A New Way of Looking at Interest- 1st successful Claim - N'wide

[Guest bong]

Acerfan-

"They've offered refund of all charges (it's gone down since original claim cos the've slipped off the 6 years & another slipped off on 29/11) but not a refund of interest."

What on earth are you thinking of?? Two things:

1. were those items within the 6 years when you began asking the bank for your money back? If yes, then there's no way they can 'slip out'. Tell them to s*d off.

2. Were you within six years of the OFT report in April this year, which is the first time you could reasonably be expected to know the banks' charges were unlawful given that they have consistently (and continue) to conceal the true nature of their charges, that they are penalties, not genuine pre-estimate of costs?

Yes, you were within 6 years of April 2006 when you started your claim??

Well, nothing has fallen out because of the Limitations Act. tell them to s*d off and give you your money.

Only a bit more politely than that. I'm sure you could even include 'sine qua non' and 'quad erat demonstrandum' in your letter, if you tried hard enough!

And don't forget the interest, either contractual or statutory (or both, if you've been in overdraft and can show the interest is a demonstrable loss). They had plenty of time to settle without interest before you issued the claim. They waited, now they have to cough up.

But I'm not a lawyer, so this is just my thoughts, not legal advice.

Best wishes

 

Westy

 

Morning all,

 

nwtmm - I think we need to make a clear distinction between claimants who are choosing to limit their claims to the six year limitation period and those who are prepared to argue in court that the limitation period should not apply because of concealment or mistake.

 

As Acerfan had not issued a court claim when posting this question, and appears not to be considering contesting the effect of the Limitation Act, then it would be right that the charges now older than 6 years would not form part of the court claim - as the bank will have a legitimate defence in saying that this part of the claim is now time-barred. In order to protect your right to claim charges within the six years you have to start court proceedings within 6 years of the earliest charge being made. Time does not stop running when you write to the bank and dispute the charges.

 

The only time that it becomes important to note when you first became aware of the unlawful nature of the charges by the report of the OFT is if you are claiming that s.5 of the Limitation Act should not have effect because of the bank's concealment and/or mistake, under s.32. In that case the 6 year period starts to run when you first became aware of the facts of the concealment or that led to the mistake. ie. you get six years from April 2006 in which to start your court action, and the backward-looking 6 year time frame does not apply.

 

As regards Acerfan's query about the bank not offering to pay the interest, I think that is a dilemma being faced by increasingly more people on the site - whether to start your court claim for just the interest when the charges have already been refunded. I think I would pursue it, even to get the statutory 8% in the alternative (which you would have to state in your claim in order to get it) is better than nothing and you would also be entitled to your court costs.

 

I didn't get a response to my suggestion for a new forum section for claims with contractual interest. Shame:( Maybe a few of you could respond to my suggestion thread? http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/49074-can-we-have-new.html#post393963

 

Come on I know how good you all are at piling the pressure on!!

[maroonfox5]

Acerfan....

Definately do what Westy has advised.There's no race here you know just because you have LBA'd them and given 14 days ,you can still write further letters .after all the procedure is not set in stone(you set the timetable and agenda).

My advice is spend a little more time and get as much as you can off them.

 

You know it makes sense.

Regards

 

MF

[natwesttookmymoney]

First - Acerfan, I think Bill-K's probably right.

 

Hi, Bong

 

I can see you've been on this site much longer than I and posted a great many more items but, with the greatest respect, I have to differ from your conclusions.

 

"As Acerfan had not issued a court claim when posting this question, and appears not to be considering contesting the effect of the Limitation Act,"

(a) - says who? No-one, as far as I could see, is suggesting that he launches a heroic crusade against the banks; on the other hand, he's getting some rather misplaced suggestions that he should reduce his legitimate claims by interest, or now by the LimitationsAct, and these suggestions are definitely not in his interest.

(b) contesting the Limitations Act doesn't have to be a separate action - it can be included in the claim IF the bank decides to defend any part of the claim on the basis of the Limitations Act. That isn't writing a letter back saying the claim is without merit, will be defended and will lose, in part because it falls under the scope of the Limitations Act - the standard old rubbish we all know about> It's if the bank decides to include it in its DEFENCE - the actual defence, filed with the court. If it does so then one responds that it falls under S32, concealment. Don't the template particulars of claim talk of concealment?

"then it would be right that the charges now older than 6 years would not form part of the court claim - as the bank will have a legitimate defence in saying that this part of the claim is now time-barred." Let it go ahead and make that defence and contest it. What's the worst that can happen? You get to court, in front of the judge and s/he says to Acerfan - no, those two, three or few items are time-barred. They will be disallowed. As for the rest.... And what are the chances of the case being heard before a judge, eh? One has to prepare for it but....

"In order to protect your right to claim charges within the six years you have to start court proceedings within 6 years of the earliest charge being made."

With the greatest possible respect, you're wrong. Even on the basis you argue, it isn't when the claim goes in, it is, at the very latest, when you send your request for repayment. That's when the negotiations start: the filing of the court case indicates the point at which negotiations appear to have failed.

"Time does not stop running when you write to the bank and dispute the charges."

See above.

Westy

[Acerfan]

Thanks everyone for all your advice

 

Had no idea I could claim back past the six years, so will definitely be looking into that further. As this is my biggest claim I think it will be worth waiting a bit longer, tempting though it is to take the money & run.

 

My only other query is regarding the contractual interest & overdraft. I have been claiming contractual interest from them at 15.9% as for the 1st three (ish) years I'm claiming for I was overdrawn. However, for the latter part of the claim I had no overdraft as they'd forced me to give it up & amalgamate this & other debts including interest free overdraft into 11% managed loan. If I were to calculate the changing interest I guess I would have to do 2 separate spreadsheets, 1 before managed loan & 1 at managed loan rate. However, there would also be the complications of the fact I'm now having to pay interest on interest free O/D as a direct result of charges (it was cos of charges I was so overdrawn - if it hadn't been for charges I'm sure I wouldn't have been forced into managed loan)

 

I was advised just to claim contractual interest at 15.9% in one spreadsheet cos it would be too complex. Wish the claim was bigger so I could get rid of bl**dy managed loan, but to be honest I need something to reduce monthly outgoings so will have to pay off other debt with the cash...unless anyone has any ideas on managed loan front, ie how to get them to reduce payments/interest?

[Guest bong]

"In order to protect your right to claim charges within the six years you have to start court proceedings within 6 years of the earliest charge being made."

With the greatest possible respect, you're wrong. Even on the basis you argue, it isn't when the claim goes in, it is, at the very latest, when you send your request for repayment. That's when the negotiations start: the filing of the court case indicates the point at which negotiations appear to have failed.

"Time does not stop running when you write to the bank and dispute the charges."

See above.

Westy

 

With the greatest respect to you also westy, I am not wrong here. I have checked out my facts and read a case that has already presided over this issue. Bringing the action (as in s.5 Limitation Act) does relate to issuing the claim at court, not pre-court negotiations. If you have any other information to back up your claims please post it up so we can comment.

 

I agree that Acerfan could argue that there should be no backward looking time limit because of s.32 LA, but that is a separate consideration for Acerfan to give to the claim. It might be an action we would take and recommend even, but we shouldn't presume that it is now a standard line of attack. The template particulars of claim do not cater for that. And I'm not aware of anyone winning a claim for charges older than 6 years yet.

 

I think Bill's revised LBA sounds like the best option if Acerfan wishes to pursue that route.

[natwesttookmymoney]

Hi

Bong, we have so much respect for each other we should start a mutual respect thread!

I think JonCris in the thread you referred to has made some very valid points, especially about asbestosis claims - the cause of which can go back 50 years. The precedent established in those cases is when the breach was discovered - you can't claim for asbestosis within 6 years of being exposed to asbestos dust if you haven't got asbestosis, though it may have been building up all that time.

The example given of people arguing a point for so long that it's getting to six years from the point of discovery is valid but the launching of action is described as 'protective' - in other words, they want to argue about the event, not be diverted into arguing on limitations.

I shall be putting my money where my big mouth is - I'm about to launch a claim against Barclays, in respect of an account that was closed 4 years ago, over charges going back to 1996. So it's not entirely hot air I'm spouting!

Westy

[bill-k]

Good morning, indeed, folks.

 

I've not gone this far, yet, so will have to watch silently (now there's a nice surprise). What Bong says about making the distinction between those who only want to claim within 6 yrs, and those who choose to go all the way seems fair enough. I intend to go all the way with one bank, but cannot do so yet, due to an IVA. I have, however, claimed the last 6 years from them (and got it in full), so I made that distinction myself, and will do so again, later. But in both cases, as Westy has pointed out, it is up to the bank to claim Limitation in their defence, and not us, I believe. If one claims only 6 yrs, then of course they will not use the LA, but if one claims beyond that, then they might. What we have to do is make ourselves aware that this might be used, or that the Judge might bring it in, but we keep the "concealment" rebuttal to it to ourselves until we have to use it. That's my take.

 

Not sure about the timing bit, but I would have thought that counting back from the first request for payment (prelim) was the more reasonable. After all, that is when one effectively commenced seeking remedy or recompense. Just my guess, though FWIW.

 

Bong, origami champ, you're not getting much support from me here !! I'll click on your link, to hopefully make amends. As this weekend saw the CAG rally/booze up and its' aftermath, then maybe they're a bit slow on admin stuff at present, gawd bless 'em !!

 

PS Sorry - new posts while I was struggling !!

[Guest bong]

Hi

Bong, we have so much respect for each other we should start a mutual respect thread!

 

good luck with your claim westy, I believe we can beat them on this.

 

PS you still haven't managed to convince me on the issue of what can be included in your claim under the normal six year rule for contracts. I'm not sure the asbestos claim falls within a cause of action under contract.

[natwesttookmymoney]

Hi

"I'm not sure the asbestos claim falls within a cause of action under contract."

No, it clearly doesn't but the wonderful thing about English Law is precedent. the asbestosis claims establish a precedent relating to the Limitations Act. These (bank) actions could be argued to be stronger because of section 32 (isn't it?), which talks about concealment. The banks' ongoing actions demonstrate a policy of concealment.

Westy

[cankster]

I'm currently claiming both contractual interest and ovrr 6yrs from halifax.

 

Have got as far as a court date.

 

Would any of you like to take a peek at my thread, and advice/info would be great.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank/11164-cank-halifax-4.html?highlight=cank

[natwesttookmymoney]

Acerfan - re your post no. 729.

 

"My only other query is regarding the contractual interest & overdraft. I have been claiming contractual interest from them at 15.9% as for the 1st three (ish) years I'm claiming for I was overdrawn. However, for the latter part of the claim I had no overdraft as they'd forced me to give it up & amalgamate this & other debts including interest free overdraft into 11% managed loan. If I were to calculate the changing interest I guess I would have to do 2 separate spreadsheets, 1 before managed loan & 1 at managed loan rate. However, there would also be the complications of the fact I'm now having to pay interest on interest free O/D as a direct result of charges (it was cos of charges I was so overdrawn - if it hadn't been for charges I'm sure I wouldn't have been forced into managed loan)

 

I was advised just to claim contractual interest at 15.9% in one spreadsheet cos it would be too complex. Wish the claim was bigger so I could get rid of bl**dy managed loan, but to be honest I need something to reduce monthly outgoings so will have to pay off other debt with the cash...unless anyone has any ideas on managed loan front, ie how to get them to reduce payments/interest?

 

Not too different myself. I had a loan to clear o/d as well - the o/d being largely generated by charges.

I believe the important thing is to get all papers from the bank related to 'all transactions with your organisation', as the SAR letter says. I'm pulling everything in my NatWest case under one roof, i.e., one spreadsheet. Loan and everything. I'm using the contractual interest rate, as you are, for the lot. I know the 'managed loan rate' SAYS 11 per cent but what is the EAR? That's the one that's important. I think you'll find it's around the same rate as your authorised overdraft.

Two spreadsheets, with different rates, is a belt-and-braces approach, so I wouldn't argue against. One may be easier to handle. Up to you.

The key thing is that you've been paying interest on the charges, whether in o/d or loan, so it's a financial loss you ahve suffered - you're not going after them for profit. With the 8 per cent on top, it could get you a long way towards clearing everything off.

As for negotiating reduction in managed loan payments - I leave that entirely to you! It's not something I've done, except when increasing the amount borrowed - then I negotiated to get it over a reasonable time so's I could afford the monthly payments. The last one was in October (hurray!).

 

(As an aside, the ongoing interest being added to the loan and o/d could be argued to mean that the breach of contact penalty is ongoing, too, right up to the point where all the interest has been paid. But let's not go there again!!)

Westy

[Guest bong]

Hi

"I'm not sure the asbestos claim falls within a cause of action under contract."

No, it clearly doesn't but the wonderful thing about English Law is precedent. the asbestosis claims establish a precedent relating to the Limitations Act. These (bank) actions could be argued to be stronger because of section 32 (isn't it?), which talks about concealment. The banks' ongoing actions demonstrate a policy of concealment.

Westy

 

As I have just posted in Acerfan's thread, I have now looked it up and the Asbestosis claims were personal injury claims brought under s.33 LA. Our bank claims do not fall under the same category.

 

Bill you swine!! I won't let you get away with that, I'll..I'll...I'll do some origami on you!!!! I agree it sounds reasonable but we need to work with the facts. Otherwise rumours soon get around the site and before you know it hundreds of people are off on the wrong course.

 

No hard feelings anyone - its only a debate after all:)

[bill-k]

Bill you swine!! I won't let you get away with that, I'll..I'll...I'll do some origami on you!!!! I agree it sounds reasonable but we need to work with the facts. Otherwise rumours soon get around the site and before you know it hundreds of people are off on the wrong course.

 

No hard feelings anyone - its only a debate after all:)

 

Point taken, Bong. It's the cold hard facts that matter, and how we use them. We need guys like you & Westy to thrash that stuff out for us all to be sure we know where we stand. The court isn't interested in our feelings and inclinations. And misinfo spreads easily, you're right, despite copious amounts of IMHO's & FWIW's !!

 

I consider myself to have been well and truly folded up, now !!

[natwesttookmymoney]

Bong:

"Our bank claims do not fall under the same category."

I've asked the bank on five occasions (so far, including the claim) to explain their charges. Each reply is the same - 'fair and transparent'. No attempt to explain, disclose or justify their costs.

That, in my book, is concealment.

Westy

[Guest bong]

I know westy and I agree with you 1000% over the concealment.

 

but you are steering us away from the original query, which was over the standard time limit everyone has to bring an action, assuming that you are not going to argue that there has been a concealment or anything else in the way of an obstruction to your bringing the action earlier.

 

It is likely to involve a protracted dispute with the bank and could end up in court, with everything else already paid up, except the older charges. I don't know - is it possible for them to argue the limitation issue in court without addressing the lawfulness of the charges? Not everyone wants to take the risk. However I think when we start to get some results on claims that are currently in the system that might start to change people's minds - either for or against depending on the outcome!!

[natwesttookmymoney]

I think the concealment, the limitations act and refund claims are interlinked with claims that go back more than six years (and, BTW, I concede your point about date of action and stand corrected).

I don't say everyone should do this - maybe even wait to see how I get on with Barclays - but the longer-standing charges are still unlawful. It is purely that the ordinary person didn't realise -because of concealment - that they were until the last few months. I will be putting in my claim on that basis. If Barclays wish to reject part of the claim as being time-barred, they are at liberty to do so. I shall argue the case should proceed on concealment. It isn't separate, it's an integral part of the claim - they levied penalty charges; they concealed their true nature. That is part of the basis of all these claims. The one automatically follows the other.

Westy

[Guest bong]

on that we are agreed. I am also prepared to take it to court if thats where it ends up, should be interesting.

[Guest peed orf]

Hi guys, I'm after more advise! I haven't yet sent off anything to do with my claim for HSBC. :o

I'd like your guidence on wether to split it!

It's over 3 accounts, 1st £56.50 in charges, £3,196.93 interest!!!! (1990) 2nd £277.50 charges, £1,173.59 interest!!!! (2000) And last but not (in anyway, shape or form) 3rd £4876.50 charges, £30,756.04 interest!!! (1990-2000)

I do find these totals unsettling! and I'm feeling a bit apprehensive about trying it! However, when I think of the s**t they've caused me......

 

I would like a little input, please.

Thanks.

[natwesttookmymoney]

Hi, Peed

You've got to differentiate between interest that is reclaimable and that which isn't. It looks like you've been in overdraft pretty much throughout so you CAN claim back interest on the charges themselves. You CANNOT claim back all the interest you've paid on your overdrafts.

So, in a/c 1, you can claim back interest on those charges from the date they were levied - I doubt it will come to £3196.93, unless they were incurred in about 1972, during the period of hyper-inflation! Same with the other two.

If you use the spreadsheets, enter the date of claim and the itemised charge amount, the column to the right should give you the total of interest. Today's (or the claim) date should be entered in the area at the top. Does this make sense?

Westy

[Guest bong]

Hi P'O.

 

I think I would be tempted to go for the first account first. then if they settle you will have good ammunition to go back with for the other two, even if its an out of court settlement with lots of goodwill and no admissions of liability, I think their position would be weakened if they had already paid out on a certain rate of interest. that way you also (hopefully) get to keep your first claim in small claims with no costs exposure.

 

Remind me, what rate of interest have you used and was this an unauthorised or authorised borrowing rate?

[Guest bong]

we are getting quite good at these simultaneous postings westy!

[Guest peed orf]

Hi guys, the interest is 29.9%. And I also Bong, I think youv'e got a good point about once they've paid one...

I'll do the 2nd first (!!!!!!) that one has better balance of charges to interest.

Is there a Prelim for contracual interest around, I have scouted the site, not found one yet.

Thanks.

[Guest bong]

This is what Glenn used in his LBA (I'm sure he'd be flattered to hear its being copied) -

 

I calculate that you have taken £xxxx.xx plus £xxxx.xx which you have charged me in overdraft interest for the sum which you have taken. Further I am claiming the contractual rate of interest at 28.7% per annum giving a total claim of £xx,xxx.xx as of the date of this letter. I should advise you that interest is accruing on a daily basis and early settlement of this claim is in your interest.

 

Yes I agree go for the 2nd one first, otherwise you'd be tackling the limitation issue aswell which might prolong the dispute.

[Guest peed orf]

Yes I agree go for the 2nd one first, otherwise you'd be tackling the limitation issue aswell which might prolong the dispute.

 

I missed that one too! Thanks

 

Doing prelim now.

[Guest peed orf]

One small point, I don't actually have anything with the interest rate on. Is that likley to be a problem, should that not be the rate they were using at the time?