FORGET s.32 Limitations Act - there's a better way...

[Guest bong]

Following on from a discussion in someone else's bank thread, I thought this deserved a more public airing. Wastn't sure whether to post this here or in General forum where it might get more of a viewing..anyway if the mods think it appropriate perhaps it could be moved or copied in both.

 

I believe "dad" has stumbled upon a new way of successfully claiming back charges beyond 6 years... This is based on the nature of the bank-customer relationship being contractual and their obligation to repay money we have deposited in our account upon receiving formal demand from us. So we send them our preliminary request for the repayment of our money (our formal demand) and when they refuse they breach the contract. This event becomes our cause of action. Up until now we have been treating the charges as the cause of action and if they are older than 6 years, seeking relief from the limitation period under s.32 LA. The charges are not the relevant date or cause of action because we did not demand repayment of our money at that time, they did not refuse at that time and therefore no breach occured and we had no cause to start an action at court.

 

As long as we raise our court claim within 6 years of sending our prelim letter, we are within the limitation period. I don't think this would apply to credit cards, because the contractual relationship is completely different from the banking relationship.

 

here is the original post by dad on 8 Feb which cites the relevant case (NOTE - his bank dropped their limitation defence)

 

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

 

Unfortunately he doesn't appear to have a dedicated thread to his claim, this was posted in someone elses thread.

 

and my discussion with the phoenix in his thread is here http://www.consumeractiongroup.co.uk/forum/hsbc-bank/6956-my-6-year-claim-6.html#post556791

[Guest bong]

hello?

 

no-one want to discuss this?

[livelylad]

Just reading it now Bong and passing it around to the interested parties. Good find Bong.

[Josamolly]

Looks very interesting Bong... something i'm sure that will be discussed at length over the next few days... Is it the holy grail? I don't know, but its a good starting point..

[Guest bong]

I have been wondering whether it would necessitate changing the basis of our claims to maybe damages for breach of contract? just a thought..

[Seminole]

hello?

 

no-one want to discuss this?

 

I do but I need to go home! I'll read properly this evening.

[thecornflake]

I read something similar here a while ago, possibly from someone who knew a barrister? they said the limitations applied in the same way, as in you have 6 years from when you discover the charges are unlawful in which to make your claim.

 

This thread seems to add more reasoning to why this is so, I definitely think it is a strong argument.

[j.barton1]

Hi, I've got a claim in against A&L for 7 yrs and i am lucking forward to using this argument, seems so straightforward. I've been trying to get my head round the limitations act...not that the bank has mentioned it YET...cant wait.

Jenny

[Guest Battleaxe]

I was told by the AMICUS solicitor that is six years to make the claim, not you can only claim six years.

 

I was always of this understanding and when it was clarified for me, I knew I was rtight in law and the six years back dated was not correct.

[mcuth]

Now that is a very very interesting approach, Bong!

I think I need to revisit this at the weekend to think longer about it.....certainly has my appetite whetted though

 

Cheers

 

Michael

[moneymania]

I was told by the AMICUS solicitor that is six years to make the claim, not you can only claim six years.

 

I was always of this understanding and when it was clarified for me, I knew I was rtight in law and the six years back dated was not correct.

 

I'm of the same thoughts, that we have 6 years to claim, not you can only claim 6 for years worth.

 

Take a mortgage situation. Your still owe on your mortage after you thought you had paid it off. The mortgage company would then have up to 12 years to claim the money from you. They are aware of the breach (none payment of account), them they allowed upto 12 years to claim this back under the limitations act.

Same as our situation, we are aware of the charges now and they refuse to pay upon first request, we then have 6 years to claim our charges.

There does not seem to be any reference to how far back you can claim.

 

Although the mortgage situation is for a fixed amount, in one time frame not penalty charges over a period of time.

 

Any more thoughts on this, as I'm about to put in a further 7 claims and theres a positive legal angle on this, I would like to claim for more than the 6 years.

 

Great site by the way. :)

[TideTurner]

If you look at the miners, the asbestos claims and the tobacco claims, you will see that the limitation date commences from the date of discovery. Where you have been wrongued, you may claim from the limitation of the date you first realised you had incurred a loss or damage.

 

I got all of my data including computer logs via my dpa request. If they fail to provide this info, you need to request a confirmation of destruction, the method of destruction, and an assurance that they have retracted your personal information from all sources to whom it has been communicated, particularly the CRA's.

 

My claim started from the date I discovered it.

[Guest bong]

tide, I think you are missing the point of my post. This is providing an alternative route to s.32 - assuming I have understood correctly the effect of the case cited by dad.

[Guest bong]

just to let you all know I have PMd BankFodder and zootscoot this week asking if they wouldn't mind stating their opinions.

[steven4064]

I'm of the same thoughts, that we have 6 years to claim, not you can only claim 6 for years worth.

 

I think these two are the same thing.

 

"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 accrued." (Limitations Act 1980 s5)

 

If the cause of action was the placing of a charge by the bank then we have six years after the charge was made to bring an action (in court). So, today, the oldest charge I can claim for is one placed 6 years ago: the older ones are barred by the Act.

 

However, the Act also allows for the situation where the cause of action happened but you didn't know because the perpetrator hid it or you made a mistake in thinking they were allowed to do what they were doing (charging you) then the 6 years starts from the day you discover the truth (s32).

 

(NOTE - his bank dropped their limitation defence)

 

Being cynical, I'm not sure you can read too much into this. Perhaps the banks are so desperate not to go to court they will ultimately drop ANY defence.

[TideTurner]

Apologies Bong,

 

Are you saying that the limitation date runs from the first point of contact? Could this apply to your first complaint / prelim? This would be the only proof they would have that you were aware that a wrong had taken place, if they were to provide any documents to back up their defence in Court.

 

Tide

[elsinore]

The concept of a breach of contract on the part of the bank is appealing as long as there is a contract to breach. If the account from which one is claiming repayment of charges no longer exists, because it has been closed by either party, then surely there is no contract to breach.

 

Because all such charges being claimed are more than six years old, otherwise they would not be contentious, that will mean that many of the accounts (like one of mine) will have been closed.

 

There is a new approach here http://www.consumeractiongroup.co.uk/forum/general/66227-limitation-act-1980-s32.html which relies on a breach of duty rather than a breach of contract, which I find very appealing.

 

Elsinore

[maybelline]

Following on from a discussion in someone else's bank thread, I thought this deserved a more public airing. Wastn't sure whether to post this here or in General forum where it might get more of a viewing..anyway if the mods think it appropriate perhaps it could be moved or copied in both.

 

I believe "dad" has stumbled upon a new way of successfully claiming back charges beyond 6 years... This is based on the nature of the bank-customer relationship being contractual and their obligation to repay money we have deposited in our account upon receiving formal demand from us. So we send them our preliminary request for the repayment of our money (our formal demand) and when they refuse they breach the contract. This event becomes our cause of action. Up until now we have been treating the charges as the cause of action and if they are older than 6 years, seeking relief from the limitation period under s.32 LA. The charges are not the relevant date or cause of action because we did not demand repayment of our money at that time, they did not refuse at that time and therefore no breach occured and we had no cause to start an action at court.

 

As long as we raise our court claim within 6 years of sending our prelim letter, we are within the limitation period. I don't think this would apply to credit cards, because the contractual relationship is completely different from the banking relationship.

 

here is the original post by dad on 8 Feb which cites the relevant case (NOTE - his bank dropped their limitation defence)

 

 

 

Unfortunately he doesn't appear to have a dedicated thread to his claim, this was posted in someone elses thread.

 

and my discussion with the phoenix in his thread is here http://www.consumeractiongroup.co.uk/forum/hsbc-bank/6956-my-6-year-claim-6.html#post556791

 

thats great and is exactly what my claim is based on, my cause of action being when I first wrote to halifax and stated their charges were unfair and asked for them back, I am up to warrant of execution with them and still waiting.

[Guest bong]

I think these two are the same thing.

 

"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 accrued." (Limitations Act 1980 s5)

 

If the cause of action was the placing of a charge by the bank then we have six years after the charge was made to bring an action (in court). So, today, the oldest charge I can claim for is one placed 6 years ago: the older ones are barred by the Act.

 

I agree

 

 

However, the Act also allows for the situation where the cause of action happened but you didn't know because the perpetrator hid it or you made a mistake in thinking they were allowed to do what they were doing (charging you) then the 6 years starts from the day you discover the truth (s32).

 

yes, that has been very well debated in many other threads, but this one was set up specifically to discuss the merits or otherwise of pursuing it from a completely new angle.

 

Being cynical, I'm not sure you can read too much into this.

 

The banks have been into court to fight claims purely on the limitation issue and won.

 

Why do you think this, based on the case that was presented?

[Guest bong]

 

Are you saying that the limitation date runs from the first point of contact? Could this apply to your first complaint / prelim?

 

 

Using the ruling in this case you would have 6 years from the date of your first letter demanding the return of your money to bring it to court.

[TideTurner]

Be wary,

 

All telephone calls are logged with the banks, and you should request a copy of this log in your SAR. After the 40 days to receive it, you are entitled to an update of any further information they hold on you, providing you are not requesting this at 'unreasonable' stages, so you should request a copy of all information monthly from their Data Controller (with any third parties, Data Processor).

 

They may produce their computer logs as evidence that you were aware of the damage, including date and name of user who logged the call. Therefore, make sure a request for all computer logs is in your SAR, as you will be able to show that they did not comply to your SAR request, and therefore your case could have been resolved without the need for Court action.

[Guest bong]

The concept of a breach of contract on the part of the bank is appealing as long as there is a contract to breach. If the account from which one is claiming repayment of charges no longer exists, because it has been closed by either party, then surely there is no contract to breach.

 

I don't know the answer to this but my gut feeling is that if there was a contract in existence within 6 years of bringing the claim to court, then you would be ok. but I'm no expert and I'm only basing this on the fact that people with closed accounts are successfully bringing non-statute-barred claims. Would there be a difference with this approach? We really need the advice of zootscoot because contract law is her area of expertise.

 

There is a new approach here http://www.consumeractiongroup.co.uk/forum/general/66227-limitation-act-1980-s32.html which relies on a breach of duty rather than a breach of contract, which I find very appealing.

 

Elsinore

 

yes, but I think that depends on showing the bank owed us a duty to reveal the actual costs. again, this goes back to the s.32 line of attack, which I'm not saying we should ignore, just that this might provide the answer we have been searching for to get around that approach. lets hope we can get some expert opinion on all of this, soon...

[Guest bong]

Be wary,

 

All telephone calls are logged with the banks, and you should request a copy of this log in your S.A.R - (Subject Access Request). After the 40 days to receive it, you are entitled to an update of any further information they hold on you, providing you are not requesting this at 'unreasonable' stages, so you should request a copy of all information monthly from their Data Controller (with any third parties, Data Processor).

 

They may produce their computer logs as evidence that you were aware of the damage, including date and name of user who logged the call. Therefore, make sure a request for all computer logs is in your SAR, as you will be able to show that they did not comply to your SAR request, and therefore your case could have been resolved without the need for Court action.

 

Sorry Tide, how do you mean the case could have been resolved without the need for court action?

[TideTurner]

Bong,

 

Unsure, but I have read in the past that if an account is settled, then the contract is terminated and both parties have no recourse unless there is a specific clause (like a warranty), or other term which provides for an extended period.

 

This must be superceded by discovery though.

 

Tide

[Guest bong]

Bong,

 

Unsure, but I have read in the past that if an account is settled, then the contract is terminated and both parties have no recourse unless there is a specific clause (like a warranty), or other term which provides for an extended period.

 

This must be superceded by discovery though.

 

Tide

 

If that was the case, then people with closed accounts wouldn't be bringing claims at all.