Beyond 6 years

[dad]

Well hearing was a bit of a mixed bag.

 

Anyway the bank had intended to claim limitation but did not raise the issue at the hearing having received my counter argument. The judge even asked if they wanted to claim limitation and his eyebrows went up when the bank's barrister said that they did not. So this line has not been tried but appears strong.

 

The argument is based on the following Court of Appeal case:

 

Joachimson v Swiss Bank Corporation [1921] 3 KB 110

 

The court held that for time to start running for limitation there needed to be a demand for payment from the customer. In his judgement Atkin LJ pointed out:

 

‘The practical bearing of this decision [as to the necessity for a demand] is on the question of the Statute of Limitations … The result of this decision will be that for the future bankers may have to face legal claims for balances on accounts that have remained dormant for more than six years.’

 

As a result of this judgement time only starts to run against you from your demand for repayment ie your first letter asking for repayment. You then have six years to claim.

 

Hope this helps

 

Dad

[Glenn UK]

Dad

 

useful info, which bank were you up against?

 

I have just been up against abbey and they have repaid charges from 1997 and did not use the Limitation act nor Laches which surprised me.

 

I prepared arguments which were based on concelament and mistakes but hadnt seen that case before, do you have alink to it at all? (ill search too see if i can turn one up).

 

Glenn

[Ron Baker]

Thanks dad,looks like more amendments to submission....judge is going to like me....just give it up Mr Halifax and all the rest of you BankRobbers.

 

Ron

[Parkvale]

dad,

Is your case small claims or fast track? Did they mention the limitations act in their defence ? Extremely interesting that the bank did not want to pursue the limitations line of defence . Keep us all posted on your progress

[Guest Battleaxe]

Dad,

 

This has been what I have been saying all along, and got the same interpretation from a legal eagle clearly stating you have six to make your claim, not you can only claim back six years. This is not statute barred in any way.

 

I have also had this discussion with the FO regarding my pre 2000 claim.l

[nel3336]

hi there....first post so please be gentle....I'm not as clued up on all of this as you guys and gals are BUT my question is......

 

I realise that in most cases there is the 6 years limit.....but what about the already closed accounts?, are they a) still restricted to the six years past from this present day. or b) six years prior to the date the account was closed.?

 

likewise are the banks required to keep the last 6 years information of all accounts regardless of the date an account has been closed, or just six years from this present date?

 

any thoughts or comments would be greatfully received

nel

[Glenn UK]

BUt the six years runs from the cause of action which is why the banks argue that the cause of action was the imposition of the charge.

 

NOw i dont agree that this is the cause of action in our claims but that is how the argument works for limiting the charges older than six years.

 

In court unless you can argue effectively against this that is how the court seem to interpret it.

 

Abbey specifically said in their revised defence that they did not intend to rely on the limitations act and did not even mentin the doctrine of laches.

 

In the end they settle all charges even those from beginning of 1997.

 

HTH

 

Glenn

[Glenn UK]

hi there....first post so please be gentle....I'm not as clued up on all of this as you guys and gals are BUT my question is......

 

I realise that in most cases there is the 6 years limit.....but what about the already closed accounts?, are they a) still restricted to the six years past from this present day. or b) six years prior to the date the account was closed.?The limitations act applies to all claims and limits actions arising out of a contract to a 6 year limitation period. However, there are many strong arguments to allow claimants to use sec 32 of that act which allows you relief from fraud, concealment or mistakes. Makes no difference whether the account is open or closed.

 

likewise are the banks required to keep the last 6 years information of all accounts regardless of the date an account has been closed, or just six years from this present date? The banks have policies for data retention which are not founded in law, or at least there is no specific requirement for them to hold data for any specific period or to dispose of data after a specific period. Many say six years by statue and i have never found a bit of legislation that says this. The inland revenue for example told me they only required 3 years of account now (it used to be six), although if they think you have committed fraud then they can ask for all they want. nearly forgot, abbey supplied me with data older than six years for two accounts and i know of somoen else they did too. The CO-op provded me with data over 9 years old.

 

Both Abbey and the Co-op have plocies aparently that mean they only hold data for six years.

 

I dont believe them.

 

any thoughts or comments would be gratefully received

nel

 

HTH

 

Glenn

[nel3336]

MY GOD that was quick!!!

 

Thanks very much Glenn...tell me did you cut and paste or are you really superman?

[Glenn UK]

MY GOD that was quick!!!

 

Thanks very much Glenn...tell me did you cut and paste or are you really superman?

 

Whats 'cut and paste'?

 

Is it anything to do with wallpaper?

 

Superman? Nah i wear my pants under my trousers, usually at least.

 

Glenn

[Parkvale]

Glen,

I have a case against Nat. West for charges between 1999 and 2002 totally over £7k.

They have quoted all the usual "claim is barred by the operation of the limitation act

1980 and /or the doctrine of latches etc." In their defence. I first complained to nat. west in may 2002 about charges and requested a refund of these fees. I have written confirmation of their refusal to refund charges in june 2002. Would the proof of my complaint in 2002 take me out of the limitations argument ?

[Glenn UK]

I suspect if they have kept records of your attempt to reclaim the charges in 2002 then that would be deemed to be the 'cause of action' in your case and you would have 6 years from that date to make your claim.

 

I guess it depends on what your claim in 2002 said as well. If you simply said i think these charges are unfair then it may not count as the cause of action date.

 

I think regardless this doesn't in my mind preclude you from submitting a claim. What you need to understand is that if you have paid charges in the knowledge they were unlawful this may give the banks a defence as i recall.

 

You could still rely on their concealment as well as payment made under a mistake.

 

Others may take a different view.

 

JMHO

 

Glenn

[Parkvale]

Glen,

Thanks for that prompt reply. My claim is at the AQ stage where i have received their copy, but nothing from the courts yet. I have just found a number of letters to and from nat. west.. One particular comment from them stands out . I quote "as the bank has not

made a mistake or failed to manage your account properly, it is not appropriate to accede to your request for a refund of these fees, and it is therefore turned aside as unjustified. " I never thought the charges were unlawful, just unfair. Concealment by the bank seems to jump out at me. Should i hold these letters back for my court bundle ? Or notify the banks solicitors now that their doctrine of latches argument in their defense is dead in the water. I will start a thread on this case when i receive notification of AQ from the court.

[JonCris]

Parkvale

From the time you brought your original claim (& can prove it) you have 6 years in which to issue proceedings........therefore NW cannot invoke the limitation act. They could however invoke latches so you need to be ready with your counter argument...........no prejudice if the claim proceeds........evidence still available to defence..........cause of action not stale as implimentation of unlawful penalty charges still continuing.......it's important that do your research......Also watch out for a last minute offer just before the hearing..........if approached insist that ANY discussion is 'WITHOUT PREJUDICE'.......DO NOT enter into any discussion...............unless they state at the outset that they are offering FULL settlement of your claim.......in which case there will be need for further discussion..........get them to write & sign a brief note to that effect

[Parkvale]

JonChris,

Thanks for your comments. Just one question springs to mind. How could they invoke the doctrine of laches ? I never sat on the charges , but challenged them very vigourasly. Admittedly i was not questioning their lawfulness ,because like everyone

on this site had i know idea of the storm that lay ahead. Even though they were not challenged in a court of law. I did not "sleep " on my rights and therefore feel that the laches issue wuld be hard to nail down by Nat. West.

[JonCris]

I agree but it won't stop them from trying............They will probably argue that your delay in bringing an action has caused them prejudice......after all you can't claim to being entirely ignorant & you need to be ready to rebuff

[Parkvale]

Yes maybe i am getting a little complacent with this . Not quite sure about causing them prejudice. I would be very grateful if you could explain the prejudice issue as i am not a legal eagle like your good self .

[JonCris]

It could be anything..........relevant correspondence/docs/witness evidence no longer available

[Guest Battleaxe]

This is where I think I am prepared. I have kept copies of all the letters I have written to the Chairman of a & L aka L & I since 1998 and have protested about the charges levied, so if they try to invoke Latches, I think I can disprove 'sleeping' on the problem. Section 32 is always there regarding 'concealment' on their part,

[JonCris]

Hi Battleaxe

 

Did you include reference to such corre in your POC?

[Parkvale]

JonCris,

Thanks for that . Will certainly be more on guard now. Go for it Battleaxe. I have like you kept all my old correspondence from my bank Nat West. I have also believe that all penalty charges 6 years prior to your first complaint could also be claimed for.

If they cannot invoke the limitation act.

[progenic7]

Just wanted to point out the point on the bank being a fiducery (they always deny this) as it seems that indeed banks hold no authority as a fiducery at all
"customer and banker is neither a relation of principal and agent nor a relation of a fiduciary nature, trust, or the like, but a simple relation – it may be one sided, or it may be two-sided – of creditor–debtor. The banker is not, in the general case, the custodian of money. When money is paid in, despite the popular belief, it is simply consumed by the banker, who gives an obligation of equivalent amount”

[Guest Battleaxe]

Hi Battleaxe

 

Did you include reference to such corre in your POC?

 

 

Haven't gotten that far yet JonCris, because at the moment I am shaking them up with the FOS, who asked for everything. If the FOS doesn't put the screws on them, then the N1 gets filed and the correspondence will be mentioned in the POC. I have already told them in my LBA that they cannot hide behind the Statute of Limitations or Latches and I did refer to the previous correspondence over the years and gave then the references and they haven't answered. I also added post October 2006 charges to the claim, to see what they are going to try to wriggle out of of. I already have the main part of the claim settled, so I am in a win win situation so far. I am trying to set a precendent with the secon bite and I hope we do go to court. Just letting the FOS cut their teeth on this and see what they come up with first. FOS says if they can;t get a resolution it does not stop me from going to Court to push the claim. As the account isnot being used and they are adding late charges an interest to the O/D, it is apaper exercise for that part of the claim, because they aren't taking anything off me, just adding to the overdraft.

[JonCris]

Sounds like they may be seeking outside counsels opinion

[progenic7]

Hi all,

 

Jonchris i thought maybe you would know the answer to this but anyone can answer if they know it of course

i have seen the defence argue in court that if at the time of receiving the charges (these are pre six year charges btw) if you had used reasonable diligence and sought legal assistance ie seen a solicitor him/her would have known that the charges were unlawful (i prefer the word illegal myself), or indeed if you had gone to the citizens advice they also would have known this, and so then you could have done something at that time. The judge seemed to agree that this was all very common knowledge amongst the legal profession.

 

what are your thoughts about this argument ?

 

in my personal situation i would try and argue that this would have been out of the question as i couldnt afford legal assistance, (though the CAB is free of course)