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    • written to my MP but Im unsure what can be done. The carpark is under council ownership, im not so sure it was previously, but either way.
    • remember you do not await any returns you must file your defence by 4pm day 33. i notice and have edited your defence filing date of 1st feb you put in response to our questionnaire. the corrected date is by 4pm 15th feb.   plenty of lowell claimform util threads here to read           
    • Hello there!  an update and a further question for you please..    Letter was sent back to Drydens Fairfax within  the 30 days disputing the claim due to student loans deferring the loans each year.     Received a letter from Drydens on 11/12 acknowledging the letter,  saying that the account had been put on a temporary hold whilst they contact their client with details of the query and that they will inform us as soon as a response is recieved from their client.   Then yesterday another letter of claim arrives, exactly the same as the one they sent in Nov, with no response to the letter we sent back to them in response to the previous letter of claim that they sent in Nov.      Do we just need to send another response back as we sent in Nov?   What are they playing at?   SLC never replied to the SAR that we sent off in Nov either.   Thanks again for your help with this.
    • not been reading up during the down times between each stage on here? so you know whats to come next at each stage and thus what to do? part of cag is self help.........   LEGAL : N180 Directions Questionnaire (Small Claims Track) **Correct at Sept 2016** - Legal - Consumer Action Group   i would recommend you do not give lowell sols your email/sig/phone - leave those blank on their copy  
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
      • 31 replies
    • Hermes lost parcel.. Read more at https://www.consumeractiongroup.co.uk/topic/422615-hermes-lost-parcel/
      • 49 replies

My 6+ Year Claim Against HSBC


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

 

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 :mad: 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!).

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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...

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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...

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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...

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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;

 

 

 

 

 

I am not a legal expert my advice is given without prejudice and is purely my opinion only. If you are in doubt please seek professional advice.

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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

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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...

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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.

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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...:cool:

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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?

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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...

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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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.

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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??

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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 :D

 

 

HSBC WON three times!!!!! Read about my continuing battle (claim FOUR!) Link HERE

Capital One WON Link

HERE

GE capital (5 accounts) WON link HERE

Lloyds bank account WON second claim starting! link HERE

Budget insurance cough up WON link HERE

Principles WON link HERE

A&L (Mrs Crusher's account) claim link HERE

Barclays claim link HERE

 

Any advice given is on an informal basis only and without prejudice or liability. In in any doubt, consult a qualified lawyer.

IF YOU HAVE GOT YOUR MONEY BACK, PUT SOME BACK INTO THE SITE TO HELP KEEP IT OPEN!

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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

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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?

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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!

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Please note that this topic has not had any new posts for the last 4985 days.

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