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20 year claim limit in Scotland

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Robert,

 

Essentially, yes. If someone has taken something from you without legal right to do so, you are expected to seek to have that returned to you within 5 years. The exception to this is where the item in question has been stolen from you, although even here there may be limits to what you can recover and from whom.

 

You cannot say the Bank has "stolen" from you, as they have taken the money in implement of a contractual term "agreed to" by both parties. This does not meet the test of "theft", at least not in the eyes of the law!

 

Bong,

 

Court would not view something as borrowing of a sort simply to aid a supplementary question on time bar. It is pretty clear that the Bank appropriated the monies through charges and it is this taking or appropriation that will determine what the legal basis is for return of the monies and the time limits within which such claims should be made.

Ok, so what if there's no way I could have known that it was taken unlawfully until say seven years later? Incidentaly, there was a case recently where one of the banks tried to have a case dismissed for going back more than five years. It was quite a well prepared defence (i.e. more than just faxed instructions to a local agent). The defender's lawyer apparently went to some lengths to outline why it should be dismissed, but the sheriff just said that prescription and limitation are at the discretion of the court anyway. Apparently he was quite dismissive of the bank's argument.
  • Haha 1

Robertxc v. Abbey - £3300 Settled in full

Robertxc v. Clydesdale - £750 Settled in full

Nationwide v. Robertxc - £2000 overdraft wiped out, Default removed by order of the sheriff

Robertxc v. Style Card - Default removed by order of the sheriff

Robertxc v. Abbey (1) - Data Protection Act action. £750 compensation

Robertxc v. Abbey (2) - Data Protection Act action. £2000 compensation, default removed

 

The opinions on this post are those of Robertxc and not necessarily the opinions of the group and do not constitute sound legal advice. You are advised to seek professional legal advice.

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Guest bong
Robert,

 

Essentially, yes. If someone has taken something from you without legal right to do so, you are expected to seek to have that returned to you within 5 years. The exception to this is where the item in question has been stolen from you, although even here there may be limits to what you can recover and from whom.

 

You cannot say the Bank has "stolen" from you, as they have taken the money in implement of a contractual term "agreed to" by both parties. This does not meet the test of "theft", at least not in the eyes of the law!

 

Bong,

 

Court would not view something as borrowing of a sort simply to aid a supplementary question on time bar. It is pretty clear that the Bank appropriated the monies through charges and it is this taking or appropriation that will determine what the legal basis is for return of the monies and the time limits within which such claims should be made.

 

Advocate,

 

I can only think of three possible scenarios for the unlawful taking of customers' monies. One is theft, one is borrowing, and the other ignorance of the law. What other interpretation can we put upon the taking of money that is not legitimately/lawfully taken? It cannot be that they thought it was merely to cover their costs because they knew of the profits involved (whereas we were not privy to this information).

 

Ignorance of the law is no defence as far as I know.

 

If we allege theft we need to be able to prove beyond reasonable doubt that this was their intent, presumably, in criminal proceedings rather than civil. I don't know if I have this correct, I think I've seen it said somewhere. It seems more creditable than borrowing but there does't seem to be a fourth definition of the taking of money that they could be expected to have known to be unlawful.

 

I don't feel I have made a very good case for the taking of money equating to borrowing but what I am trying to get across here is that if the law permits a claimant to demand repayment of money that is in the account but not money which the bank unlawfully removed from the account, and therefore should by rights still be in the account, then the claimant is being denied legal redress to monies taken from the account more than 5/6 years ago. Surely the court would recognise this? I knew it was taken, yes, and I didn't expect then that it would be returned. I do not have any proof that they intended to break the law, but had I known what I know now I would have demanded it back at the time, not 7 years later. Even if I had sought legal advice 7 years ago, without access to the banks profit and loss account the lawyers wouldn't have known that either, so on what basis could they have advised me to make a claim?

 

It may be that I am going to have to accept your word on this as final if you don't feel there is anything else you can add to what you have already given here. Sorry if I've given you a headache! I appreciate your input.

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Seahorse,

 

The Bank have not breached their contract with the customer. The contract provides an express term which states that the Bank will apply a charge of a certain amount (changes in these amounts communicated to customers periodically in the leaflets which they send with your statements but few take notice off because the print is too small and lengthy) on the customer's default. When the customer defaults, the Bank apply the charge. The Bank is not in breach, on the contrary it is acting strictly in accordance with the contract.

 

The area of law we are dealing with is not contract, but unjustified enrichment. This is related to, but distinct from contract and has separate rules and consequences.

 

Robertxc,

 

Ignorance of the law is generally no excuse, but sometimes it is :D. The case law is scant on this point, but drawing analogies from other situations where time bar arguments feature, the ability of the pursuer to seek legal advice often defeats their claim that they could not have know they had a right until some later point in time. This may seem unfair, but professionals exist to help and adise us all on matters which we know little about.

 

Having said this, it is equally not possible to state that an argument on postponment of prescription would fail, although I would put my money on the Bank's lawyers being able to put up a more coherent and convincing case against. That is their job after all.

 

As to the case you mention, I suspect this was a procedural hearing and not full legal debate involving the citation of case law and argument thereon. I do not think it is possible to draw many conclusions from this. It should also be remembered that the sheriff courts are notoriously unpredictable places. While it may not seem right, the sheriffs will not all view the same arguments the same way. The uncertainty is legendary amongst litigators, which is why it is difficult to advise clients on how best to proceed even when you are confident that the law is on your side (also depends on how good your lawyer is).

 

Bong,

 

Money can be taken or received by a defender in circumstances where there was no legal right for them to take/receive and no equitable reason why they should keep it. This kind of precision in language is necessary to ensure we know what law it is we are trying to rely on. This is what bank charge claims are based on.

 

Simply could not be theft, as the basis for the taking was a term of a contract. The Bank was therefore contractually entitled (and you as customer consented by performing the contract) to take the money, even if they are not entitled to retain it.

 

The Bank is not borrowing the money, as the contractual term states that the Bank will charge the customer. On this basis the money becomes the Bank's once they apply the charge, and the customer is indebted to the Bank, not the other way around.

 

The reason why claims are time restricted is to encourage people to seek to vindicate their rights before the claim goes stale, witnesses are not available, documents lost etc. It is a good rule IMO, as otherwise court cases would more often than now turn into farce, wasting everyone's time.

 

I have no doubt that a decent lawyer would have been able to identify that the bank were penalising people for breaching the terms of their agreement with the bank. They could then have written to the bank sounding them out, with a threat of litigation in the background. If action was necessary, they could then have drafted pleadings calling on the bank to provide the information justifying the charges and stataing that they would found on the Bank's failure to do so. This would have flushed the Banks out making them seek legal advice on the legality of their charges sooner than now and, as now, seek to settle the action.

 

The process of going to court generally involves both parties investigating their claims, looking at documents, speaking to potential witnesses. It is not until all information has been gathered that a party will be able to say whether they have a strong case when compared to the other side. This is why so many cases settle just before the court hearing (proof) is to begin. It is often too uncertain at the outset to say who is likely to win as not all information has been gathered. To this extent, all civil litigation is speculative.

 

Interesting stuff.

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Oops!


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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Sorry to butt into your thread. I have been reading this with interest for the last two weeks or so.

I currently have a claim going back more than 6 years. The return date was wed 28th march and the bank has failed to respond. The case details are as follows:

 

started Summary Action against BOS for first £1500 of claim on 14/01/07

 

Charges date are 22/12/99 to 01/09/2000

 

Return date set as 28 Feb- the bank has failed to respond

 

Handed in form 11 today(Form of minute - no form of response lodged by defender)

 

Will phone office again on Monday to check for response

 

Hearing Date 07/03/07

 

I am really surprised that the bank has failed to defend a case that in their eyes fall outside the limitations act(5 Years Scotland).

 

Has anyone else had this happen?


Advice given is purely my opinion, and is not based on any legal training.

BOS Credit Card...........................Hearing Date 07/02/07

Full Settlement..............................13/02/07

BOS Bank Account .........................total charges £8,655.92

1st offer..............................................£1620.00 01/12/06 Rejected

2nd offer.............................................£3255.00 03/01/07 Rejected

Summary Action victory.................£1499.02 22/03/07

Full and Final offer............................£7,200 19/04/07

Pict...............

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Bet they've been readign up on this Scottish "20 year claim limit" of which Robertxc made us aware.

 

I hope you're successful in your claim. Will be thinking about you on teh 7th.

 

Let us know how a claim for further back goes: ineresting. :-)


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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pict,

 

I too have been following the thread with interest, and I am greatly encouraged by your situation.

 

I started Small Claim Action against Bank of Scotland for period 12/01/2000 -13/07/2000 Hearing Date was 13/11/2006.

Bank defended the action - their defence being that it is time barred under Section 6.1 the Prescription and Limitation (Scotland) Act 1973

Case adjourned until 6th February.

 

At the hearing on the 6th Feb the judge listened to my defence and questioned me for more than an hour as to why I had not challenged the charges at the time, and indeed why I had allowed my account to become overdrawn on so many occassion. I quoted the article from Burness I told him that other claims over 5 years had been successful. He asked me to supply details of these cases, before the next hearing I submitted the statement from the OFT, which he said had no legal bearing. He said he could not make a decision at that time as the case had raised a number of legal issues. He advised me to prepare a much more legally based defence before the next hearing which is set for 6th April .

 

Your situation is looking favourable and I look forward to hearing what the outcome is.

 

I would be interested to know what your response would have been if they had defended the action

 

Very best of luck!!!

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Update.......

Phone the sheriff's clerk today(Tuesday) and the HBOS has still not submitted a defense.

I'm off to court tomorrow to see what happens.

I'll post an update tomorrow.......


Advice given is purely my opinion, and is not based on any legal training.

BOS Credit Card...........................Hearing Date 07/02/07

Full Settlement..............................13/02/07

BOS Bank Account .........................total charges £8,655.92

1st offer..............................................£1620.00 01/12/06 Rejected

2nd offer.............................................£3255.00 03/01/07 Rejected

Summary Action victory.................£1499.02 22/03/07

Full and Final offer............................£7,200 19/04/07

Pict...............

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Good luck Pict.

 

To which pictish tribe do you belong? ;-)


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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Well, having read all the arguments here, I'll run them by my solicitor to see what he says. If he is unhappy, then I think I'll have to forget going after the charges pre-5 years ago. If I can't convince him, I don't think I have a cat in hells chance of convincing a judge.

 

I'm having to go ordinary cause, so I don't really have much choice about using a solicitor. But to be honest, it does make me feel more secure being in professional hands.

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Hmmm, I too am feeling shakey about this 20 year claim. I'll be extremely glad when Robertxc comes back on to clarify the situation.

 

Didn't Mackie win her/his case on the "20 year claim" basis? Somebody did and stated that they'd just bluffed it.

 

Can anyone clarify the situation, PLLLLEASE?


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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Thinking of you today, Pict. Will be there with you in spirit as will, I am sure most others on this board.


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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Seahorse,

 

The Bank have not breached their contract with the customer. The contract provides an express term which states that the Bank will apply a charge of a certain amount (changes in these amounts communicated to customers periodically in the leaflets which they send with your statements but few take notice off because the print is too small and lengthy) on the customer's default. When the customer defaults, the Bank apply the charge. The Bank is not in breach, on the contrary it is acting strictly in accordance with the contract.

 

The area of law we are dealing with is not contract, but unjustified enrichment. This is related to, but distinct from contract and has separate rules and consequences.

 

But it is ME who has broken the contract by bouncing a cheque, going overdrawn or whatever. And I have only now become aware of the unlawful penalties that have been applied for doing so. So surely contract law still applies?

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Just returned from court.

We have been granted a decree and will receive the extract on the 22nd March.:)

Thanks to everyone who has helped me get through this. Lets hope nothing else happens and they pay up.


Advice given is purely my opinion, and is not based on any legal training.

BOS Credit Card...........................Hearing Date 07/02/07

Full Settlement..............................13/02/07

BOS Bank Account .........................total charges £8,655.92

1st offer..............................................£1620.00 01/12/06 Rejected

2nd offer.............................................£3255.00 03/01/07 Rejected

Summary Action victory.................£1499.02 22/03/07

Full and Final offer............................£7,200 19/04/07

Pict...............

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Just to update everyone, I've decided to seek a definitive (or as definitive as it gets) opinion on the limitation rules. This is going to take a couple of days.


Robertxc v. Abbey - £3300 Settled in full

Robertxc v. Clydesdale - £750 Settled in full

Nationwide v. Robertxc - £2000 overdraft wiped out, Default removed by order of the sheriff

Robertxc v. Style Card - Default removed by order of the sheriff

Robertxc v. Abbey (1) - Data Protection Act action. £750 compensation

Robertxc v. Abbey (2) - Data Protection Act action. £2000 compensation, default removed

 

The opinions on this post are those of Robertxc and not necessarily the opinions of the group and do not constitute sound legal advice. You are advised to seek professional legal advice.

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Looking forward to clarification on this, Robert,


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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I've been haring round, trying to find the equivalent section of the Prescription and limitation act (Scotland) 1973 (as amended) to S.32 of the Limitation Act 1980 all night.

 

Am I correct in thinking it is Section 11(3) as outlined in this case report?

 

"Prescription"

 

There are exceptions to this rule that apply in similar terms to the law in England and Wales. For example, Section 11(3) of the Act provides that where the creditor was not aware, and could not have with reasonable diligence been aware, that loss, injury or damage had occurred, the starting date for the running of time shall be the date when "the creditor first became, or could with reasonable diligence have become, so aware".

 

From paragraph 4.


18/11/2006 Recieved Statements from Barclays.

20/11/2006 Sent Prelim for return of £575.

27/11/2006 Received offer of £290.

4/12/2006 Sent LBA.

8/1/2007 Filed Small Claim at court.

12/02/2007 Full settlemant from Barclay's.

12/02/2007 LBA sent to Mint.

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Just to let everyone know, there is now a copy of the Prescription & Limitation (Scotland) Act 1973 available in th statutes forum, which is accessed from the forum home page.


Robertxc v. Abbey - £3300 Settled in full

Robertxc v. Clydesdale - £750 Settled in full

Nationwide v. Robertxc - £2000 overdraft wiped out, Default removed by order of the sheriff

Robertxc v. Style Card - Default removed by order of the sheriff

Robertxc v. Abbey (1) - Data Protection Act action. £750 compensation

Robertxc v. Abbey (2) - Data Protection Act action. £2000 compensation, default removed

 

The opinions on this post are those of Robertxc and not necessarily the opinions of the group and do not constitute sound legal advice. You are advised to seek professional legal advice.

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Excellent stuff, many thanks Robert. So it's S.6(4)(a) then?


18/11/2006 Recieved Statements from Barclays.

20/11/2006 Sent Prelim for return of £575.

27/11/2006 Received offer of £290.

4/12/2006 Sent LBA.

8/1/2007 Filed Small Claim at court.

12/02/2007 Full settlemant from Barclay's.

12/02/2007 LBA sent to Mint.

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Many thanks Robert

 

I think Section 9 has some bearing on my situation

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Thank you Robert. Will check it out.

 

Got the Vic tomorrow am so maybe tomorrow afternoon. :-)


Vital spark v Lloyds Tsb

2nd November 2006: 1st letter, requesting back statements, hand delivered to lloyds TSB: got receipt.

I have received the information on my accounts going back 6 (six) years but not going back to the begining of my hsitory with the bank, as I requested.

Think I'd best send a letter suggesting they send the lot and informing them that I have already paid the £10 for such information.

Mairi's awaiting my details so that she can help me work out the interest due on the charges taken.

 

Personal: growing and changing while ever remaining the same. Get to know me and tell me what I'm like coz I can't figure me out.

 

Quote: If you can't beat them, confuse them.

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Seahorse,

 

Your breach of contract is the trigger for the imposition of the charges. As a pursuer seeking return of these sums, you have to have a legal basis. You cannot cite your own wrongdoing as a justification for receiving a benefit (generally, the law does not allow a person to profit from their own wrongdoing).

 

The legal basis here is that the Bank has been unjustifiably enriched by the imposition of charges based on a clause of the contract which, if unlawful, would be unenforceable. This being the case, the Bank have money taken in circumstances where they had no legal power to take it and there is no good equitable reason for them to retain it. This is the law of unjustified enrichment.

 

Everyone else,

 

The relevant section of the 1973 Act is indeed s.11(3). s.6(4)(a) deals with postponement of the period where there has been fraudulent activity by the Bank, or the Bank has induced the customer into error as to their right to claim. There has been no fraud or error (as defined in law)in this situation, therefore the section has no bearing.

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So by imposing their assertion that their charges are lawful on the customer (else, by not accepting the charges, the bank would not accept the customer), the bank has not induced the customer into error? Or by further stating after a claim has been made, they are STILL not inducing the customer into error? Is that what you are saying.

 

I'm not saying you are wrong, by the way. I am merely trying to make sure I have everything clear in my head, as I have no doubt this is going to go all the way in Ordinary Cause, and I need to have all the arguments for and against before I make a definite decision. Appearing stupid in front of the judge will have very expensive consequences if I get it wrong. And I firstly need to convince my solicitor too.

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Seahorse,

 

If you had challenged the Bank some time ago regarding the legality of the charges and they had represented to you that, for example, they had cleared the nature and amount of the charges with the FSA and/or OFT. This may amount to a misrepresentation inducing you into error as to your right to make a claim.

 

The fact that they impose the charges does not of itself induce you into error in the sense the term is used in 6(4). It is certainly possible to make an argument along the lines you imply, but I see stronger arguments against and in a litigation situation, while it is possible, and perhaps wise, to have various arguments to support your case, these takes time to formulate and argue and time is money, especially when your solicitor costs £250 an hour!

 

Once your claim has been made (you have a summons served on the Bank), you are regarded as having made a relevant claim (see s.9) which stops the prescriptive clock, so what the Bank says following this is pretty much irrelevant to the question of prescription.

 

Your solicitor will not require much convincing of the prescription point and, if he/she is any good, they really ought to advise you to try to push the boundaries. However, they should also make you aware of the dangers here. The Bank have deep pockets and, were you to push for too much and win in the sheriff court, the Bank may keep you in the appeal courts for years. They can afford to do that, you cannot. It is a game, just remember Jarndyce v Jarndyce and sometimes taking your gains/cutting your losses is the smartest thing to do.

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