Claiming beyond 6 yrs - important new information!!!

[sansho]

Thanks mendipman1 and photoman1 for taking a stab at this..

 

I understand there are no established legal precedent or case, where it has been held that bank charges are penalty charges or indeed unlawful. My drift is simply that, concealing the true costs of the charges does not necessarily imply that the charges have failed the test of reasonableness or have been found wanting by any legal statute or case.

 

This should be seen as the "cart before the horse" strategy a lot of banks are trying to use, to reduce the amount of charges they have to pay out on. They know for a fact they will ultimately lose the case as a whole on the test for reasonableness for the charges.

 

However, the discussion about the true position and reasonableness of the charges will not be heard in a preliminary hearing to strike out or narrow elements of the charges that exceed the 6 year limit imposed by LMA until a later time when the proper hearing on the unlawful and punitive nature of the charges takes place (if at all it does).

 

My worry is that the bank may succeed in wiping off a reasonable chunk of the charges, before they eventually rush to settle out of court on the eve of the main hearing. Which will make it appear on the face of things that they have been rewarded for their illicit actions and have partly defeated a claim in unjust enrichment.

 

I will appreciate any input as there are a lots of tricks to the legal trade. If you hedge the wrong bet you lose.....

[Mendipman1]

sansho

 

I'm ultra cautious on 'lay' advice, me thinks the right approach from BankFodder & or whoever, should get Tom Brennan LLB signed up to Consumer Action Group under the appropriate alias! Commend The Sunday Times: Money: 29 April 2007 'Battle of the banks hots up with legal challenge'.

"A judge has also fined Lloyds TSB for delaying the payment of an overdraft charge claim, saying the bank had no intention of taking the case to court". (ST: 29 Apr)

[BigFatGreedyBanker]

I personally would include it from POC stage.

 

Not meaning this to come across wrong (and I note the use of the word personally) but is this the official CAG line?

 

I'd appreciate a point in the right direction with whether or not to make reference to the Limitations Act? I have read through various threads but most notiably Bong Vs HSBC thread who has mentioned it from the offset and Glenn Vs Abbey thread who has advised not to until it is brought up.

 

There is no duty to refer to it in POC or at all unless they raise it in their defence, however, I know one user had her POC returned and told to take out the older charges where she did not refer to the Limitation Actin her POC. Also another court struck out a claim on its own motion where the claim was entirely made up of an ERC outside the limitation period. Also its more likely that the defendant will apply to have part of the claim struck out. There is the opportunity to object to strike out, however, this is more likely to end up in a hearing. Including the Limitation Act in your POC will not completely eleminate the risk of strike out but would make it less likely.

 

If it should be included, can someone point me to some pre-6 year wording for the POC please?

 

Thanks guys.

[chorlton1]

For what its worth, called Barclays at the end of last week requesting statements from 1994 to 2000, and they said no problem, will send them out to me in the next week or so.

 

Havnt tried any of the cards yet - MBNA was slow enough to get 6 years so fascinated by how they will respond.

[Mendipman1]

Await with interest interpretation of todays judgment in favour of Lloyds/TSB.

 

The Times:UK Business 15 May 2007 'Judge issues warning to banks'.

"A High Court judge has told banks that he may award damages if they fail to behave reasonably when customers seek redress in the courts for bank charges. Judge David Mackie QC at the London Mercantile Court where about 300 claims for refunds of allegely unlawful charges have been lodged this year. He said some banks were wasting time by saying that they would defend claims".

 

On further study of FSA letter to BBA 9 February 2007

FSA Submission to the 2007 Review of the Banking Code: Principle 6 ‘a firm must pay due regard to the interest of its customer and treat them fairly: Instead a more principled-based approach might suggest that the BC should require banks to have a written fraud/liability policy that is clear and visible and provided to new and existing customers. This policy would for instance set out what guarantees the bank offered in cases of fraudulent transactions. The policy would set out what the procedure is in the case of disputed liability between the customer and the bank including details of the FOS’.

BankFodder we desparately require some professional definitive legal imput!

[boobyerp]

just subscribing

[bluedannyw]

I've managed to wangle some more statements from tsb. They go back to april 97. I suppose this is allowing 10 years. However a bit worried about claiming these now as I've had 2 n1 forms back from court today on a couple of other claims I've submitted. These have come back due to the fact i am claiming simple contractual and the court wants me to supply a copy of The contract. So i doubt they would allow me to put in charges over 6 years old.

[Muffintop]

Been pushing for my statements post 6 years from Nationwide. confused about whether its wise to try to claim post years now or is that if you try to add contractual interest and not the normal 8%? should I continue with my quest or is it dodgier trying to go back more than 6 years and why?

 

SKEGGSY. NATIONWIDE 2 CLAIMS 1,900 AND 950 WON

[Mendipman1]

BBC Radio 4 'Today' did all us victims proud this morning, two slots, our own spokesman & a conceeding BBA Angela Light. BBC - Radio 4 - Today

 

Awaiting BankFodder to depose a cogent state of the play as to where we are, post Lloyds/TSB.

[BigFatGreedyBanker]

...confused about whether its wise to try to claim post years now...

 

...should I continue with my quest or is it dodgier trying to go back more than 6 years and why?

 

I've asked that a couple of times but no one seems to want to answer. I've also asked if I should put the pre-6 year argument in my POC but again no one seems to want to answer that either.

 

Its a bit hard to feel confident about pre-6 year claims when no support is forthcoming. :-|

[zootscoot]

BBC Radio 4 'Today' did all us victims proud this morning, two slots, our own spokesman & a conceeding BBA Angela Light. BBC - Radio 4 - Today

 

Awaiting BankFodder to depose a cogent state of the play as to where we are, post Lloyds/TSB.

 

 

See:

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/90521-lloyds-victory-birmingham-perspective.html

 

Originally Posted by skeggs885

...confused about whether its wise to try to claim post years now...

 

...should I continue with my quest or is it dodgier trying to go back more than 6 years and why?

 

It has always been 'dodgier' to claim post 6 yrs simply because this is still in its infancy and has not been fully tested. There is no reaon why the Lloyds claim would have any bearing on this. The claimant lost because he did not include a copy of the T &Cs in his bundle which he was relying on in his argument.

 

I've also asked if I should put the pre-6 year argument in my POC but again no one seems to want to answer that either.

 

 

I have posted this in this thread somewhere before.

 

Its a bit hard to feel confident about pre-6 year claims when no support is forthcoming. :-|

 

Appologies but there is an awful lot going on at the moment

[BigFatGreedyBanker]

It has always been 'dodgier' to claim post 6 yrs simply because this is still in its infancy and has not been fully tested.

 

Hi Zoot and thanks for the response. I was under the impression that as per the CAG announcement, pre-6 year claims should now be seen as "standard" claims. Are CAG retracting from this position now?

 

I have posted this in this thread somewhere before.

 

I saw that you recommend including pre-6 year arguments in the POC (If that's what's being claimed). But I can't find any "official" or even "semi-official" CAG wording. Does some exist? I only ask because if these are standard claims then surely there should be some standard wording/info?

 

Thanks.

[kennyh]

Appologies but there is an awful lot going on at the moment

They're trying fer c********es!

[zootscoot]

Add this to your template POC:

• a). In so far as any charges relating to the period before xx/xx/xxxx, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.
   
  b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.
   
  It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public.

[kennyh]

Many thanks Zoot. This WILL be put to good use.

[Perseus]

Add this to your template POC:

The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

 

Hi Zoot.

Thank you for the POC details, but could I ask;

Would a judge/court ask for clarification of the above quote...ie where it came from, how it is relevant etc.

Not wishing to undermine your work, just thinking ahead that the court always ask for crossed t's dotted i's etc.

Thank you.

P

[Guest bong]

why did DJ Cooke rule that evidence "estimates which have been made in the media" was inadmissible ?

[zootscoot]

Matters of admissable evidence will be decided at a later stage. There have been differing views from judges regarding evidence one judge has specifically requested inclusion of the Whistleblower program in the bundle.

 

DJ Cooke's statements in the Lloyds case, relating to 'estimates in the media' is something quite different from the whistleblower evidence we have.

[BSJWright]

I had an account with Nationwide which was closed in 2001. They have used the Limitation Act 1980 as part of their defence, citing that "Insofar as the claim relates to charges debited to the claimant's account before 16/04/01 it is barred by virtue of the provisions of the Limitations Act 1980."

 

Most of the charges I am claiming relate to the period from 22/12/00 to around March 01. I first wrote to the bank to request statements on 16/12/06. Does the Limitation Act allow them to get away with not refunding charges 6 years prior to the date the claim was made (i.e. 16/04/07), or can I claim 6 years prior to the date the letter was posted to them?

 

Now I am reading that it might be possible to go back up to 12 years, is this possible to do with closed accounts (both of the accounts that I am claiming refunds from were closed around the same time - 2000 - 2001)?

[BSJWright]

OK, anyone got any advice for me? It would be most appreciated! Thanks again.

[bennyowen]

You can claim more than 6 years. Their defence is normal for all the banks. The Limitation Act 1980 provides for suspension or postponement of the limitation period in cases such as the unlawful application of bank charges.

 

In your defence, you could argue that you only became aware of the unlawful act during the whistleblower programme on BBC on 21 March 2007 and the OFT report of 5 April 2006.

 

The fact that the banks have continued to conceal the actual damage caused by claimant's breach of contract means that they cannot rely on the Limitation Act 1980. Therefore their reliance on the Limitation Act 1980 is null and void.

 

Read the following:

Limitations Act

http://www.consumeractiongroup.co.uk/forum/statutes-library/415-limitation-act-1980-a.html

Case in the House of Lord - Read for inspiration

House of Lords - Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants)

[thebloodster]

I've got mearly all my statements for Barclays so I am going to hit them for a claim of at least £350 (got a few statements to find) from 1995 to 2000. I better open another current account i think!!

[photoman]

I had an account with Nationwide which was closed in 2001. They have used the Limitation Act 1980 as part of their defence, citing that "Insofar as the claim relates to charges debited to the claimant's account before 16/04/01 it is barred by virtue of the provisions of the Limitations Act 1980."

 

Most of the charges I am claiming relate to the period from 22/12/00 to around March 01. I first wrote to the bank to request statements on 16/12/06. Does the Limitation Act allow them to get away with not refunding charges 6 years prior to the date the claim was made (i.e. 16/04/07), or can I claim 6 years prior to the date the letter was posted to them?

 

Now I am reading that it might be possible to go back up to 12 years, is this possible to do with closed accounts (both of the accounts that I am claiming refunds from were closed around the same time - 2000 - 2001)?

 

The statute of limitations act was constructed in order to protect people from stale claims being brought against them, and so it only gave claimants 6 years from the cause for a claim to bring an action.

So, if after 6 years of having a cause for a claim (or with due diligence one should have discovered you had a cause for a claim), you had still not done so, then ordinarily you would have lost your window of opportunity.

 

However, if after 6 years you discover an act that you should have acted upon, and there are reasonable grounds to believe your right to take any action was concealed from you, or that you had made such payments whilst acting under the misatken belief that they were properly due, then you have a right under sec32 (1) ( parts b or c respectively) to make a claim for a remedy of this action.

 

 

Read this thread from the start, the very first post by Bankfodder is extremely helpful.

 

To Quote:

"Firstly, the charges campaign has been in full swing now for a good year. The banks were well aware of it a year ago and also the OFT report highlighted the law and the bank's obligations - just in case any of them were at all in doubt.

 

To my mind this is good evidence that any bank which continued its charges regime after the date of the first OFT report has been concealing its charges regime and therefore has lost the protection of the Limitation Act.

 

I do not believe that the Limitation Act offers any long-stop mechanism so that if you concealed the facts one year ago then you do not merely accrue an additional year of liability. I think that a single instance of concealment invokes s.32 and the limitation barrier falls away completely.

 

Concealment amounts to a question of the morality of the defendant's action. Once this is established then I do not believe that the courts will strive to give them any help "

 

So, any rights they try to claim for a 6 year bar under The Statute of Limitations act are negated, if not by their their past actions and claims, then certainly by their continued conduct.

Any act of concealment, whether past or present, raises any bar to a 6 year restriction.

In order to try to defend this, they will need to prove that they have never and/or are still not concealing the true nature of past or current charges.

Given that they are still trying to present the charges as legitimate costs, yet are still not disclosing the facts, or revealing how they are justified amounts to concealment.

 

Zootscoots excellent addition to a Particulars of claim deals with this issue:

 

a). In so far as any charges relating to the period before xx/xx/xxxx, the Claimant wishes to invoke s.32 (1) (b) of the Limitation Act 1980 in that the Defendant deliberately concealed the true cost of administering the contractual breaches committed by the Claimant and thus essential facts relevant to the Claimant's right of action have been concealed and continue to be concealed by the Defendant.

 

b). Alternatively, the Claimant seeks to rely upon s.32(1)© of the Limitation Act. The Claimant paid the charges in the belief that they reflected the true cost of administering the contractual breaches. The Claimant has now discovered, following revelations relating to a similar organisation, that the true costs are much lower and that the belief held by Claimant was in fact mistaken.

 

It is thus submitted that in accordance with s.32(1)(b), s32(1)© and s.32(2) that the time period for the purposes of the Limitation Act does not begin to run until the Claimant’s reasonable discovery. This was the 21st March 2007 when the revelations were made public.

[warrih]

This all makes very interesting reading.

 

At the end of the day, somebody is going to have to test this in court I feel before others will follow.

 

What's the worst that can happen?

 

If the claim was struck out due to the limitation act for whatever reason, would the claimant then have to pay out for costs?

 

If not then I struggle to see why no one has taken the step to test this theory.

 

Any thoughts?

[noomill060]

"If not then I struggle to see why no one has taken the step to test this theory.

 

Any thoughts? :wink:"

 

What makes you think other people aren't?