Claiming beyond 6 yrs - important new information!!!

[zootscoot]

Bankfodder, I would be interested in the case law you have refered to that Zootscoot has.

 

The one relating to concealment occuring after the cause of action is Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102.

 

I'n not sure if it is available on the web.

[zootscoot]

Cave v Robinson:

 

Cave v. Robinson Jarvis & Rolf [2002] UKHL 18 (25th April, 2002)

[zootscoot]

The Latent Damage Act is irrelevant but s.32 is highly relevant

[zootscoot]

You can always amend your claim once it has started to add the old charges on. If they pay out before you have your statements start a new claim. The second claim is unlikely to be classed as an abuse because they failed to fully comply with your SAR in the first instance.

[zootscoot]

I was mainly thinking that they would only give new statments close to the forty days and maybe this will be very close to court, also can i add them to my cliam once i have started court proceedings (this could be worth another £2000 or more.)

 

 

 

You don't need to give them another 40 days. Simply send the non compliance letter for the SAR. They are obliged to send you all info they hold on you under a SAR not just the last 6 yrs. If this is all they have sent they have not fully complied with your original.

 

I am a bit dubious about this as sooner or later some kind of cap will be put on things

No remember you are suing them. You decide where the cap is not them. Its you in the driving seat.

[zootscoot]

You will still get your six years charges even if unsuccessful with the pre-six years.

[zootscoot]

No its not its your second!

 

Welcome aboard Missyo6

[zootscoot]

If you only requested six years they have complied with your request. Also there is a chance they will not reply to the second as they do not have to comply with second request if it follows shortly after the first. I can't remember off hand what the relevant time period is. If you look in the DPA you will find it.

[zootscoot]

Thats the Consumer Credit Act not the DPA so it does not apply to SARs

[zootscoot]

Just a quick question - can we claim mortgage arrangement fees?

 

Barry

 

No its a fee for a service unrelated to any breach of contract.

[zootscoot]

Hi, Hope someone can enlighten me, I am claiming for just over 6 years and have received the defence from the bank solicitors as below (lloydsTSB),

I now have the court transfer of proceedings form, in the Defence the bank solicitors say "Further, insofar as part of the claimant's claim is based on charges levied on his account prior to six years from the date of issue of his claim, that is 14th March 2001, this part of the claim is statute barred by Section 5 of the limitation Act 1980. The defendant is unable to verify the amount claimed prior to the 14th March 2001 as the Statement of Claim does not show how the amount claimed is arrived at."

"The claimant's claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the bank.

 

My first letter to Lloyds was in October 2006 which is when I started my list of charges from, following the posts on this forum, is this still correct or do I need to send copies of my bank statement to the solicitors to back up where the first charges have come from,

Any help would be much appreciated, I am now waiting for allocation questionnaire.

 

Thanks all, Jamie

 

The six years does count from the date of issue in court not the date of first letter. You need to raise s.32 Limitation Act in relation to the charges in the interim period.

 

A copy of your schedule of charges as oppose to copies of your statements should suffice.

 

[zootscoot]

You have to raise s.32 to extend the limitation period in cases of concealment, mistake or fraud. The limitation period then starts from the date of discovery of the concealment mistake or fraud.

 

If you do not raise s.32 the normal limitation period applies which is taken to run from the date of the cause of action ie the payment of the charge.

[zootscoot]

[your address]

 

 

[their address]

 

[DATE]

 

 

Data Protection Act 1998

Subject Access Request

 

 

 

Dear Data Controller

 

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

I sent a request under s.7 of the Data Protection Act 1998 on XX/XX/XXXX accompanied with the appropriate fee which was subsequently cashed by yourselves. I received some of my personal data on XX/XX/XXXX. This data comprised of statements dating back to XX/XX/XXXX.

I would like to remind you that your obligation under s.7 is to supply all data held by your company irrespective of the date of such data. If you contend that you do not hold such data before this time, please could you confirm this by providing the certificate of destruction.

I would also remind you that as a Data Controller you are required to fulfill your obligations within 40 days of the receipt of request. The time period for compliance expired on XX/XX/XXXX.

As a gesture of goodwill I shall extend this time period for a further 14 days. If, however, you fail to supply me with any personal data that you hold prior to XX/XX/XXXX, within 14 days, I shall be making a complaint to the Information Commissioner in addition to seeking court action to enforce compliance.

Yours faithfully

[signature]

 

[name]

[zootscoot]

You don't need to respond to their defence at this stage. Its likely they will make you an offer at some point and exclude the older charges at which point you can then state you will be relying on s.32 LA.

 

The worst case scenario is that they pay out the rest then apply to have the older charges struck out by the court. You will then need to contestthe strike out.

 

If there is no offer before you need to file your witness statement you will need to refer to s.32 in your witness statement.

 

All the best

 

Zoot

[zootscoot]

Hi Hank

 

Do I do this in a rejection of offer letter?

 

 

 

Yes

 

Also when you mention witness statement is this part of the allocation questionaire?

 

 

No this is not until you do your bundle.

 

Will pm you photoman

[zootscoot]

Cor blimey thats a little strong Sprouty!

[zootscoot]

That is good news tumble!

[zootscoot]

Hi BF et al,

Back again in 'thick' mode. Like many others I want to pursue the 'pre 6 years' stratagem BUT, I'm sure, unlike many others I don't quite grasp the tactics. Following the advice of the early runners in the main bank campaign as a whole, I need to understand this in case the wheels come off at court.

I have read that "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. ....". If, therefore the 'period' in question runs from a current date then I'm still only going 6 years back - or am I? Just HOW do I justify claiming 12 or 15 years back so far as s32 is concerned? remember I DID say thick mode.

 

Hi Kenny,

 

s.32 (1)(b) provides that where there has been concealment of any fact relevant to the claimant's right of action the time does not start to run until the discovery of the concealment. So if a charge was incurred say March 1996 and there was concealment of a fact relevant to the cause of action for the purposes of the Limitation Act the time will start to run from discovery. So if you discover the concealment in March 2006 you have 6 years from 2006 to bring your claim ie March 2012 for ANY charges incurred under the concealment.

 

So the question then becomes what have the banks concealed. It has to be a concealment of facts as oppose to law. You can not assert that the concealed the fact that the charges were unlawful as this is concealment of the law and is bound to fail.

 

What the banks have concealed is how much it costs them to bounce a cheque or deal with other transgressions. This is a fact which is relevant to the cause of action. Without this knowledge the customer is in no position to determine whether or not they have a right of action.

 

Next question is when did the customer discover this concealment. That would be 21st March 2007... the date of Whistleblower. This revealed that Yorkshire Bank had a costing system which showed that it could not cost the bank more than 2.00 to deal with the various breaches. By implication its likely that this would be the same costing for other banks give or take a little.

 

The time then begins to run for any charges ever incurred from the date of discovery. This means that you have until 21st March 2013 to bring a claim for any charges incurred prior to 21st March 2007.

 

Hope this helps

 

Zoot

[zootscoot]

Yes you can go back to the 90s

[zootscoot]

I realise this is probably asked in the thread somewhere, but

As the data will be held manually after the 6yrs [more than likely] do we allow them more time to process the SAR?

 

 

No the 40 days is set out in statute.

 

Is there a new SAR template to be used or just alter the existing one?

 

The existing one does not specify a time limit so they are obliged to send all info they hold on you irrespective of date. Although you could alter the wording to make it explicit that you wish data prior to 6yrs.

[zootscoot]

Originally Posted by southyorksman

A question?

 

If we are claiming back charges beyond 10 years we are talking about charges pre-dating the unfair terms in consumer contracts act 1999, what law are we relying on prior to 1999?

 

IAN

The Unfair Contract Terms Act 1977 The Unfair Contracts Terms Act 1977

 

The Supply of Goods and Services Act 1982 Supply of Goods and Services Act 1982

 

The Limitations Act 1980 The Limitation Act 1980

 

HTH

 

Tanz

 

Not forgetting the common law provisions on penalties

[zootscoot]

Hello Zoot. Is that definitely correct? Is there no way that a Judge would throw out a whole claim because he/she doesn't agree with some of it being pre-six years?

 

The likelihood is the bank will admit part and defend the limitations if they are to defend at all. The judge could only strike out the claim if all charges were pre-six years and even then you would have an opportunity to object to strike out.

 

Should I mention why I think I'm entitled to it in my refusal letter and subsequent LBA? (I didn't mention it in my pre-lim).

 

 

Yes you could do a combined rejection and LBA. Simply state you will be invoking s.32 of the Limitation Act (assuming you are in England or Wales)

 

They have also said I'm not entitled to debit interest. Should I also justify this in my subsequent letters or just stick to the templates?

 

What do you mean by debit interest?

[zootscoot]

Hi, Is this the wording i need to add for my POC for pre six years? Do you think its worth mentioning s32 or not and if so where can i find some wording on it....

 

c) The defendant concealed the nature of their charges and lead the claimant to mistakenly continue to pay the unlawful charges believing that they were lawful.

 

d) The claimants right of action has been deliberately concealed from her by the defendant.

 

e) The defendant continues to conceal both the nature of their unlawful charges and account holders rights to recover unlawful charges.

 

Regards

Aoife

 

No you need to state that they concealed the cost of dealing with your breaches of contract. There is no need to show the concealment lead to the mistake thay are alternative arguments and not linked. The concealment must relate to facts and not law.

 

Perhaps something on the lines of:

 

In so far as any charges relating to the period before xx/xx/xxxx, the claimant wishes to invoke s.32 of the Limitation Act 1980.

 

The Defendant deliberately concealed the true cost of adminstering the contractual breaches committed by the Claimant and thus an essential fact relevant to the Claimant's right of action was concealed.

 

Alternatively 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 likely to be much lower and have thus been concealed and continue to be concealed by the Defendant 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 my reasonable discovery. This was the 21st March 2007 when the revelations were made public.

[zootscoot]

nervous- The Limitation Act 1980 applies in Northern Ireland just as it does in any other part of the UK.

 

...Except Scotland

[zootscoot]

I like that Zootscoot, would it be worth adding this into POC or waiting to a later stage of developments:

 

"If the charges are time barred by virtue of Section 5 of the Limitation Act (1980) then I contend that the Defendant has concealed, and continues to conceal that the charges debited are unlawful. If this is not the case, and the Defendant truly believes that these charges are lawful, then I contend that the Defendant is mistaken. As I only became aware during March 2006 that the charges debited were unlawful, then section 32(1)(b), or section 32(1)©, of the Limitation Act 1980 should apply, and the charges debited are therefore within the primary limitation period."

 

 

Or is this repeating the above a bit?

 

Tanz

 

The concealment under s.32 (1) (b) must relate to the facts not the law. You can not therefore claim that they concealed that the charges were unlawful.

 

They concealed the cost of administering the account for breaches of contract which prevented you from being able to determine if the charges were lawful. Which is a concealment of a fact relevant to your right of action. They can not conceal the law from you as this is in the public domain.

 

In relation to mistake under s.32(1)©, it must be the claimant who is mistaken not the defendant.

 

You need to make reference to the Limitation Act in your POC otherwise the defendant is likely to go straight for strike out for the charges outside the six year period.