My 6+ Year Claim Against HSBC

[lateralus]

taylormade, have you seen bong's thread? very long, but very insightful on this subject, i believe.

[TaylorMade]

I seen a lot of it, but now have broadband in and plan to revisit (that thread DESERVES broadband ).

 

On the 'downside', lack of time means I'm picking at this job which should have a lot more attention, on the 'upside' I've got court papers in simply to get hold of the full credit card statements that I should have had last JUNE so until I've got proper figures I can't start the true claim for charges [in other words, I've got time ]

 

I'm not sure if that other thread I read was self-limiting to 6 years because that's all the data they could get. My having older paper gives me different options (I think!).

[Spiceskull]

There are a few issues regarding SOLA 1980 that need to be examined, not least of which is that somewhere in CPR (not sure, but will find out where) there is an argument that helps the bank negate the exemption clauses of SOLA.

 

I want to try to build an argument that effectively says that SOLA is an enshrined act, passed by parliament, whereas CPR is a set of guidelines to ensure best practice. It would be reasonable to assume that where there is contradiction between an Act and CPR, then the Act must surely take precedence...

 

I am moving back to Cornwall next week, so do not have any time to devote to this for the next ten days. However, once I am settled I will go after DG/HSBC (again) with all guns blazing, assuming that the call I have been "invited to make at my convenience" doesn't make a diversion to my plans...

[Spiceskull]

Oh - and to really get my dander up...my parachute account was with Nat West, and I opened it ONLY on condition that there was NOT an overdraft facility...

 

Three days after opening the account they wanted to know if I wanted an "account review..." - I can't repeat what I said at the time...

 

Yesterday I got a letter saying that a £500 overdraft limit has been authorised for my account (authorised by who?) and that this is to be a benefit to ME...if I don't want this "facility" then I have to give notice in writing within ten days (tomorrow...) or call a premium number...

 

That aside, I was more concerned with the Ts&Cs...they have certainly changed over the last six months:

 

Overlimit charge = £38 (gone up, not down as suggested by OFT)

This covers the "facility," and should they need to make the charge then they will notify in writing BEFORE applying the charge

But, a bit further down, it states that the charge will be applied IMMEDIATELY the cheque/credit is authorised...so a contradiction in the terms there...(are they really trying to tempt me - I have had no beef with NW to date...)

 

The best one (as far as I am concerned) is that using the facility seems to open you up to unlimited expenses/costs when the bank makes recovery - "if we have to write to you/DCA/courts for recovery etc...you will be liable for FULL amount..."

 

I will go through them again in more detail, but this really is a case of agreeing to sell your soul in return for a service/facility you neither need or asked for...

[lateralus]

i'm with netty - keep it under your mattress!

[nettyg]

lol lattie you do make me laugh!!!

[affirmation]

how does the Statute of Limitations not apply here? How come you are able to sue for further back than 6 years?

[Spiceskull]

how does the Statute of Limitations not apply here? How come you are able to sue for further back than 6 years?

Okay - the main principles of a "normal" refund claim are that:

• The terms invoked to apply penalty charges are unfair terms
  
• That the penalties are unlawful

Suggest reading around the forum to fully understand these two principles, because if you don't understand them then you will meet obstacles along the way...

 

SOLA 1980 has an exemption clause to cover this:

• That the bank either knew and withheld the fact that the terms were unfair and the penalties unlawful
  
• That the bank was genuinely unaware that the terms were unfair and the penalties unlawful, in which case they were mistaken, and your claim will be for relief from the consequences of a mistake

My own threads (Spice and Phoenix) cover the ground for these things, but then so do many, many others. If you look for threads that have "limitations" in the title, especially those ones started by moderators/admin, then you will get a much clearer picture...

[livelylad]

32.--

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
  • (a) the action is based upon the fraud of the defendant; or
    
  • (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
    
  • © the action is for relief from the consequences of a mistake;

[Guest bong]

SOLA 1980 has an exemption clause to cover this:

• That the bank either knew and withheld the fact that the terms were unfair and the penalties unlawful
  
• That the bank was genuinely unaware that the terms were unfair and the penalties unlawful, in which case they were mistaken, and your claim will be for relief from the consequences of a mistake

 

hi Phoenix,

 

just picking up on your second point here - that the bank was mistaken.

 

I don't think you would succeed in claiming that the bank was mistaken, the onus would be on you to prove it if they said they were not acting under a mistake and that you are speculating. It would become a matter of trying to show what was in someone elses intention, when you couldn't really know.

 

I think the only avenues here are concealment, if you could show that they have breached their duty to reveal what their actual costs were, and that YOU were acting under a mistake in paying them.

 

There is a new line of thought emerging in someone else's thread, which seems to be quite exciting and there is case law to back it up, which is that the limitation period did not start to run until we sent our first letter demanding repayment. That is our cause of action, and we have six years in which to bring it to court if they don't pay. I'm still trying to get my head round this, but I have understood this to mean that the charges were not an actual breach of contract and our claims do not arise out of us having breached the contract to stay within our o/d limit. I think the bank when barring more than 6 years charges has been alluding to OUR breach of contract (exceeding limit etc) when in actual fact that is not the cause of action. The member who used the argument and succeeded (before the hearing) was dad, the bank dropped the limitation argument. the post is here http://www.consumeractiongroup.co.uk/forum/general/60534-beyond-6-years-3.html#post547737

[Spiceskull]

There is a new line of thought emerging in someone else's thread, which seems to be quite exciting and there is case law to back it up, which is that the limitation period did not start to run until we sent our first letter demanding repayment.

We have to be very careful how SOLA 1980 is interpreted - Bookie and I have been arguing about this by email for ages...(we just love to argue!!!)

 

A claim from, say, ten years ago would ordinarily be statute barred, and your interpretation here suggests that if I made a Prelim now, then the six-year period starts now. That is wrong, as clearly the argument negates the whole of SOLA.

 

I think what you meant was that you can claim backwards from the date you sent the prelim - the banks would try to argue that you can only claim backwards from the date the claim was raised.

 

My view is the former, as this is the only provable point at which I can say I was aware of any error/concealment. If we went with the latter, then the banks would do everything they could to delay the claim being raised, and then "...oh dear, your six years is up..."

 

CPR seems to indicate in favour of the banks view, but SOLA 1980 implicitly states for the former...and as an Act of Parliament I believe it would take precedence in any event of a contradiction...

 

As for the differences between withheld/concealment and error - you have a point, and this is what I am trying to juggle at the moment...again, there are various ways of interpreting the exemptions...withheld would mean that they knew that the terms were unfair and unlawful, a point they could argue against until the OFT corrected them...at which point I would then argue that their belief was mistaken...lather, rinse, repeat...

 

Watch this space...but keep throwing counter arguments and titbits...I am determined to get there one way or another...

[Guest bong]

hi phoenix,

 

I understand where you are coming from as regards SOLA ordinarily working to include debts 6 years back from the date you issue your claim at court. I have been involved in debates before about whether it works 6 years back from the date of your prelim, and the conclusion was that this isn't correct. That is, if we continue to assume that the cause of action was the debit of the charges to the account.

 

However, I think you are misunderstanding what I said in my last post which wouldn't be hard, as I didn't explain it very clearly. What dad was saying (in my interpretation, which seems to have been effective enough to get the bank to drop the limitation argument) was that the debt did not become due to us until we formally made demand on the bank. At that point we got our cause of action and, as they refused repayment, we have 6 years in which to pursue recovery through the courts, otherwise it becomes statute barred. I think what that old case stood for, was the fact that there has to be a demand of payment before a limitation period starts to run.

[Spiceskull]

I understand where you are coming from as regards SOLA ordinarily working to include debts 6 years back from the date you issue your claim at court. I have been involved in debates before about whether it works 6 years back from the date of your prelim, and the conclusion was that this isn't correct.

He he he - there are two very strong sides to the actual start date, and SOLA implicitly says that the start date is from (to paraphrase) the date you became aware of the error/concealment.

 

In my view this is the date at which you send the prelim (technically, and because we all know why we do this, you could argue that it is the date you make your S.A.R - (Subject Access Request)) as this letter clearly says that you now believe the penalties/terms to be unlawful/unfair. You can PROVE this date without contest...

What dad was saying (in my interpretation, which seems to have been effective enough to get the bank to drop the limitation argument)

Nice - I will go and read Dad's thread - if the bank back off from the argument altogether then that can only be a VERY good thing...

I think what that old case stood for, was the fact that there has to be a demand of payment before a limitation period starts to run.

Again, the Prelim is an official demand for repayment, and indeed, it gives the bank an opportunity to settle without a claim being raised. In my view (and the view of many others) this demonstrates that you are being reasonable, and more importantly, that you are following the spirit of the overriding objective (CPR 1.1) most, if not all sections and parts...but especially (2)(b) and © (Statutory Instruments 1998 No. 3132 (L. 17))

 

We (Bookie and I) were thinking of bringing in a new thread devoted exclusively to hammering out the different interpretations of SOLA, but you seem to have pre-empted us in this...

[Guest bong]

To add further to what I wrote above, this line of argument stems from the contractual nature of the bank-customer relationship. When you pay money into the bank it becomes the bank's money, in effect we are allowing them to borrow it until we want it back. When you want it back, you have to make formal demand. Therefore when we send our prelim letter we are saying we now want our money back. Oh you took it? well you didn't have a lawful right to take it, so please give it back now or else...

 

The cause of action is that you have demanded your money and they have refused it and at that point they breach the contract. the fact that we didn't ask for it before is irrelevant, to look at it another way - if you paid money into the bank 7 years ago and left it there, and then wrote out a cheque (your formal demand) today, would you agree that you should be statute barred?

[Spiceskull]

Hey...now THAT is an argument, and a point of view, that really appeals to my sense of fun.

 

Thinking about the depositing of money more than six years ago, and then asking for it back, is a very logical approach...and one that they use when insisting on the repayment of a long term loan for example...

 

I am going to have to go away and think this through again from a new angle...thanks for that...

[Guest bong]

I would say it beats having to prove concealment or mistake...and I think they might just have to prove the charges were lawful to fight us on this.

[mlloyd]

Sorry for the late reply. I am with HSBC and recieved all six years worth about three weeks later. Just sat there for months before I sorted it out and about ten days ago I sent off the secound later with spreadsheet calculations (around £4850). Haven't heard anything yet and will send follow up letter Monday.

 

Just to update you, if it may help. They offered me £2000 which I declined, then £3000 which I also declined. I have started MoneyClaim online and last week I faxed DG my calculation sheet.

[warrih]

Just a thought here guys...

 

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant

 

When I sent my pre-lim, the template asked the bank for a detailed breakdown of what it costs to actually deal with the bounced cheques / O/D charges etc. In my response the bank did not include this information.

 

Surely this is a relevant fact which has been concealed from me by the defendant?

 

Any thoughts??

[HSBCrusher]

Hey...now THAT is an argument, and a point of view, that really appeals to my sense of fun.

 

Thinking about the depositing of money more than six years ago, and then asking for it back, is a very logical approach...and one that they use when insisting on the repayment of a long term loan for example...

 

I am going to have to go away and think this through again from a new angle...thanks for that...

Mmmmmmm.

A very interesting argument there bong.

I have just sorted HSBC out for the 3rd time, now its time for the 6+ claim.

Just sorting out my thoughts on it before I have a go

[Guest bong]

crusher I have set up a new thread dedicated to this approach here http://www.consumeractiongroup.co.uk/forum/legalities/65306-forget-32-limitations-act.html#post557273. Really just waiting to see if BF or Mods will comment on it because those of us who like the idea very much don't seem to be able to take the discussion further. Its turning into a long wait.....tum de tum de tum...then again I am impatient..but why do mods visit the thread and then disappear without word? Probably bowled them over:p

[lateralus]

you theorists sort it out and send me the answer on a post card. but - at the risk of starting world war 3 - are we as yet in agreement when the first charge of a bog standard claim can be - 6yr from the first letter or 6 yr from the date of the claim - because dg is def questioning charges over 6yr from claim date - so down here on the ground - what do we tell mr/ms claimant when dg kicks 2 or 3 charges into touch?

[Guest bong]

its charges within 6 years of the date claim is issued at court.

[warrih]

Hi there,

 

A&L told me that it was 6 years back from the date I filed the claim with MCOL.

 

Who knows!

[lateralus]

i'm whispering here so as not to start anything - so then what is all the talk about - i'm clueless!

[warrih]

Anyways, if...

 

Section 32(1)(b) of the 1980 Limitation Act postpones the commencement of the limitation period where "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". In this instance the commencement of the limitation period is postponed and does not begin until the claimant discovers the concealment. and...

Section 32 (2) of the same act states that “for the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."

As the banks actions of unlawful charges only came to light on 5th April 2006 as a result of the Office of Fair Trading report on penalty charges, the said charges were unlikely to be discovered until this time, thus postponing the commencement of the limitation period until this date.

That's my take on it anyway, think I might go for it and see what happens!