Six Years and all That Jazz

[maranatha]

Forgive me for starting a new thread on this issue but the existing one

seems to have got a little diverted.

 

This is all about the Statute of Limitation on Claims.

 

First Question - has it been decided when the six years start?

 

Obviously the banks will argue that it's the date of the debit entry, e.g. the date of their charge. This takes us back to 31 December 2000.

 

Others will argue that it is six years from the date that the claimant became aware of the illegality of the charge. What are the arguments for this?

 

Others will argue it is six years from the date that I let them know that I am about to claim? Comments Please ??

 

Second Question - even if the courts decide for the first date above, then we might still argue under s32 that the date doesnt count as the banks have deliberately withheld information etc. Has anyone to date won this argument under s32 ??

 

OK - let's try to keep discussion to these items and see where the thread goes.

 

Out of interest, I've just received (after 44 days) six years of statements. I'm about to give them 10 more days grace to come up with the rest.

 

Thanks and happy and prosperous new year.

 

Maranatha

[Glenn UK]

Forgive me for starting a new thread on this issue but the existing one

seems to have got a little diverted.

 

This is all about the Statute of Limitation on Claims.

 

First Question - has it been decided when the six years start? yes, it starts from the cause of the action

 

Obviously the banks will argue that it's the date of the debit entry, e.g. the date of their charge. This takes us back to 31 December 2000.see above

 

Others will argue that it is six years from the date that the claimant became aware of the illegality of the charge. What are the arguments for this? see above

 

Others will argue it is six years from the date that I let them know that I am about to claim? Comments Please ?? see above

 

Second Question - even if the courts decide for the first date above, then we might still argue under s32 that the date doesnt count as the banks have deliberately withheld information etc. Has anyone to date won this argument under s32 ?? As far as I am aware no one has won in court in respect of Sec 32. But then of course there are very few instances, if any where cases have actually ended up in a hearing with both parties present irrespective of age of the charges.

OK - let's try to keep discussion to these items and see where the thread goes.

 

Out of interest, I've just received (after 44 days) six years of statements. I'm about to give them 10 more days grace to come up with the rest. There is no reason to give them more time unless it suits you to do so. Have you written to them with a LBA yet?

I would suggest that you submit a claim in court and complain to the ico if they dont come up with the goods.

 

Thanks and happy and prosperous new year.

 

Maranatha

 

HTH

 

Glenn

[maranatha]

Glenn

 

You say

 

Yes, it starts from the cause of the action

 

Are you able to say how this is justified and what law u rely on please ?

 

Maranatha

 

[Rooster-UK]

Hi Maranatha.

 

Glenn's answer to your original post is based on opinion and experience. Like me, he is not a lawyer nor a student of law.

For a specific point of law, he could probably find the information you are asking for, but as this is a SELF-HELP FORUM, why don't you do the Google Search.

 

Regards, Rooster.

[meagain]

The answer is ambiguous. The question was "A or B" and was answered "Yes."

 

As far as I am aware (ICBW), it is from the time you become aware of the cause of action. If you discovered that the charges were unlawful today, the clock starts ticking today. The banks will argue that you were made aware of the charges at the time they were made, however, you can argue that the bank clearly gave the impression that they were authorised to make the charges in the first place (if you're lucky enough to have a bank that writes to you, the letters make no bones about their "right" to do this).

[Glenn UK]

FWIW

 

You also have to overcome the fact of your ignorance of the law.

 

what i mean by this is that not only will the banks argue that you knew of the charges since they told you about it in your T&C, it appears on your statements and they may have writtent to you about it, they will also argue that you cold reasonably have found out about the unlawfulness of the charges had you decided to ask someone for their view.

 

It may not be a palatable thought, but i suspect this is an argument that would be made.

 

The limitations act says something along the lines of 'when the claimant became aware of or could reasonably have discovered ..'

 

reasonableness is always something that has to be determined by the court.

 

The issue of their concealement would imho be more pertinent to a Sec32 claim rather than the use of the OFTs announcements.

 

There is also the stronger argument IMHO, that they made a mistake believing their charges to be lawful and we made the same mistake. Its unlikley they will deny the mistake if the charges are deemed unlawful by a court.

 

Of course like all good 'legal wannabees' id use all the arguments and let the court pick the bones out of it.

 

JMHO

 

Glenn

[elsinore]

they will also argue that you cold reasonably have found out about the unlawfulness of the charges had you decided to ask someone for their view.

 

 

But by doing that, Glenn, would the banks not be giving credence to the whole concept of unlawful charges?

 

Elsinore

[Glenn UK]

Not at all what they say is that if the charges are deemed unlawful (which they don't accept) then you had the chance to discover their unlawfulness yourself you could have found out about them at the time, they are statue barred and this would limit their liability cost wise.

 

If they failed to get the six year limit imposed by failing to use all arguments then their liability would be significantly larger than it is now, probably several orders of magnitude bearing in mind the potential for contractual interest.

 

I dont even think they would need to argue this at a hearing for unlawful charges that were older than six years, they would appeal which would suspend the action fo the 1st hearing until such time as the appeal was heard.

 

Of course this presupposes that a bank will step into court at some time.

 

The way things are at the moment as i have said many times before the cost benfit analysis has not swung far enough to the consumers favour to make the exercise potentially finacially worthwhile.

 

JMHO

 

Glenn

[elsinore]

Six years ago (fifteen years ago, in one case) I had no reason to look anywhere to discover my bank’s unlawfulness. My bank is one of the major, four, High St Banks and as such was then perceived, by me anyway, as being above reproach. I didn’t like being charged £27.50 per item (I very much didn’t like it) but I believed then that they had a lawful right to impose it. I relied on them as my fiduciary to carry out their duties lawfully and in my interest. That relationship continued until eight months ago.

 

When I complained (six years ago) to my manager that the charge was excessive for an automated decision plus one letter, was she not practicing concealment, on behalf of her employer, by defending it?

 

Elsinore

[Glenn UK]

Six years ago (fifteen years ago, in one case) I had no reason to look anywhere to discover my bank’s unlawfulness. My bank is one of the major, four, High St Banks and as such was then perceived, by me anyway, as being above reproach. I didn’t like being charged £27.50 per item (I very much didn’t like it) but I believed then that they had a lawful right to impose it. I relied on them as my fiduciary to carry out their duties lawfully and in my interest. That relationship continued until eight months ago.

 

When I complained (six years ago) to my manager that the charge was excessive for an automated decision plus one letter, was she not practising concealment, on behalf of her employer, by defending it?

 

Elsinore

 

To prove concealment you would have to prove they knew the charges were unlawful, and there lies the rub, proof, even only on the balance of pr abilities needs us to show that someone somewhere int he organisation actively concealed the facts about the unlawfulness of the charges. It wont as far as i can tell be sufficient to simply say they should have known, you need to find that evidence that they knew.

 

At least this is the conclusion i am coming to about the whole issue of the whens and whys relating to the limitations act.

 

As i have said before the limitations act is only relevant when the charges are deemed unlawful, then its a done deal based on both theirs and our mistakes, matters not whether they concealed the charges or not because they wont admit they did they therefore must admit they made a mistake IMHO.

 

Glenn

[elsinore]

To prove concealment you would have to prove they knew the charges were unlawful, and there lies the rub, proof, even only on the balance of pr abilities needs us to show that someone somewhere int he organisation actively concealed the facts about the unlawfulness of the charges. It wont as far as i can tell be sufficient to simply say they should have known, you need to find that evidence that they knew.

 

Agreed. I wouldn't mind going in on that basis though, were it not for the cost implications.

 

It sure needs a lot more thought, discussion and input from others like yourself, before I take the plunge.

 

Elsinore

[maranatha]

Several points arise in these last two posts.

 

Firstly elsinore, I love the reasoning. If I am relying on an interpretation of s5 to mean "When I became aware of the [possible] unlawfulness of the charge" then I could probably argue that the date was when the BBC did the TV programme. [6 years starts now]

 

[if s5 means 'date of charge' then 6 years takes us back to 2001 BOO - HISS]

 

 

Glenn, you're probably right about the difficulties in proving concealment of unlawfulness of original chrges and that is why it might be wiser to concentrate on a s32. "They are now concealing the true cost of the default"

 

I'll probably attack in a particular order:

 

1.1 Try the section 5 - "when i became aware...."

(as you say, "unlawfulness" may have to be proved first in which

case we need to go to 2.0

 

1.2 Try s32 - "They havent disclosed true costs"

 

2.0 - The action proper - were the charges lawful or not.

 

3.0 - The question of interest / contractual compounded/ contractual / or 8% CCA

 

They may well settle out of court for the lot - We're talking around 1.8K with interest.

 

Take care

 

Maranatha