20 year claim limit in Scotland

[m'n'bc]

Well, I'll probably give it a whirl Robert, nothing ventured etc etc.

 

The wife will *definitely* have charges to claim though, so if we don't get mine, there should be no issues with hers as they are all fairly recent - within the last five years anyway.

[bfb]

none of the discussion so far on this mentions the question of what the act calls fraud, ie the banks concealing the facts on the charges by maintaining that they were lawful

 

"reasonable diligence" needs to be taken in context of the reputation of the banks and their self portrayal as prudent professionals over the years

It would have been extraordinarily diligent for anyone to discover the duplicitousness of the banks before the publicity recently, the reasonable person would perhaps have been duped by the publicity

[m'n'bc]

Hiya bfb,

 

Basically, I think the banks are only concerned about reputations as portrayed in the papers. Since when has a bank practiced AND preached fiscal prudence simultaneously?

 

I'm about to go slightly off at a tangent here with my thoughts, but will get back to the point in hand in a mo - As I've mentioned I am looking at my charges from when i was a student about 10 years ago. Certainly, BoS gave both myself and most other students I knew tacit approval to run up frightening overdrafts. An overdraft of £1500 was effectively granted without question and was implemented in £500 increments. I remember asking for a limit of £500 and being told that I might as well have the £1500 now to save me coming back later in the year!

 

£1500 was the maximum you could have without consultation. That's a lot of money for a non-earner. Many more run up far heavier debt with the full approval of the bank. The student market is very competitive - you'll see this when the banks offer railcards, "free £25 in your account" and more recently, iPods etc to 18 year old kids who have never controlled their own finances before except in the most facile way. The flip side for said 18 year olds is on page 4 of a terms and conditions sheet which, rightly or wrongly, might never be consulted or highlighted, but the bank knows that all they have to do is penalty charge the person once or twice and that's the introductory gift cost recouped!

 

And as for the charges....well, I think of them in the same way as banks withdrawing from "undesirable" areas and sticking in cashpoints in shops which charge you to get at your money. The people who can afford it least are the ones they'll do what they can to shaft without compunction - indeed they depend on it to an extent. It's cynical and morally wrong but some think that it's the fault of the person at the receiving end for not exercising "reasonable diligence" to get to the bottom of what these charges are comprised of.

 

I had never considered claiming back / launching a claim against until a friend told me about this site a couple of months ago after I had said that my wife had been charged £30 for going a pound or two over her agreed limit for a day. I've found all my old statements and the original query was "is this within a statute of limitations?" 10 years might be pushing it, yes, but I'd feel so bl00dy justified in doing it!!!!

 

Anyway, rant over. We'll sort out the wifes claim which chould be a certainty before trying my one out .

 

Incidentally if anyone has had success outwith the 5 / 6 year period, please post to let me know!

[Advocate]

I am afraid not BfB. The "fraud" discussed in the 1973 Act is equated with the requirements for fraud at common law, i.e. the criminal variety. The Banks have been pretty up front about the fact that you would get charged if you breaching your contract (and lets not get too sanctimonious. The charges are only applied when the consumer fails to adhere to the terms of their contract. While harsh to be charged £25 for going £1 or so overdrawn, it seems to me that you cannot rack up thousands of pounds in charges without being at least a little financially irresponsible, if not reckless).

 

The best argument is that suggested by Robertxc. He is saying that as the Banks have not disclosed the costs involved in administering breaches of contract by the customer, a consumer exercising reasonable diligence could never have known until the OFT report that the charges were penalty charges. The riposte is that that is exactly why we have litigation. People believing they have been wronged and then using the process of litigation to determine the true facts through the process of pleadings and the tools afforded by the process to discover information from the other side. If it appears half-way through that the other side actually has a reasonable defence, it will cost you cash to have found that out, but then you have to settle and pay their expenses.

 

Whether the banks will actually run with the prescription defence is yet to be seen, but if they do the consumer will be well advised to seek the assistance of a lawyer, or give up. These kind of legal arguments require someone with a knowledge of the law and the ability to argue on the basis of analogy.

 

Also, if the courts were to allow such a subjective interpretation of the requirements of reasonable diligence, it would open up claims on the basis of peoples' deliberate ignorance, directly contrary to the policy of the Act, which is to ensure that claims are dealt with within a period of time which allows witnesses to remember things and documents to be available.

[Ropey]

Forgive my presumption here. Am I right in thinking, Advocate, that your sole intention in joining this forum was to disuade others from claiming monies unlawfully removed from their accounts by banks?

 

It seems strange to me that an uninterested party would do that.

[Advocate]

Ropey, this is the law, this is my interest. What I say here is not necessarily what happens in practice, but it is my considered opinion, based on the access I have to pretty extensive legal resources. It is also interesting to get other peoples' take.

 

I wonder what you think about the fact that a bank is now talking about charging people for simply operating a normal current account. Thin end of the wedge perhaps. Does this mean that those who manage their finances are now beginning to finance these settlements? What then for these consumers I wonder? The Banks make an obscene amount of money, but won't stop recording increased profits. Somebody pays.

 

I don't have any bank charges and it perhaps helps to have a bit distance mate.

[bfb]

some points

 

If the banks have been relying on unlawful charges and interest on these to fund free banking then there is something wrong at the core of their business

 

the questions of fraud or error are open to interpretation and the commentary in Johnston on Prescription and Limitation is less definitive than your opinion. The fact that the banks are perfectly upfront fall neatly into the provisions of 6.(4,a,ii) of the act in inducing error

 

Similarly the interpretation of reasonable diligence is subjective by its very nature and must rest on the facts and circumstances of each case That is a very long way from wilfull ignorance

 

finally it is quite possible to rack up penalty charges with no fecklessness in a vicious circle initialted by the bank

[Advocate]

BfB

 

1st: I doubt the banks have been "relying" on charges to fund free banking, although they have no doubt enjoyed the increase in profits that these charges have provided. Their constant and overrding duty is to their shareholders and if profits were to fall as a result of payments then pressure falls on the directors. They will do what they can to ensure this does not happen (and indeed are legally bound so to do). This may mean beginning to charge for basic services, as happens in most other European countries.

 

2nd: The law on prescrirption, as in many other areas, is not definitive and relies on argument by analogy. The banks are not guilty of "fraud" as they have not gained an advantage by deliberate concealment of anything, and proving that in court would in any case be a very tall order. They have been upfront about the charges that apply on default and the fact that they are now being challenged as unlawful does not alter this fact of openness.

 

3rd: they have not induced error as they have never stated they they are lawful, merely that they believe their charges to be so. This then puts the onus on the party who belives they have been wronged to challenge their belief by raising an action. The error must be induced by the defender and this would require the Banks to do something more than simply assert their opinion. It comes down once again to the individual responsibility of the individual to take action if they are of a different opinion, which of course many people are now doing.

 

4th: One or two bank charges can cause a difficulty, but how do you manage to get one in the first place. There must be a degree of mismanagement, albeit perhaps excuseable in our incrasingly complex working and social lives . People either do not have enough money to pay a direct debit they themselves instructed; have themselves written a cheque without ensuring there was enough money in their account (perhaps itself a fraud if done knowingly); or used their switch card again without checking or perhaps maybe knowing they do not have enough money/authorised overdraft to cover it. That, I am afraid, is personal responsibility.

 

5th: I note you do not express an opinion on the possible adverse consequences for those who have managed their finances and operated within their means. I think in the context of a discussion of the unconsciounable conduct of the Banks it is worth asking just how righteous the position of claimants is vis a vis other parties who will then suffer as a result of their breaches of contract.

 

I look forward to your response.

[bfb]

I will not comment on certain aspects I believe you are not disintereste

 

If institutions are increasing returns to shareholders by unlawful means that is wrong. If they are forced to return the ill gotten gains then the consequences must be borne

 

You are deliberately decontextualising the position with regard to error and fraud Being upfront does not preclude fraud

 

I have had bank charges caused directly by bank mismanagement leading directly to other consequences

 

The money is being paid back by the banks because they should not have had it in the first place, if they were entitled to it then they should keep it.

If the refunding of the money causes banks problems elsewhere, then it is the bank which has caused those problems not the person to whom they are repaying the money.

[JonCris]

1 year ago, any, and I mean ANY solicitor consulted on penalty charges would have patronised an "ordinary" consumer right out of his office. As for the CAB, they STILL to date do not advise to reclaim charges, and instead advise to "enter into a dialogue with the bank" or to go to the Ombudsman.

 

As someone who has a 'special interest' in the limitation argument I'm afraid I have to agree with the mod & most of the other posts. To suggest that an ordinary consumer should have known or even questioned the banks charges is a complete non-starter. Not only that CAB & all the solicitors of my aquaintance didn't realize what was happening was unlawful & why should we we trusted the banks.

I believe the concealement argument has merit & if that isn't the case the limitation act provision allows that even if they have made a mistake which could have been found through due diligence (like consulting their lawyers perhaps) then they are still not protected by the act

 

Advocate your comments about many people living beyond their means shows a clear lack of understanding of whats going on in our society.

 

Most need to borrow just to survive in todays overtaxed country. Also if you took the trouble to read most of the stories on this & other websites you will note that most of the lenders victims have not got into their situation because they are feckless but most for reasons such redunancy/illness/ & other family reasons yet these are the people the banks actually target to penalise in their already dire situation. Not only that they activley encourage these same debtors to take out loans to pay their overdrafts & then wonder why they can't pay when the money runs out.

 

My point is unless you have been in the situation which many here have found themselves then I suggest you refrain from implying that debtors only have themselves to blame they dont!

[Advocate]

JonCris,

 

The Limitation Act is, of course, an English Statute. We have our own legal system up here which, while similar and often influenced by yours, is based on principles and not, as in England, remedies. Not only do we have separate legislation on this matter, our judges approach problems in different ways. I confess it irritates me when people fail to make the distinction and seek to spread "knowledge of the law", which does not apply in this jurisdiction. It is misleading for people.

 

If you are someone who has managed to get a bank to settle beyond the Limitation period in England and Wales (6 years), congratulations to you. However, this does not necessarily imply that the law in relation to the postponement of the beginning of limitation period is in your favour. The reasons for not fighting such claims could be multifarious, and may indeed least of all be that the Banks consider the law to be on the side of the consumer. One extrajudicial settlement does not mean the law is on your side.

 

We are overtaxed and need to borrow you say. I would be interested to hear what all this borrowing is required for, although I sense that you are saying it is all the banks' faulty for entering into commercial arrnagements with a view to securing profit from the consumer. If this is abhorent, stand for election on a platform for change. Fact is, we are all better off in terms of meeting basic needs than at any other point in our history, yet we have more than twice the levels of consumer debt than in any other country in the EU. Personal sequestrations/bankruptcy is at an all time high. Whose fault is this, Sky tv for making such an irresistible if not indispensable product? People are living beyond their means, it is essential that this is recognised if people are to be proactive about dealing with their levels of debt. Life in our society is not about fairness, it is about survival first and foremost.

 

BTW been unemployed, been a student, I was always overdrawn, but never charged. It can be done.

[JonCris]

Sorry advocate whilst I don't speak for the board I'm sure all opinions are welcome here but with the greatest respect I suspect you not having ever been penalised by the money lenders it appears your pontificating about something of which you no little. Also I suspect your income is such that you have little or no need for their services as your not on a fixes income. Either that or like my kids who think there is a money tree at the bottom of the garden you have yet to leave home

 

To get a feel for what this site is all about I suggest you miss a couple of DD's & then watch the charges escalate to alarming levels almost overnight. Within a few days 1 missed DD will have incurred both an unauthorised overdraft fee of between £25 & £30 plus a DD return fee of between £25 & £30. Thats a possible £60 for going as littel as £1 overdrawn. Nor does it include the receivers penalty charges which could be anything upto another £50. So in almost the blink of an eye your £1 has escalated to over £100 Now because you can't meet your other liabilities (as there not enough in the bank because the bank take their charges 1st) it escalates even further until your hundreds of pounds out of pocket & if you don't believe me ask a few others on this site

 

Your inability to understand why most people get into debt shows a lack of understanding of the world in which you live.

I have no problem with the banks or any business making an HONEST profit which the banks aren't. Also to suggest that the banks are blameless is nonsense. Of course they are as they have specificly targeted consumers on limited incomes because they know that they will be 1st to fall foul of the penalty charges thereby adding to their profits & because of bad debt tax breaks at little overall cost. After all no point in targeting the more well off is there? They like you will never go overdrawn beyond their agreed limit

 

Also as for your other remarks regarding limitation I would remind you that the concealment clause was included in the act for a reason & I suggest the reason is precisely why many are now bringing claims outside the 6 years. As to whether they will be successful we'll have to wait & see but it will be interesting period in our fight with the money lenders.

 

As for the difference in laws. Of course there are differences we all know that. but there are also many simular laws. The Common Law is a moveable feast & often a finding in Scotland will be considered by the courts in England who will make the same finding.

 

Finally I would remind you that this site is about the unlawful & reprehensible conduct of the money lenders, which you choose to defend, & is not about all of us feckless debtors

 

BTW both myself & spouse students, like you always overdrawn, unlike you charged but despite the banks constant threat to cut us off managed to get our degrees

[mackie68]

hi all,

i am at court on thursday for proof hearing, RBS have posted defence that half my claim is time barred, i will endeavour to prove otherwise using the argument (in short) that since charges are unlawful, they are a breach of contract. and therefore i have 20 years from date of last breach to claim and also can go back last 20 years since date of "enlightenment" to their breach. i have researched some documentary evidence to support my position, but any more would be more than helpful, such as prior cases where such an argument was proven etc, otherwise its on a wing and a prayer and i hope they dont turn up.

[mackie68]

RBS BOTTLE IT!!

After stating my case before court, rbs agree to settle

before submittion of evidence ( of which i had very little)

my opening argument seemed to be enough to rattle their feathers

Obviously not prepared to argue that 20 year limit doesn't apply.

i advise everyone to go for it, nothing to lose and lots to reclaim!!!!!!

[Bookworm]

mackie68, well done you!!!

[Alasdair]

I'm very interested in this 20 year limit.

 

I previously had a business and private account with the RBS from 1989 to 1993 where £thousands was charged in fees. I also had business & personal account with the Clydesdale from 1995 to 1999 again £1000's charged in fee's.

 

I don't have statements with account numbers from the RBS, but if I proved my identity and address at the time would they have to give me the information required to reclaim these charges.

 

The RBS situation ended with a bankruptcy and they received £1000's in fee's and interest when I paid this off after receiving an inheritance.

 

If its possible I would like to try recovering this money.

 

Alasdair

[7givenchy]

RBS BOTTLE IT!!

 

After stating my case before court, rbs agree to settle

before submittion of evidence ( of which i had very little)

my opening argument seemed to be enough to rattle their feathers

 

Obviously not prepared to argue that 20 year limit doesn't apply.

 

i advise everyone to go for it, nothing to lose and lots to reclaim!!!!!!

 

 

Well done, I am due to have my case against HBOS heard on 4th Feb.

At the Preliminary hearing they lodged a defense that my case was time barred.

[7givenchy]

Hi mackie 68

I had contacted one of the moderators who gave me excellent advice regarding the second hearing of my claim against the Halifax for repayment of charges from 2000. I would appreciate confirmation from anyone that I am interpreting the advice correctly and putting forward the correct argument at court on Tuesday.

 

Their defence:

I have recieved a copy of their proposed defence from the court.

Their defence is ....that the case is out of time under section 6(1) of the Prescription and Limitation (Scotland ) Act 1973 which provides for a prescription period of 5 years. i.e that the five yers 'stopwatch' started running when the charges were incurred. They'll say that a reasonable person could have known or found out that penalty charges are not lawful, and so if I had a problem with it, I should have claimed at the time.

 

My Response is :

While it true that I could have found out that penalty charges are unlawful, there is no way I could possibly have known that HBOS's charges were penalties, since they refuse to disclose how they arrive at these charges. and they strenuosly deny that they're penalties. I should argue that the that the trigger for the five year limitation was actually in June 2006, when the OFT made its statement on penalty charges.

 

Should I submit the article from Burness on the 'Act'

[JonCris]

I should add something like whilst I might have found their charges to be unlawful I in keeping with most cinsumers assumed that the bank would act with fairness and honesty in the conduct of it's business with me

[7givenchy]

Hi JonCris

 

Thanks for this

[Guest bong]

I reiterate again, these claims are not based on contract. They are rather claims for repetition under the law of unjustified enrichment. Contractual rights and obligations may set the background, but there is no remedy in contract for the consumer in relation to bank charges.

 

Perhaps you could enlighten me as to the texts or authorities you rely on to inform yourself of your belief that contract is the basis for these actions?

 

I have just discovered this thread, and have a question for Advocate on the above post.

 

I have fairly recently come across a case which I think might show that these claims are based on breach of contract; the contract which provides that the bank will return money the customer has deposited in their account when the customer issues a demand for repayment. Our preliminary letter demanding the return of money unlawfully taken from the account in penalty charges is such a demand, and is therefore our cause of action when the bank refuses to make the repayment. If this is correct, the limitation period would only start to run at this point.

 

The case is this one

 

The argument is based on the following Court of Appeal case:

 

Joachimson v Swiss Bank Corporation [1921] 3 KB 110

 

The court held that for time to start running for limitation there needed to be a demand for payment from the customer. In his judgement Atkin LJ pointed out:

 

‘The practical bearing of this decision [as to the necessity for a demand] is on the question of the Statute of Limitations … The result of this decision will be that for the future bankers may have to face legal claims for balances on accounts that have remained dormant for more than six years.’

 

 

I would be very interested to hear your take on this.

[Robertxc]

Very interesting. And logical!

[Guest bong]

Mm, problem is I can't find a full 'transcript' of the case on google. I think it is in Paget's Law of Banking which costs about £400 and my library doesn't appear to have a reference copy.

[Robertxc]

Is it an English or Scottish case?

[Guest bong]

I think (but I don't know for sure) that the KB would stand for kings bench which would mean England.