Beyond 6 years

[Ron Baker]

Will be appearing in court soon with my case, going back more than the 6 years limit, and like a few on this website quoting section 32 of the limitation act 1980 concealment etc.

The judge in may case would like to know why it should not be statue barred otherwise it will be struck out… have till the 1st Feb 07 to reply.

I believe the judge would like me to be quoting word for word from section 32 of the act, were in my submission all I quoted was Section 32(1)(b) and(1) © of the 1980 act and hoping he would have checked it, that’s if he did not know in the first place?.

When speaking to the courts they are not able to advice as to what the judge wants.

To try and stop the Halifax from imposing the Latches argument that I’ve “sleep on my rights” I’m going to be adding amendment quoting parts of Cave v Robinson Jarvis & Rolf in that …In such a case the period of the limitation does not run until the plaintiff discovers the concealment or could have with reasonable diligence discover it the rationale for the provision is plain if the defendant is not sued earlier he has only himself to blame. Or is my interpretation of this wrong????

This (with reasonable diligence …. (Diligence)1. persistent effort: persistent and hard-working effort in doing something

2. legal carefulness: the care or attention expected by the law in doing something, such as fulfilling the terms of a contract.

 

Also a section from Photomans post, it was not that ignorance of law that prevented me from taking action, it was the fact that the validity of the original contract clauses under law were initially and then continually mis-represented that there charges were lawful(until the OFT investigation) and that we trusted that their representation of their rights under law were justified ,and this amount to concealment

I used Paul submission as a template letter editing it with my details

 

We would grateful for any input in… what I can add to my amendment?

 

As you can see from my submission and my understanding of the limitation act and section (11) of my submission….. 11 I contented that if I acknowledge the debt and the Defendant has implement these charges on to our account, then this would not be time barred until after the last acknowledgement which was in 2004 and 6 years had elapsed. Or have I got this all wrong ????

 

1 We opened our current account number ******(“the account”) with the Defendant on 27th May 1993 the account comprised of a current account and a debit card. On the 18th July 1994 the first charge was applied to our account at the sum of £10 then increasing to £25, then £28, then £30, over the next proceeding years to the last one being on the 5th July 2004 giving a total true figure of charges at £1047.009.

 

2 The Claimants as lay persons with no legal training or expertise could not be expected to have any legal knowledge to question the validity and the lawfulness of these charges that were applied to our account over the years as shown in the schedule of charges filed.

 

3 The Claimant learned that these charge were unlawful during July 2006 after visiting Internet sites, and then by media publicity, given to a legal claim regarding the legality of these bank charges, we then made further investigations and seeking further advice through the Consumer Action Group website, and other internet based legal sources.

4 The Claimant wrote to the defendant in August 2006 requesting the refund of £1027 (copy attached).The Defendant replied on the 6th September 2006 with an offer of £68.00 (copy attached).

The Claimant wrote back on the 11th September 2006 accepting the defendants offer as part payment (copy attached). The Defendant replied on the 18th September 2006 with seconded offer £204, this was again accepted as part payment (copy attached)

5 The Claimant wrote on the 21st September 2006 accepting the offer as part payment (copy attached). The Defendant wrote back on the 13th October 2006 after small claims court procedure had been implemented by the Claimant with an offer of £232, to which they have deposited in to the Claimants account.

 

6The Claimant wrote to the Defendant on the 18th October 2006 accepting the increased offer as part payment yet again, and pointing out to the Defendant that the total figure presented to the court was slightly wrong, but the Claimant would not be requesting the courts to be amending them, and that the original figure stands.

 

BASIS FOR OUR CLAIM

 

7 The Defendant mentions in there defence that those charge incurred were before October 2000, therefore statute barred by virtue of the Limitation Act 1980.

 

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

 

9 Section 5 of the Limitation act states that “an action founded on simple contact 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 it there is an acknowledgement or payment of the debt within the six years period.

10 I contented that by myself and wife going into the Defendant branches requesting the waiver of some of these charges from time to time over the last 12 years on the grounds that were causing severe financial hardships, and by paying the last one of these charges of £30 on 5th July 2004.

11 I contented that if I acknowledge the debt and the Defendant has implement these charges on to our account, then this would not be time barred until after the last acknowledgement which was in 2004 and 6 years had elapsed.

 

12 By the Defendant assertion that our claim is time barred implies that that it is possible that one party’s rights under an agreement may be time barred, whereas those of the other party are not.

 

13 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 these charges are 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 July 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

 

 

 

 

14 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 large staffs which include experienced corporate lawyers and accountants

 

15 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 disproportionate to the banks actual losses for that breach. In making this 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 such a decision.

 

16 The Claimant holds 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.

 

17 The Claimant holds 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 such 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.

 

18 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.

 

19 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”.

 

20 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.

 

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 24 below.

 

21 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.

 

SUBMISSIONS TO THE COURT

 

22 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.

 

23 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.

 

24 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.

 

FIDUCIARY

 

Black's Law Dictionary describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another." A fiduciary has a duty to act primarily for the client's benefit in matters connected with the undertaking and not for the fiduciary's own personal interest. Scrupulous good faith and candor are always required. Fiduciaries must always act in complete fairness and may not ever exert any influence or pressure, take selfish advantage, or deal with the client in such a way that it benefits themselves or prejudices the client. Business shrewdness, hard bargaining, and taking advantage of the forgetfulness or negligence of the client are totally prohibited by a fiduciary.

As fiduciaries, financial planners must make fair and complete disclosure of all material facts and must employ reasonable care to avoid misleading their clients. The utmost good faith is required in all their dealings. Simply put, fiduciaries must exhibit the highest form of trust, fidelity and confidence, and are expected to act in the best interest of their clients at all times

I’m debating whether to include Alanfromderbys excellent post on a fiduciary responsibility toward their customers.

Thank you for taking the time in reading this long post… and any help you may give me, or feel free to shoot me down in flames…. if it all falls apart, then we all have learnt from this experience, and I am luck, in the fact that I have got legal aid in bring this action, a bit apprehensive though, if it goes the distance, the judge may award the cost against me?

 

Thanks to Paulwlton for letting me use your submission...GlenUk for your comments so far and to anyone else who responses to this post

Ron

[Glenn UK]

Ron

 

That looks a damn good first effort, i have started to read through it but have copied and pasted it into word and will work on it where i think i can add something and repost soon.

 

Glenn

[Ron Baker]

Ron

 

That looks a damn good first effort, i have started to read through it but have copied and pasted it into word and will work on it where i think i can add something and repost soon.

 

Glenn

 

Thanks Glenn for taking the time

 

Ron

[Guest Battleaxe]

I might be needing these arguments because I am claiming back my pre 6 years with A & L now. I did word my prelim letter to cover all these bases, so hopefully the bank will take notice, but if they run true to form they wont, so any arguments I might need are going to be plagarised and altered to suit our circumstances.

[soldier girl]

Hi Ron - This is looking good (IMHO) I would only question point 12 (from a mutual view point) and how their assertion implies the argument given there. ie: you may need to state an explanation in regard of this particular statement.

SG x

[Ron Baker]

Hi Ron - This is looking good (IMHO) I would only question point 12 (from a mutual view point) and how their assertion implies the argument given there. ie: you may need to state an explanation in regard of this particular statement.

SG x

 

Soldier girl don't think it needs an explanation...to me that means you cannot have it both ways.. Mr Halifax.

 

What do you suggest

 

Ron

[paulwlton]

I would also work on something to counter their mere silence isn't concealment argument. I'll have a look into it.

Paul.

[Glenn UK]

Id forgotten about this little bit of info

 

Existing price structure

 

7.9

Current accounts are priced in a way which recovers total costs but does not

reflect the underlying costs of any one account. There are significant fixed costs in

providing a current account, as well as transaction costs. Face to face transactions are

more costly to provide than their internet or telephone equivalents so banks usually lose

money on them overall. To give an idea of actual costs, ATM withdrawals cost up to 30

pence, automated credit transfers about 10 pence and cashback transactions about 15

pence. Paying in cheques, by whatever method, costs on average 45 pence. Using a branch

counter for transactions costs about £1. In round terms, the incremental set up cost of a

current account is about £25. Incremental fixed maintenance costs, including quarterly

paper statements, add around £10 a year.

 

 

This is taken from here

Banking Review Final Report chapter 7.

 

All we need to do is find out which banks took part it was produiced in 2000, what do you lot think?

Check this link out House of Commons - Treasury - Fifth Report

paragrpah 42 - 45 i think, Treasury - Fifth Report 2001

hmmm, the bba were consulted in this one.

 

Glenn

 

[soldier girl]

Ron -I don't think it needs an explanation either -it's very obvious. I think you have made a sterling effort. I was just being super critical. All I was saying was that in some cases an implication would need to be backed up with fact to make your point> in this case you could argue that the statement needs no explanation but in a court situation(and it's happened to me) you would want to cover all your bases however trivial they may seem.

The OFT referral to the Competition Commission report may be worth having a look at in so far as costing etc. although I know it is a fairly recent document. Glenn is better able to advise you on it's relevence to your case than I am www.thecompetition-commission.org.uk

SG x

[dad]

Ron,

 

I may be able to help you. I have received a similar limitation argument and think that I have a solution. I have to attend an application hearing on 1st Feb where I will see if it works. I do not want to discuss it publicly until I know how it plays out in front of a judge.

 

If you want to wait then I suggest you write a letter to the judge marked urgent along the lines:

 

'I write about your [order/letter?] dated DD/MM/YY to provide a response to the Defendant's argument that part of my claim is statute barred. I am confident that I can fully counter the Defendant's argument. However as a litigant in person I am having difficulty getting copies of the appropriate authorities to confirm my line of argument is valid and to submit with my response.

 

I therefore respectfully request an additional 7 days to respond. That is by 8 Feb 07.'

 

I would then follow this up with a phone call. Courts are generally understanding of the difficulties faced by LiP so it would be very harsh of them not to allow a short finite extention of time.

 

Dad

[Guest strangewayofsavin]

you have 2 no. 20's

[Glenn UK]

Ron

 

I havent forgotten im working on this issue and will be in touch soon.

 

i was going to pm you ron but for some reason i cant i want to send you what i have got so far beofre psoting it if you can pm me your email address ill send it over if not postin here and we'll work out how we can communicate

 

Glenn

[Ron Baker]

15 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 disproportionate to the banks actual losses for that breach. In making this 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 such a decision.

 

This is going to be one of my amendments(below).... added to section 15 above,....any comments.

 

(The Claimant has put the trust in the Defendant as we would trust priests/lawyers/police officers /solicitors, and the fact they are in the business of offering a broad spectrum of banking services that carry a fiduciary responsibility towards there customers.)

 

 

 

Still debating were to put any defence of Doctrine of Latches and that’s assuming they will present this line of defence.

 

It would appear to me that I cannot mention at this stage Doctrine of Latches until the Halifax Barrister mentions it as part, of there defence.

 

What I find as told unfair…. is that the Halifax have been given copies of my grounds and yet they or the courts haven’t given me no copies of there grounds, as to why it should be statue barred ….and by leaving it until the eleventh hour to present to me and the court, the Doctrine of Latches defence.

 

If I don’t mention anything on Doctrine of Latches and they submit it, then all I would be submitting would be that to sleep on my rights would assumes that I knew what my rights were, and done nothing.

.

And then if it’s mentioned that ignorance is no defence, I will then be stating that it is well known that nobody can know everything and that people overcome ignorance in areas by educating themselves in which they have a lack of knowledge.

 

As we have started to, and this would be a travesty of common justice to impose a Doctrine of Latches, (sleeping on my rights) and that to sleep on my rights would suggest that I knew my rights,…. and have done nothing to address these rights in law

 

Ron

[paulwlton]

Ron

Seems ok, concerning your submission the defence may pick up on the use of acknowledgement, this needs to be in writing to stand up in law, may seem petty but if the defence can pick up on it they will.

Paul

[Glenn UK]

Ron

 

Did you receive my email and attachements ok ?

 

Glenn

[Ron Baker]

Yes Glenn

This reference to Federal Rules of Civil Procedure, is referring to USA law is it not? I doubt you being able us that within your submission m8.

 

Paul cheers m8 paul is your ruling case law now?

 

Any one else have any comments?? on the amendments that going to be put in? Beside the very helpful comments Paul and Glenn have give to this thread.

 

Ron

[Glenn UK]

Ahh Ron

 

The Federal rules are Canadian as it goes, but i cut and pasted it for the description rather than where it came from. This was the best text i found based on a whole range of sites, wikidpedia was a good source for info.

 

I dont know if you have noticed but there is a lot of use of case law between canada/uk/aus which surprised me, i think i found some cases of india/uk cross use too.

 

Anyway it doesnt in my view detract from the content,

 

HTH

 

Glenn

[JonCris]

That's because they where at one time all British colonies & have legal systems based on ours...........up the Rhaj.

 

In some cases such as Jamaica their system still allows cases to be brought before the Privy Counsel. Usually appeals against the death sentence which is still used in Jamaica

[Ron Baker]

Taken from Cave v Robinson Jarvis &Rolf

 

 

6. The underlying policy to which they give effect is that a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal: see Donovan v Gwentoys Ltd [1990] 1 WLR 472, 479A per Lord Griffiths. As Best CJ observed nearly 200 years ago, long dormant claims have often more of cruelty than of justice in them: see A'Court v Cross (1825) 3 Bing 329, 332-333. With the passage of time cases become more difficult to try and the evidence which might have enabled the defendant to rebut the claim may no longer be available. It is in the public interest that a person with a good cause of action should pursue it within a reasonable period.

 

The above section (that a defendant should be spared the injustice of having to face a stale claim that is to say one with which he never expected to have to deal) could be questionable, on the grounds that banks have to have audits every year… do they not.

 

WHAT ABOUT ARE BLOODY RIGHTS AND THE INJUSTICE... NOW THEY SHOUT DOCTRINE OF LATCHES

 

Therefore they would have knowledge of the true cost to them, and the difference between the true cost and what they actual charges are totally misleading.... and the only conclusion a reasonable person would come to…would be, its all profit motivated implemented by the directors/chairmen of the banks, more so if their salaries are profit performance related, and after seeking legal advice they may have or should have been made aware that this could be challenged in the courts “therefore to say they never expected to deal with it could be challenged.

 

 

I have a theory that if they the (banks) took legal counsel and you would expect they would have,… to make sure that nobody have the grounds to be able to sue them….that these charge didn’t reflect there actual true cost to them then there purpose would be purely profit motivated .

 

Now I wonder what would motivate directors/chairman of these banks…I wonder if profit related salaries would be a motive? to impose these charge to generate more profit (please feel free to correct me if senior management of banks don’t have performance related salaries)

 

Now if the above is true then because they work on percentages… I wonder if they have worked out that, even if they were ever ordered to refund us all, then they would still have made vast profits from these unlawful charges (our money), they would have had to invest, therefore generating income/profit while they have our unlawful gained money.

 

I would love to submit this theory to the courts… as to why the banks and others that have now jumped on this band wagon…. the likes of TeleWest £10 for late payment that its purely working on a percentage and repeat myself have used our money to generate income for themselves and how many (percentage) complain, and when they do there informed…now as a sign of good will (my arse as Jim Royal) would say… then refund it.

 

Ron

[JonCris]

Yes it would be an injustice for defendant to be subject to a stale claim but that judgement was on the premise that the event/cause was a one off event not as the case of the banks penalties a continuing widespread event.

 

Also the banks are not put to any disadvantage either by removing limitation or not being able to rely on latches. Only the claimant would be at a considerable disadvantage

[angry-in-suffolk]

I also want to claim back beyond the six year limit and I am hoping that you could suggest where I may stand.

 

In December 2006 during a recorded telephone conversation, where I made the advisor aware of my intention to record and got thier permission to record. I got a verbal confirmation that the notes on my account stated that in January 2001 I had made a complaint and that it was noted that I intended to take legal action to recover the charges and costs imposed by the bank.

 

On this basis where they admit they were notified verbally, does this mean that I can make a valid claim back as far as 2005 and if so can I claim back on all accounts held with the bank (cc and current)?

 

thanks

 

Kev

[JonCris]

No. If you knew then that their charges where unlawfull & did nothing any claim pre 6 years is time barred. In fact my advice would be to NOT mention any matters pre 6 years as on the basis of what you say the bank would almost certainly defeat any such claim

 

2005! is only 2 years ago so I don't understand

[Glenn UK]

Seems to me that the critical issue is whether you honestly believed that you were bound to pay the charges at the time they were imposed.

 

(There is a lot more to think and argue about in this context, but for now we will presume you're a simple soul like me and thought the bank was legitimately allowed to make those charges when you paid them and that there was no doubt as to the lawfulness of them.)

 

Assuming you did, then discovery of the unlawfulness would have occurred at some time after the payment of those charges.

 

The question is when could you have reasonably discovered the likely unlawfulness of the charges.

 

Other than the OFT announcement i am not sure there is anything in the public domain that could have alerted the 'reasonable person' who has no financial or legal training to the possibility that the charges were unlawful.

 

The case in my mind for the OFT investigation being the catalyst for 'discovery' seems quite strong.

 

What this all means is that regardless of whether you did read or hear about the OFT report it seems to me you could have discovered at that time if for no other reason that it raised this issue in the press in a broad context.

 

If this is the case then claimants would reasonably have six years from that date within which to bring claims for the return of unlawful charges.

 

Of course the argument doesn't end there, but if you seriously want to reclaim charges older than six years you should read Kleinwort vs Benson, DMG vs Inland Revenue at least.

 

Not easy reading but provides lots of useful information.

 

JMHO

 

Glenn

[angry-in-suffolk]

Thanks for the replies - I didn't KNOW that the charges were unlawful at the time I said I would take them to court. I said it because it seemed unfair that the charges applied took me over what I assumed was a fixed limit set by them and they applied additional interest to those charges.

 

Where 'I' could not exceed 'thier' limit, it seemed unreasonable that they could and this unfairness was compounded that they then applied interest to debits I had not made.

 

Even though I questioned it, I was told by their telephone advisors on numerous occasions that they were allowed to apply those charges and as a 'simple soul' I assumed that those advisors could not tell 'untruths' as they worked for a regulated industry.

 

It wasn't until the OFT publications that I realised that my gut instinct about the fairness was right and it is only now I find I have the time to take action.

 

JonCris: 2005 should read 1995 - well spotted and thank you.

 

Kev

[Glenn UK]

ROn

Ive been doing some reading, have you looked at

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

 

House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

 

House of Lords - Deutsche Morgan Grenfell Group Plc (Respondents) v_ Her Majesty's Commissioners of Inland Revenue and another (Appellants).mht

 

If you havent you should have a look for certain at Klienwort vs benson and DMG Vs Inland revenue

 

HTH

 

Glenn

 

PS dont have the link for DMG i can email you the doc if you dont have it.