Advice please re withdrawing a claim

[marcopolo]

I have had a prelimianry hearing at which the DJ has refereed the case back to the DJ who made the order. Most of the charges predate the 6 year rule and I have tried to use the S32 argument of the Limitation Act. I have a further hearing on the 30th January to argue this point. If I decide to withdraw my claim does that leave me liable for costs from the otherside?

[Glenn UK]

what order was made and when you argued sec 32 what did you argue and how?

 

And in anser to your final question possibly, you need to give a lot more info about whats gone on for anyone to give you any better info imho.

 

Glenn

[marcopolo]

Thank you Glenn, Order as follows

 

.... DJ XXXXXXXX considering the action may be statute barred (not withstanding the contention raised by the Claimant in his reply to the Defence that Section 32 Limitation Act of 1980 applies)

 

IT IS ORDERED THAT

 

The hearing be ajourned until the 30th Jan 07 before (the original DJ requesting prelimanry hearing) only with a time estimate of 45 mins (and the Defendant may, if so advised, seek and Order sticking action on the basis that this action is statute barres.

 

Cost reserved

 

I argued that Lloyds being a big bank would have known that they acted illegally and dilberately concealed this fact from me but the DJ was not buying any of it.

 

I am nervous of proceding but if I stand to have to pay the other sides cost regardless I have nothing to lose

 

ANy advice appreciated.

[Guest NATTIE]

I think I will bump this one up for people.

[Glenn UK]

Marco

 

I have some thoughts on this but need to understand the state of your claim ie if you have settled for some charges details of your particulars of claim, what the defence have submitted, your response.

 

Have you got a thread with all this info posted ?

 

Ill going to send a pm to some members i think may be able to help on this issue too, see if they have any ideas.

 

Glenn

[marcopolo]

No discussion re mercantile at all, focused on the S32 issues, Counsel had no instructions on this, and no one behind, so could not move to strike out. The DJ said that he would never have ordered a prelim but would have struck out immediately and could not understand the reasons for the hearing. This is why he ordered that the case be adjourned to be heard in front of the judge who ordered the preliminary hearing. The impression I had was that the DJ was not convinved and felt my claim was statute barred. I guess I have a further opportunity to fight this one, but if I risk cost when I could withdraw now and not have any further cost ordered then I might. As previously any advice gratefully accepted.

[Glenn UK]

is this a small claim?

 

If so costswhatever happens are extremely unlikley to be awarded, unless someohjeow you have been unreasonable, simply making the claim doesnt make you unreasonable

 

Glenn

[marcopolo]

Thank you for this, I am busy reviewing case law where S32 applies. However does withdrawing my claim leave me exposed? What about proceeding forward with a case that is on first glance is statute barred (although I think there are some arguments against this)

[Glenn UK]

As i understand it costs can be awarded where the court thinks that a party has been 'unreasonable'. I believe this is subjective and down to the individual court.

 

Withdrawing just before a hearing could be construed as unreasonable unless you have a good reason.

 

But since we dont have the hostory of your claim its difficult to know what to say.

 

Glenn

[PhantomReclaimer]

 

I argued that Lloyds being a big bank would have known that they acted illegally and dilberately concealed this fact from me but the DJ was not buying any of it.

 

 

The problem is that you have to produce some evidence of that to the Court. I would produce the transcript to the interview with the ex-chief exec (I think it was) of Lloyds who said that charges were not designed to cover costs but were actually to subsidise free banking for the rest of their customers. That's certainly evidence that the true nature of the charge was concealed from you and/or you were decieved into paying it.

 

Also, Sec.32 provides for relief from the 6 year rule if the charge had been paid by mistake, and not only due to fraud or concealment. You paid the charges believing that they were to cover costs you incurred the bank - which is what you were always told by the bank - and given that it clearly is grossly excessive then you paid it mistakenly.

 

P.

[marcopolo]

Looks like either way cost might be awarded and in actual fact I believe in the my case, therefore I think to pursue it is the best policy using the relevant case law from the site.

 

Thanks

[zootscoot]

Hi Marcopolo,

 

The mistake route under s.32(1) © would be far easier to prove than concealment under s.32(1)(b). For concealment you have to show that they concealed the facts relevant to the cause of action (ie how much it cost them) you can not rely on concealment of the law (ie they concealed that the charges were unlawful). You also have to show that they were under a duty to disclose the facts. Given that the banks rely on commercial sensitivty of their costs its unlikely that you will establish a duty that they should reveal their costs.

 

With mistake you only have to show that you paid the charges in the mistaken belief that they were lawfully due and that it wasn't reasonable for you to discover that mistake until the OFT Report and consequent publicity.

 

See:

 

House of Lords - Kleinwort Benson LTD. v. Lincoln City Council

Kleinwort Benson LTD. v. Mayor etc. of the London Borough of Southwark and Others

Kleinwort Benson LTD. v. Birmingham City Council

Kleinwort Benson LTD. v. Mayor etc. of the Lo

 

Hope this helps

 

Zoot

[Glenn UK]

MArcopolo

 

Any chance you can pm me, i am having trounble with my pm and need to ask you somehting urgently.

 

Thanks

 

Glenn