3 states:

“The statement sets out our view of the law which is in essence that default charge provisions are open to challenge on grounds of unfairness if they have the object of raising more in revenue than is reasonably expected to be necessary to recover certain limited administrative costs incurred by the credit card issuer”.

14 Based on discussions with the banks and information provided by them, the OFT determined a simple monetary threshold for intervention by the OFT on default charges under credit card contracts of £12 (Para 1.8). This threshold is significantly lower than the default charges levied by almost all credit card companies and it is therefore reasonable to conclude that the credit card companies were aware that these charges were intended to generate a profit over and above the cost of remedying contractual breaches by customers. Given that the credit card companies have consistently refused to provide a breakdown of their costs to demonstrate that their default charges are not punitive in nature I believe that they deliberately concealed the nature of these charges from their customers.

15 As the OFT has stated that the principles underlying its report on credit card default charges are analogous to standard default charges in bank current accounts, I contend that it is likely that the Defendant and other banks have concealed the punitive nature of current account default charges from me and other bank customers. I therefore further contend that Section 32(1)(b) of the Limitation Act (1980) applies and that my claim is therefore not time barred. In order to determine whether this view is correct it may be necessary for the Court to consider the Defendant’s management accounting information and decision making processes governing the setting of charges. I am therefore seeking disclosure of this information as set out in paragraph 19 below.

16 If the true nature of the default charges applied to the Account by the Defendant were not deliberately concealed from me, I contend that the Defendant mistakenly set these charges with a view to generating a profit. I base this assertion on the principles set out in the OFT report and the Defendant’s failure to defend claims for the refund of default charges applied to bank accounts where the issue of time barring has not arisen. Based on a survey undertaken by the Consumer Action Group, the Defendant has refunded charges totaling approximately £102,000 to 80 customers since January 2006. Over the same period UK banks have, according to the survey, refunded 1,138 customers, a total of £1.1m. All of these claims have been settled before a Court hearing has taken place. I contend that this is because the Defendant and other banks are aware that their default charges are likely to be judged unlawful.

SUBMISSIONS TO THE COURT

17 I contend that this claim is not time barred by virtue of Section 5 of the Limitation Act (1980) for the reasons set out above.

18 If the Court does consider that the claim is time barred by virtue of Section 5 of the Limitation Act (1980), I ask the Court to consider the arguments set out above in respect of Sections 32(1)(b) and 32(1)© and allow this matter to proceed to a full hearing in which these arguments may be considered in detail.

19 I would request that the Court allocates this claim to the Fast Track, orders Standard Disclosure and orders that this should specifically include:

· A full statement of all charges applied to the Account between its opening and closure

· Copies of minutes of executive meetings of the Defendant where the setting of default charges on current accounts has been determined

· Copies of management accounting information produced by the Defendant comparing the revenues generated by default charges to the costs incurred by the Defendant as a result of defaults

· Detailed system notes, flowcharts and procedural manuals describing the process for applying default charges to current accounts

[elsinore]

Gosh!

[alanfromderby]

All the best, only wish I could get along but unfortunately work commitments don't allow. Look forward to hearing your report of events.

[maybelline]

very good luck, thats interesting reading, in my own way it seems to me that if the banks thought that the charges were okay and not for profit more than six years ago and also have not shown they are set at correct rate now how can they argue otherwise. best wishes.

[Guest NATTIE]

Interesting to know how it goes

[NitrousOxide]

I thought the limitations act only applied if there was no contact from one or both parties. They can't use this if you use your account.

[ppauls150]

How many people have already said that are attending or how many you think will turn up?? will or can the court make it a closed room if the banks wish it or for any other reason? What if there is not enough space in the court room for everyone tomorrow that would be good

[paulwlton]

superb. all the best for tommorow. Am i glad you posted that. just what i've been looking for, as my case is similar.

[joneshousehold]

Wow Seminole, that looks brilliant. Hope you get some success tomorrow. All that drinking on Saturday must have done some good even if we did all just chew the fat. Sorry I can't be there

[homoeopathics]

Very best of luck....really looking forward to your next post.

 

What is the advantage of requesting an allocation to fast track?

[Seminole]

Very best of luck....really looking forward to your next post.

 

What is the advantage of requesting an allocation to fast track?

 

Disclosure. It's unlikely that the court would order disclosure of the items requested in pata 19 on the small claims track. It's much more likely that they would do so on the fast track.

 

It's all going to come down to an interprepation of Section 32 and whether the court is prepared to accept that the banks have been deliberately or mistakenly misleading their customers over the true nature of bank charges.

 

A single management report that projects the profitability of Nat West's bank charges regime ought to be enough to condemn them.

[JonCris]

Hi BF

 

Have a look at this case. It is relevant to the issue.

 

House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

 

A Claimant would need to show that the banks knew the charges were penalties and didn't tell us. There is plenty of evidence to suggest that this might have been the case but not much concrete before the OFT and parliamentary commission interest began.

 

If the banks were to plead that they genuinely believed the charges to be lawful at that time then the evidential burden would be quite difficult to discharge, don't you think?

 

I disagree. I don't think the banks can claim ignorance as like many traders they are deemed to have special knowledge. They would be expected to ensure that anything they did was fair, reasonable & not least lawful. Like the Endowment companies the banks as soon as they became aware that their charges where unlawful should like the endowments companies have written to each customer past or present advising them of their right to claim. They could even have advertised the fact in the press. Not doing so I suggest amounts to concealment

[Seminole]

The following is relevant:

 

Definition of Fiduciary

Black's Law Dictionary describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another." A fiduciary has a duty to act primarily for the client's benefit in matters connected with the undertaking and not for the fiduciary's own personal interest. Scrupulous good faith and candor are always required. Fiduciaries must always act in complete fairness and may not ever exert any influence or pressure, take selfish advantage, or deal with the client in such a way that it benefits themselves or prejudices the client. Business shrewdness, hard bargaining, and taking advantage of the forgetfulness or negligence of the client are totally prohibited by a fiduciary.

As fiduciaries, financial planners must make fair and complete disclosure of all material facts and must employ reasonable care to avoid misleading their clients. The utmost good faith is required in all their dealings. Simply put, fiduciaries must exhibit the highest form of trust, fidelity and confidence, and are expected to act in the best interest of their clients at all times.