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airodek

rbs claiming six years back and the limitation act HELP!

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I have a claim against the rbs for £xxxx.00, i will not put the actual amount as no doubt cobbets, look at the postings on this site and i do not wish to be identified, cobbets have filed a defence in this case which is five pages long, i need lots of help on some points but the fisrt two points they raise are as follows:

1 The defence is filed and served without prejudice to the defendants case that the particulars of claim do not disclose reasonable grounds for bringing a claim against the claimant to recover bank charges(and interest thereone) referred to in the particulars of claim or any other sums. In the event the claimant does not particularise his claim then the defendnt will apply to strike out the claim and/or for summary judgement in respect of same. I follow the sites reccomendations and as far as i know the claim was particularised, how do i respond

 

2 Without prejudice to the non admission set out in the foregoing paragraph, if to the extent that the claimant proves the allegation that the defendant debited charges to his bank account, insofar as such chargeswere debited on a date or dates more than six years prior to the issue of this claim, any remedy in respect ofthe same wether damages, restitution or otherwise, is barred by the limitation act 1980 and/or the doctrine of laches and the defendant will apply to strike out this aspect of the claim and/for summary judgement,

i started with my first letters to the RBS on 31/08/2006, listing all charges debited to my account back to31/07/2000. i sent the schedule of charges based on these dates, and as it has taken so long to get to this point i filed my claim on 06/12/2006 but i used the original schedule and dates that i started with, what do i do?

any help would be greatly appreciated, the rest of their defence i will place on forum tomorrow

 

MANY THANKS IN ADVANCE

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This is their usual standard reply that everyone now gets. Have a look at my thread titled Natwest bank charges. I have just today dealt with this issue. Its just b****cks! Dont worry. They are stalling for time and hoping to intimidate you into dropping the claim.

 

They used the Limitations Act ploy in a letter to me received this morning. The statue of limitations does not apply if the true costs were concealed from you and you were not aware that this was a penalty charge rather than a true reflection of their costs.

 

Have a look at my thread. I am a little ahead of you and it will give you some idea of what to expect and how to respond.

 

Good luck.

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Yes sound advise there, stalling and trying to worry you into droping case.

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They used the Limitations Act ploy in a letter to me received this morning. The statue of limitations does not apply if the true costs were concealed from you and you were not aware that this was a penalty charge rather than a true reflection of their costs.

 

So does that mean the 6 year limit is nonsense in every case, as it's only recently been made more widely public that these charges are penalties rather than actual costs?

 

Seahorse

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Thats correct. The only reason we are not going back further than 6 years is because by law the banks only need to keep our records for 6 years, so even if they have them, they will deny it because they know why we want them. Some people have been really fortunate in having saved all their statements sometimes going back 20 years and so are claiming back to when the banks first started charging.

 

The banks will argue the statute of limitations but the havent got a leg to stand on.

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Oh, dear. I fear my claim may run somewhat higher than small claims will cope with then. My branch has very kindly agreed to supply 13 years worth of statements for both accounts. :eek: The first few years of which I was struggling to bring up a family on a pretty minimal wage, so Paul was doing rather well out of the proceeds of robbing Peter.

 

Seahorse

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There are lots of people of this site who have successfully claim over £5,000 and going back many years.

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Update on case against rbs:

i recieved a letter from our friends the hobbets :

we notice from the first page of your list of charges that you set out, charges between 2 october 2000 and 4 december 2000. Under the Limitation act 1980 you cannot bring a claim more than six after the date on which the cause for action acrued. You issued your claim on 6 december 2006 therefore only legally entitled to claim between the periods 6 december 2000 and 6 december 2006, as such you cannot claim for the first 15 charges listed on your schedule totalling £690.00.

 

As we now know the limitation act does not apply, how can a firm of solicitors state what is obviously a lie, can i use this or get some leverage from it? In the letter they go on to say they are willing to offer a goodwill payment of £2000.00 as full and final settlement, my claim is for £4690.00

and i am in no rush to accept their offer, what are the chances of getting a second offer before it gets to court.

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Update

i have sent a letter to cobbets declining their ridiculous offer of £2000.00 , and a copy of my charges schedule:

 

In the defence filed by cobbetts they say the following:

In relation to the case of the claimant that the charges are unreasonable within the meaning of SGSA section 15 the defendant pleads as follows:

The claimant is required to plead and prove the necessary factors (referred to in section 15 SGSA) concerning the contract between the claimant and the defendant which mean that pursuant to SGSA section 15 there is an implied term that the claimant pay a reasonable charge for the service under the contract.

 

Further the claimant is required to plead and prove (a) that the bank charges which have been debited are unreasonable (b) all facts and matters relied upon by the claimant in support of his case and © what charges would have been reasonable.

 

In the circumstances no grounds are disclosed for a claim that the defendant has acted in breach of SGSA section 15

 

It is the case of the defendant that the contract between the claimant and the defendant does not fall within SGSA section 15 because (a) the consideration for the service would be determined by the contract between the claimant and the defendant and (b) was not left to be determined in a manner agreed by the contract or determined by the course of dealings between the claimant and the defendant.

 

Does anybody know if this is relevant or just scare tactics, what am i supposed to do in response?

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More b****cks! They are askiing YOU to prove their costs!!! Write back and tell them it is THEM and not you who are to justify their costs as reasonable and fair.

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UPDATE

 

Sent copy of my AQ to SC & M following their request just before Christmas.

 

No surprises on their AQ!!

 

Have today received the following letter from Newark County Court:

General Form of Judgment or Order

To the Claimant

kazzaw

Before District Judge ................. sitting at Lincoln County Court.

EX PARTE

IT IS ORDERED THAT

The Court of its own motion is considering striking the Defence out as an abuse of process on the basis that it has settled all previous claims of this nature. If the Defendant objects to this course of action it is to file at Court within 14 days, a Schedule setting out a list of all claims it has pursued to trial and all claims it has settled.

 

Dated 28 December 2006

 

I assume they won't be sending the Schedule within 14 days so will the Judge then order them to pay up?

 

Is this happening a lot across the country or have I stumbled upon a good Judge?

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Incorporate the above in your letter. This is what another member recently received from the courts.

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Update on claim against RBS, St Helens Branch.

I need some advice on a letter i have recieved from cobbetts, my claim against the rbs is for £4616 with court costs comes to £4736.00, In an earlier letter cobbetts stated the first 15 charges on my account were not claimable as they exceeded the six year limit, the charges in question totalled £690.00,

To-day i have recieved a letter and a cheque, the letter states the same thing about the six years back and the cheque was for £4149.00 as full and final settlement. The question is: are they correct in their appraisal of this situation or is it some cobbetts tactic to reduce my claim, i am inclined to reject their offer and continue my action but if they are correct and i cannot claim for the 15 charges that go further back than six years from the date of my claim i would be better off accepting the money. Please advise

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Re my last post, Has anyone got any advice on the six year rule, does it apply to everthing or if you are unaware of something and then 8 years down the track become aware ie unlawful penalty charges, can you only claim 6 years back of eight?

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Stick to your guns. Have a look at my thread Natwest bank charges. They tried exactly the same with me. You will find my letter which I sent in reply to this. The six year rule does not apply because they hoodwinked you into believing that their charges were fair and reasonable. You have only just become aware that they are not. Dont cash the cheque.

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Airodek, write and tell them they should think themselves fortunate that you are not claiming back to the opening of the account.

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Update

having taken some advice from this site, i have decided to accept the payment of £4149.00 as an interim payment, i will continue my claim for the £690.00 they say is over six years old. i have found an interesting thread which sites Opinions of the lords of appeal for judgement in the cause Cave (respondent) v Robinson jarvis and rolf (a firm) on 25th april 2002 ukhl18 the thread is a recent one by progenic7, entitled Limitation Act 1980 s32(1),a,b,c + (2) Actual Case Law,

the question i have is can i accept a cheque as an interim payment when it has been sent as full and final settlement. an interesting point is the cheque has my name on it followed by my bank account number it seems i can only pay this cheque into the rbs account that the charges have been deducted from. is that normal?

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Normally, they just pop it straight into your account without issuing a cheque. I'd chance my arm and see if you can pay it into any other account you may have. The cashier will tell you if it will be OK, but I'd ask first.

 

As regards there payment being in full and etc, well you could always write back and tell them that you are only willing to accept it as an interim payment. Give them a reasonable time limit by which they must reply, and state that otherwise you consider no reply from them to mean that they are happy with that arrangement. Once that time has passed or they write to say they agree, bank the cheque however you decide to play that one.

 

Seahorse

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update

i decided after much deliberation to inform cobbetts i would accept their cheque for £4149,00 as part payment only and i would continue my claim for the remaining £690.00. i explained i did not agree with their interpretation of the statute of limitations and that i would let the judge decide who was right. I banked my cheque into the account indicated on the cheque and waited. After 3 days i checked my balance, and what do you know the money has dissapeared and my overdraft has been frozen. what will happen next i do not know. i will keep you informed,

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Update

i eventuall y got my £4149.00 back but refused to accept it as full and final settlement, i decided to continue my claim for the £690.00 that cobbetts say is time barred, i supplied my evidence that i intend to rely on in court to both the court and cobetts as the judge directed, cobbetts supplied nothing, all parties should have submitted court bundles before 28th march 2007. To-day 11th may 2007 i have recieved a witness statement and an application notice from cobbetts the witness statement says:

i make this witness statement in support of the defendants Application dated 5th April 2007 for an order that the claimants claim be struck out. The grounds of the application are that the defendant believes that the facts reffered to in the claimants claim do not disclose any legally recognisable claim against the defendant.

 

In the background to the claim they say

The claiment is time barred from bringing a claim of unauthorised bank charges prior to 6 dec 2000 by provision of section 5 of the limitation act 1980.

 

does anyone have any advice on how to handle this, the hearing is on 23rd May 2007

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Guest ChloeJane

Hi there,

 

The claim begins when you send your first letter off asking for the charges back.

 

Was this in December 2006? If so, then i see no logical reason for the arguement from their side.

 

Let me know when you sent the first letter to them asking for them to return the charges.

 

CJ

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My first letter was dated 26th september 2006, is there any case law that supports your interpretation of the statute of limitations or do you know of anyone who has argued his case and won.

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Yes. Natwest tried this stunt with me! I replied to Cobbetts and continued with my claim including charges outside the six years and won!

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BASIS FOR MY CLAIM

 

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

 

5 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 payments of £38 per month starting in December 1998 and my continuing payments of the balance due under the Defendant’s County Court order 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.

 

6 This argument may be illustrated by way of example. If, in July 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.

 

 

 

 

7 If the charges are time barred by virtue of section 5 of the Limitation Act (1980) then I contend that the 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 April 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.

 

8The 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 large staffs which include experienced corporate lawyers and accountants.

 

12 The Claimant holds 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.

13 In April 2006 the Office of Fair Trading published “Calculating Fair Default Charges in Credit Card Contracts” ( A statement of the OFT’s position, page 12). 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 store cards”.

 

 

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 (OFT sets threshold for intervention, page 12). 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 ordering standard disclosure. I am therefore seeking disclosure of this information as set out in paragraph 20 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 the view of generating a profit and 32(1)© of the Limitation Act should apply. 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, if the defendant did not mistakenly set the charges with the view of generating a profit, then I paid the charges in the mistaken belief that they were lawful, and I further contend section 32(1)© of the limitation act should apply.

 

17 Based on a survey undertaken by the Consumer Action Group, the Defendant has refunded charges totalling approximately £122,384 to 125 customers since January 2006. Over the same period UK banks have, according to the survey, refunded 3,230 customers, a total of £3.6m; all of these claims have been settled before a Court hearing has taken place. Since mid October I personally have received full settlement offers regarding

charges, one after issuing a court claim and the second after threatening court action (attached page 15), 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

 

18 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.

 

19 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 the full hearing in which these arguments may be considered in detail.

 

20 Accordingly I would respectfully ask the court in this case, not withstanding allocation to the small claims track, order standard disclosure, I understand it is in the courts discretion to do so, this to specifically include a breakdown of the defendant’s losses due to contractual breaches compared to the costs incurred by the claimant as a result of the breaches.

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