Comments on the exemption of bank charges from the lmitiations act

[un1boy]

Hi

 

I have found this in the lmitations act:

 

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;

  [*]the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

  [*](2) 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. . . . (5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).

Now, I am currenty in the process of claiming abck charges further than 6 years on the basis that the bank have concealed informaiton and charged to make money.

 

In this instance, I blieve that 32(1)(b) would be relevant and I will claim under that!

 

Any and all comments welcome!

[un1boy]

For youe reference, section 14a says:

 

 

14A

. . .
(5) For the purposes of this section, the starting date for reckoning the period of limitation under sub-section (4)(b) above [i.e. three years] is the earliest date upon which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both:-

(a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in subsection (8) below.


(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8) The other facts referred to in subsection (6)(b) above are -


(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and © if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.


(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire . .


(a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

[un1boy]

And section 2 says:

. Time limit for actions founded on tort

An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

[Mad Nick]

Hi,

Now, I am currenty in the process of claiming abck charges further than 6 years on the basis that the bank have concealed informaiton and charged to make money. In this instance, I blieve that 32(1)(b) would be relevant and I will claim under that!

I wouldn't accuse them of concealment directly. I would argue that it must either be concealment or, if it isn't, it must be a mistake in which case you can use 32(1)© and Deutsche v Inland Revenue (which ruled on restitution in relation to mistake of law). And I would suggest seeking postponement of the period of limitation until the date of OFT report about credit cards (Apr 06) because you can argue that this was when you became aware of the probable unlawfulness of the default charges - up until then you were influenced by their own portrayal as a responsible Bank who acted iaw all applicable Law and their published default charges - which is why you, like everyone else, paid the charges. Regards, Mad Nick

[un1boy]

Hi, I wouldn't accuse them of concealment directly. I would argue that it must either be concealment or, if it isn't, it must be a mistake in which case you can use 32(1)© and Deutsche v Inland Revenue (which ruled on restitution in relation to mistake of law). And I would suggest seeking postponement of the period of limitation until the date of OFT report about credit cards (Apr 06) because you can argue that this was when you became aware of the probable unlawfulness of the default charges - up until then you were influenced by their own portrayal as a responsible Bank who acted iaw all applicable Law and their published default charges - which is why you, like everyone else, paid the charges. Regards, Mad Nick

 

Some good comments Mad Nick, thank you very much!

 

I'll keep this updated with progress!!

[Spiceskull]

You need to be careful of what you accuse them of withholding or mistakenly leading you to believe:

 

That the charges and rates are publicised is not in dispute...they will argue this, and usually it is the first response they give to an LBA - "...our charges are published blah blah..."

 

What you could/should claim was withheld from you is the fact that the terms invoked for the penalty were/are unfair, and that the penalty itself is/was unlawful...

 

If they genuinely did not know that the term was unfair or that the charge was unlawful then you will seek relief from their mistake...

[un1boy]

You need to be careful of what you accuse them of withholding or mistakenly leading you to believe:

 

That the charges and rates are publicised is not in dispute...they will argue this, and usually it is the first response they give to an LBA - "...our charges are published blah blah..."

 

What you could/should claim was withheld from you is the fact that the terms invoked for the penalty were/are unfair, and that the penalty itself is/was unlawful...

 

If they genuinely did not know that the term was unfair or that the charge was unlawful then you will seek relief from their mistake...

 

Hi Phoenix - I was thinking that you hadn't been around for while, how is everything?

 

Thanks for your comments mate.

[Spiceskull]

I'm fine...busy couple of days ahead...tripping to London and back, sprog in tow...I have a well crafted paragraph or two relating to the "withheld" argument...I have used it with HSBC a few times and can let you have a copy if you wish...

[un1boy]

I'm fine...busy couple of days ahead...tripping to London and back, sprog in tow...I have a well crafted paragraph or two relating to the "withheld" argument...I have used it with HSBC a few times and can let you have a copy if you wish...

 

That's great Phoenix, glad things are good with you.

 

Yes, if you could can you email it that would be great?!

 

Let me know if you need my email address and I'll PM you it.....

[Spiceskull]

Here you go:

With respect to my intention to reclaim the charges unlawfully applied between mid 1982 and March 2000, the subject of statute barred claims has been discussed previously. My position remains that the exemption clauses apply, and that I would be successful in defending this first principle of my claim.

 

At no time have I implied that your client withheld either the fact that penalty charges would be applied, or the level of those penalty charges. I maintain that your client withheld the fact that those penalty charges were unlawful, and/or that the contract terms invoked to apply those penalty charges were unfair terms.

 

If your client truly believed that the penalty charges were lawful, and/or truly believed that the terms invoked were fair, then I contest that your client was, and continues to be, mistaken in this belief, and therefore I invoke the exemption clause to seek relief from an error, or mistake, made by your client.

 

Therefore I contest that my claim for penalty charges outside the six-year period are NOT statute barred, and that I will continue to pursue for recovery of those penalty charges.

You will need to jiggle it around a bit, and obviously make reference to those clauses, but this quote is for the purpose of countering their "...our charges and rates are published..." argument.

[un1boy]

Here you go:You will need to jiggle it around a bit, and obviously make reference to those clauses, but this quote is for the purpose of countering their "...our charges and rates are published..." argument.

 

That's great, thanks mate!

 

And this has worked for you with HSBC has it?

[Spiceskull]

That's great, thanks mate!

 

And this has worked for you with HSBC has it?

Ummmm...not exactly. They accept this argument in principle, but still insist I provide them with proof that penalties were actually applied...something that is proving most bothersome at present...

 

They are holding out on my fiched statements because they know that the exemption clauses apply...so, if you have statements and use the above argument (in spirit) then you should be successful like Bong was...

[un1boy]

I see....

 

Have u got a link to your's and Bong's threads?