Tumble v Natwest ** WON **

[hedgey06]

You're entirely welcome Tumble............... can't see you getting a congratulations from Nat West though mate.......... Lol!!!!!!!!!!!

[crashbandicoot]

Mucho congratso tumble!!

[Parkvale]

Nice one Tumble

[tumble]

Strike out denied :

 

Attended St Helens county court today with Judge Peake .

 

Natwest had paid out £2066 in charges but claimed that six charges amounting to £333.76 were time barred claiming section 5 of the limitation act. I chatted with the barrister prior to the hearing who stated she was from kings chambers , I did not feel intimidated or threatened as I felt I was well prepared , I had recieved help and guidance from Hagenuk and Paul Waltons thread was invaluable . I had written to the judge prior to the hearing and also forwarded a copy to Cobbetts.

 

Case no 6QZ84563

Dear Honourable Sir,

I Refer to the above case , in which the defence failed to meet the deadline set by the court for an amended defence. I am concerned that in the late defence which followed that a strike out has been requested on the grounds that part of my claim is time barred. I believe the defendant is behaving in an intimidatory manner I.e . issuing CPR18 request to a lay person on a small claims track and constantly using delay tactics . I have conducted some research which would indicate that the use of the limitation act could be challenged with reference to sections 32 .1.b or 32.1.c .

 

1) .... 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.

I would respectfully request that this application to strike out be denied and proceed requesting standard disclosure of how each charge is calculated.

The judge referred to my correspondence throughout the case and pointed out the issue of the cpr 18 request by the defendant , he did not appear to approve.

 

The judge emphasized the cost implications of proceeding to a full hearing and commented that it was to my credit that I was not at all detered by this point. This I understand is that should I not produce a sound case with solid legal arguments could leave me liable for costs. Then in the case of an appeal should I win would leave me open for a sure appeal by the banks.

 

The judge stated that the banks had not concealed anything as the charges are very clear but pointed out that without exeption each and every claim had been settled prior to court hearings. I referred to the whistleblower programme which he stated he was aware of.

 

I moved on by stating that I mistakingly held the bank in high regard as my fidicuary and considered them to be upstanding which they are not proving to be , I therefore made a mistake in paying charges as have the majority of the country. The alleged lawfulness of the charges was not highlighted until April 2006 and through subsequent press releases and television programmes.

 

I later stated that it was my understanding that the limitation act is designed to prevent claimants bringing stale claims where the defendant might no longer have access to witnesses and other evidance, this is not the case and with my particular bank records are held from 1992.

 

The judge advised he would be happy to adjudicate on the matter and advised the defence to amend the amount of the claim to the £333.76 and arranged for a new hearing date on 8 June . He has given fourteen days for evidence and a skeleton argument to be prepared. However I was warned of the consequences of such a hearing and the judge has advised I seek formal legal advice as it would be seen as a test case.

 

However do we really think the bank will attend ? Any advice appreciated

 

Thanks

TUMBLE

[tumble]

The case will deal soley with the limitation act

[crashbandicoot]

OMG tumble, YOU ROCK!!! This, I will be watching with interest. Chances of the banks turning up for what the judge has specified may end up being a test case....NIL.

[jolly_armadillo]

That is really fantastic news tumble. Well done for handling court so well.

 

I dont understand though how the case can now be solely to decide the limitations act without deciding the lawfulness of the charges. Even if the hearing is solely to discuss charges pre 6 years surely once it is decided you may argue the limitations act the charges issue has to come into it, without the charges issue you cannot show concealment or mistake ?

[tumble]

I know its tricky and thats what today was about, the limitation aspect of the claim as they have already paid out part of the claim. The barrister stated that this was the first claim she had come across that had not been struck out at the application stage.

 

Too be honest im no expert , I just take advice and listen to people with more knowledge than I have and apply it accordingly.

 

TUMBLE

[mcuth]

Again, nice work Tumble - now you've got permission to continue, I reckon NatWest will settle like a normal charges claim (I'm thinking that's the same as will happen with my RBoS case that's up for a LA hearing at the end of the month)

 

The judge stated that the banks had not concealed anything as the charges are very clear

 

Moot point, but for ref for others - the judge interpreted that slightly wrong - the argument isn't that they've concealed the charges, but that they've concealed the nature of the charges - as in, they've always maintained they're lawful/for a service/not a penalty.

 

Cheers

 

Michael

[Guest bong]

tumble well done. let's pool resources to make sure you get a brilliant skeleton argument prepared, but I suspect they will settle and claim it won't be worth their legal costs to defend the action.

 

I'm surprised that the judge would make such a statement about the bank not concealing anything. Presume that wasn't a "judgement" that you're gonna have to deal with in the next round?

[Parkvale]

Tumble , You are a true warrior. The limitations argument is slowly being eroded through the bravery of people like yourself. Michael has made a very valid point.

Keep us posted . Well done.

[tumble]

Thanks , The judge, I feel in his statement about the concealment aspect was being more cynical than anything else. You know like £35 is £35 , thats how I interperated it. He has basically given me the opportunity to advance the argument by not striking it out. He was keen for me to get legal representation for the next stage. I forgot to mention that legal costs were deferred until the next hearing . In all honesty I think its all quite bazaar . I asked the judge that in the meantime should I get a cheque "without prejudice" before the hearing , would an application for costs on my part be considered . The answer was "it would be considered"

I will out of principle pursue this claim and would be grateful for input .

Once my skeleton / evidence is complete can I apply for costs to prevent them simply posting out a cheque for £333 two days before the hearing.?

 

Thanks

 

Tumble

[Guest bong]

I think tumble that if they do wait that late before settling you should let them know that you will be seeking your costs, giving them an opportunity of paying them or threatening that you wont be cancelling the hearing because there is still the issue of costs to consider. Make sure you keep a note of all time you spend and have spent on this, itemised with what you were doing, and any expenses you incur such as ink & paper.

 

I think as far as concealment goes we already have them on that. They've continued to conceal the unlawful nature of their charges merely by defending all these claims - their argument that it's a service charge (disguising the penalty) is concealment. You dont need to show that it was happening when the charges were taken, concealment now is as good as concealment throughout. There's case law for it I believe.

[tumble]

Yes but Bong they havent defended any claims in court as yetr. They are all settled without prejudice and/or gestures of good will. The judge in this case did say to the barrister that payment amounts to admission and this was her reply.

Any direction to case law would be great. The onus now falls on me to argue why the limitation act should not be applied with regard to section 5. I need case law and evidence.

Thanks

Tumble

[Guest bong]

I'll get back to you on that later tumble.

[tumble]

Thanks Bong , all hands on deck would be great !!!!!!

[alanfromderby]

If it is any help, this is what I included in my witness statement against Bristol & West:

 

44 As I only became aware during February 2006 that the charges debited were unlawful, then I hold that section 32(1)(b), or section 32(1)©, of the Limitation Act 1980 should apply, and that therefore, all of the charges debited fall within the primary limitation period.

 

45 In support of this contention, I would note that I am a lay person with no legal training or expertise, and could not be expected to have the legal knowledge, or the necessary internal financial information, to question the validity and lawfulness of the charges that have been applied to the account.

 

46 As previously noted I learned that these charges were unlawful during February 2006, after media publicity was given to a legal claim regarding the legality of bank charges. This led me to make further investigations, and seek advice through the Consumer Action Group website, and other Internet based legal sources.

 

47 I would also cite again the statement made by the Office of Fair Trading dated 5th April 2006, which affirmed that charges levied by Credit Card Companies were disproportionate, and likely to be unlawful. The report also contained the view that, “The broad principles set out in this statement are likely to be relevant to other default charges in standard agreements with consumers, such as those for mortgages, store cards and bank accounts.”

 

48 The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ a large number of staff, including experienced corporate lawyers and accountants.

 

49 As a company regulated under the Financial Services Authority, they have agreed to abide by the Principles for Businesses, as outlined in Chapter 2, of the FSA Handbook:

1. Integrity - A firm must conduct its business with integrity.

2. Skill, care and diligence - A firm must conduct its business with due skill, care and diligence.

3. Management and control - A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.

4. Financial Market Conduct - A firm must maintain adequate financial resources.

5. Market Conduct - A firm must observe proper standards of market conduct.

6. Customers’ interests - A firm must pay due regard to the interests of its customers and treat them fairly.

7. Communications with clients - A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.

8. Conflicts of interest - A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.

9. Customers: relationships of trust - A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.

10. Clients' assets - A firm must arrange adequate protection for clients' assets when it is responsible for them.

11. Relations with regulators - A firm must deal with its regulators in an open and cooperative way, and must disclose to the FSA appropriately anything relating to the firm of which the FSA would reasonably expect notice.

 

50 This document is produced under the powers given to the FSA within the Financial Services and Markets Act 2000, and provides a benchmark by which financial companies should operate within the United Kingdom. Paragraph 9, places a duty on companies to “take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment”. I contend that banks fiduciary responsibility is encapsulated in law, and therefore if such a regulated company informs a customer that it is entitled to levy a charge against an account, it would be reasonable to expect the account holder to believe that the actions of the bank are lawful, and that the charge does relate to it’s internal costs, as they continue to contend is the case.

 

 

51 Clearly, at some point the Defendant must have made a business decision to apply a charge to a customer account, where a breach of contract took place, which was either disproportionate to the banks actual losses for that breach, or that did not take into account their actual costs for that breach.

 

52 In making such a decision, it would reasonably be expected that a company operating in such a position of high trust and fiduciary responsibility would have taken legal counsel when making that decision.

 

53 I contend that if the Defendant did take legal counsel on this issue, then it has made a decision in the full knowledge that the said charges were unlawful, and that they have deliberately concealed this fact from their customers, and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

 

54 I contend that if the Defendant did not take legal counsel on this issue, then they did not operate with the reasonable diligence that would be expected of an experienced fiduciary, and that their failure to seek such legal counsel at the time should have been declared when the bank did eventually seek legal counsel, and that by not making such a declaration the Defendant has continued to show deliberate concealment and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

 

55 I contend that if the Defendant did not take legal counsel on this issue, and are genuinely unaware that the said charges are unlawful, and that the court does not uphold the Claimant’s view that section 32(1)(b) of the Limitation Act 1980 should apply, then the Claimant holds that section 32(1)© of the said Act should apply.

 

 

In hindsight, I would make sure that your arguments emphasised that the "concealment" is in regard to the actual costs incurred by the bank, and that the "mistake" argument would need to highlight that the bank had made a mistake in calculating the charges due to their misinterpretation of the legislation.

[tumble]

Thankyou Alan. Ill study this a bit closer later.

[Guest bong]

In hindsight, I would make sure that your arguments emphasised that the "concealment" is in regard to the actual costs incurred by the bank, and that the "mistake" argument would need to highlight that the bank had made a mistake in calculating the charges due to their misinterpretation of the legislation.

 

Alan, I have heard it said firstly that s.321c is there as a remedy for the claimant to make a case for having made a mistake, rather than the defendant, and so this could be construed as a misinterpretation of the Act, and secondly, it would be nigh on impossible to make a case that the bank was mistaken. I think it was Paul Walton v RBS where the barrister raised this in court.

 

I think it is far easier to make case out of the fact that you the customer made a mistake in believing the charges not to be penalties when you paid them. how would they defend that one? In my case they defended on the basis that I couldnt have been mistaken because the charges weren't penalties, which they then obviously had to concede on, without entailing a trial to define whether they were penalties. I can't think of any other way they could defend this argument, unless they want to show that ofcourse we knew all along they were penalties!

[MARTIN3030]

Well done Tumble.

I have appeared in front of the same Judge twice and on both occasions was in the room alone after settlement.

He is a no nonsense guy and takes time to explain everything clearly.

Whether or not they settle I will gladly come with you to Rexmore House.Its been a place Ive been frequenting quite a lot for the past 8 months !!

There is no doubt you will be armed with a good response from CAG.

[tumble]

Yes I agree , he was no nonesense quite imposing character !!! He did keep stressing about "proper legal representation" . He kinda shrugged off the point that I was a litigant in person, as if this would have no relevence at the forth coming hearing. Oh hells bells ive got some work to do havent I !! Regardless of whether Natwest pull out I still have to prepare and present my arguments. If I have to attend court I will definately give u a shout.

 

Tumble

[alanfromderby]

Alan, I have heard it said firstly that s.321c is there as a remedy for the claimant to make a case for having made a mistake, rather than the defendant, and so this could be construed as a misinterpretation of the Act, and secondly, it would be nigh on impossible to make a case that the bank was mistaken. I think it was Paul Walton v RBS where the barrister raised this in court.

 

 

I think it is always worth asking the question - especially when the law may be open to interpretation. I have to say personally that I believe it was put into the Act as a safeguard from mistakes by either party - and would wish to see case-law to back up the view that it does not.

 

It is also important to remember that the issue of bank charges is totally different from most other situations.

 

In 99.9% of contracts, the customer has a choice about whether to pay - and makes the decision based on whether the invoice / DD notification / quotation / offer is reasonable.

 

In the case of bank charges the money is just taken from the account without any option being given to the customer as to whether they agree. In this case I would not see that the customer could make a "mistake", the duty of care must surely rest with the bank.

 

Without clear case-law to the contrary, I do believe that any argument is worth deploying - providing that it is not the ONLY argument that you have in your armoury.

[MARTIN3030]

I think the Judge may have actually been trying to tell you to get it absolutely right since there have been many cock ups at this court with ppls claims.

We have also seen Citicards whinging about templated claims from websites and who have no understanding of the legal process.(although the Judge was not really interested)

In my view this would be the real reason for the little chat as opposed to him being against your claim in principle.

and lets be honest......its unheard of in St.Helens County Court until recently for a defendant to bring a case without being aided by a solicitor !!!

[Guest bong]

In the case of bank charges the money is just taken from the account without any option being given to the customer as to whether they agree. In this case I would not see that the customer could make a "mistake", the duty of care must surely rest with the bank.

 

I would say it would be reasonable to argue that you gave your authority to the charges being debited when you signed the contract, presuming that they were lawful, and that you would not have done (and so you failed to challenge the charges when they were debited) had you known that they were penal.

[paulwlton]

The case will deal soley with the limitation act

 

 

And hopefully the legality of the charges. Surely a prerequisite to deciding on concealment is to decide wether the charges are lawful.

 

Paul