Limitation Act 1980: Let's knock it on the head

[paulwlton]

Seminoles case is different because he's contesting charges whithin a debt thats not time barred primary, in normal cases you would only be able to use the concealment are mistaken argument, Seminole has been very clever, i wonder if bf has been involved too.

[blueskies]

I'm not so sure. Not so much with a bank account that has credit balances but with a credit card balance that is always negative it could be argued that as the whole amount forwarded by way of credit or charges has not been repaid and it is impossible to say which of the charges remain on the account as they are collated. Therefore the (otherwise) statute barred charges remain on the account.

[paulwlton]

Say i had a credit card in 1996 and the balance was in debit by £5000, i then binned the card and made the minimum monthly payments for the next ten years, this being a debt, as i see it this wouldn't be time barred due to the fact i have aknowledged the debt and made regular payments, could any charges in that period be reclaimed as they were illegaly added to the account. Another fly in the ointment, say in 1997 i had used the credit card and notched up another £1000 which didn't register on the account, (near imopossibe) would this be time barred as it was 9 years ago. i think not.

[Seminole]

Nat West have until 2 August to file their defence. I think I've painted them into a corner where they will have to either directly address the Limitation issues or concede. I think they'll fight and the forum will be the first to hear what argument they intend to use.

[paulwlton]

I don't think Nat West will be looking forward to this at all, good luck.

[blueskies]

Having had the priviledge of Seminole explain his arguement in person to me I really don't think that you can argue against it. I look forward to the developments in this case.

 

Good luck again Seminole

[deemacperth]

My tuppence worth on the subject.

 

Firstly - It's the Unfair Contract Terms Act not Unfair Terms (Contract) Act

 

Secondly - Section 24 of the Limitations Act 1980 states:

 

(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

 

 

CCJ's can and have been Statute Barred. A company can apply to a court to extend the period, but they must have good reason.

 

Thirdly - Section 32. The biggie.

 

Scenario. Me and Mr Bank Manager

 

Me:

"You've been taking charges off me for the last 9 years and I've just found out it's wrong"

 

Bank Manager:

"Tough, we don't say it's wrong, anyway your debts are barred after 6 years"

 

Me:

"Okay, I'll take you to court and claim under section 32 you deliberatly concealed your charges from me"

 

 

Bank Manager:

"We'll say we never deliberatly concealed them, we're saying they're not unlawful, if it turns out they are then we just made a mistake. Sorry"

 

And at this stage I shall then rely on Section 14A of the Limitation Act 1980. As Mr Bank Manager has clearly breached his fidicuary duty to me, I feel he has acted negligently in acting in my best interests. I won't quote the whole of section 14A as it's quite long, it's here:

 

http://www.lawcom.gov.uk/docs/cp151apa.pdf

 

The relevant points are:

 

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

 

(4) That period is either--

(a) six years from the date on which the cause of action accrued; or

(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

 

(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on 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.

 

 

 

These subsections state that if someone has acted negligently, then the event becomes statute barred six years from the cause of action OR 3 years from discovery of the negligence whichever date is LATER

 

(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.

 

 

So, does anyone else think that the bank should have realised they were making all this profit from somewhere? And just what do all their Lawyers and Accountants get paid for? Expert advice perhaps?

[Movingon]

Just one small point; we're not arguing that the banks concealed their CHARGES. We're arguing that they concealed the fact that their charges are UNLAWFUL. Obviously they;re not concealing their charges, they appear on our statements!

[paulwlton]

Section 24 of the Limitation Act 1980 provides that no action can be brought on a judgment after six years from the date that it became enforceable. However, that only applies to the commencement of fresh proceedings on the judgment, and not to procedural steps in the original action to enforce the judgment. In practice, warrants must be renewed after 12 months, and leave to proceed with enforcement is required after the expiration of six years. In cases where a hearing is necessary, e.g. garnishee or charging orders, leave can be sought at the hearing. In other cases, e.g. warrants of execution, an application for leave to issue is needed (See Lowsley v. Forbes (1998) 3W.R.L. 501 - charging order made 111Ú2 after the judgement). Application must be by notice, pursuant to paragraph 2.1 of the Practice Direction to Part 23 of the Civil

[paulwlton]

section 24 has i read it, is saying the creditor, after 6 years is time barred from imposing warrants etc, but is able too from the date of judgment up to 6 years after. I don't think this is relevant in seminoles case, a ccj can legally be enforcable even after no contact has been made for 6 years

[deemacperth]

Disagree slightly with you.

 

Agreed that a creditor has to seek permission to execute a judgement after 6 years, but all they're doing is seeking the courts permission to set aside the Statute of Limitations. Note the 6 year period there.

 

And agreed on warrant execution time limits, CPR Order rule 26 covers that.

 

It's not just a formality though, the creditor needs to set their argument as to why they're extending it and the Statute of Limitations does not take away the courts discretionary powers to decide a case how they see fit. That's what the appeals process is for.

 

Tom, cheers for the correction, I think you got the gist though, I was meaning that Mr. Bank Manager was concealing the NATURE of his charges from me.

[deemacperth]

Actually I just re-read your post there. You're saying a ccj can legally be enforceable even after 6 years of no contact. No, that's wrong.

 

Civil Procedure Rules CCR Order 26 rule 5 states:

 

(1) A warrant of execution shall not issue without the permission of the court where

(a) six years or more have elapsed since the date of the judgment or order;

(b) any change has taken place, whether by death or otherwise in the parties entitled

to enforce the judgment or order or liable to have it enforced against them;

© the judgment or order is against the assets of a deceased person coming into the hands

of his executors or administrators after the date of the judgment or order and it is

sought to issue execution against such assets; or

(d) any goods to be seized under a warrant of execution are in the hands of a receiver

appointed by a court.

(2) An application for permission shall be supported by a witness statement or affidavit establishing the applicant's right to relief and may be made without notice being served on any other party in the first instance but the court may direct the application notice to be served on such persons as it thinks fit.

(3) Where, by reason of one and the same event, a person seeks permission under paragraph (1)(b) to enforce more judgments or orders than one, he may make one application only, specifying in a schedule all the judgments or orders in respect of which it is made, and if the application notice is directed to be served on any person, it need set out only such part of the application as affects him.

(4) Paragraph (1) is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order.

 

 

They still need to seek the courts leave.

[paulwlton]

Sorry i should have stated after a court hearing, this is why a creditor applys for the ccj, so he can legally chase the debt indefinately. A debt which asn't been subjected to a ccj can be chased indefinately, even after no contact for 6 years, but the creditor cannot legally enforce the payment through the courts.

[paulwlton]

Could the banks be negligent? Negligence:- Failure to take proper care over something. Breach of duty of care which results in damage.

 

Breach:- An act of breaking a law, agreement, or code of conduct -a break in relations.

 

Could negligence be argued.

 

The bank as my fudiciary, failed to take proper care of my account which resulted in a breach of duty. Could this be negligence..

[Its WAR]

I have included reclaiming bank charges going back beyond six years in my claims. So far none have been questioned because I havent sent in the spreadsheets, just the totals. However, I believe it helps the banks to save face a bit, if they check your figures and see such an obvious error. They can reduce your claim and feel they have done a good job in checking.

 

I also have an unpaid overdraft (loads of bounced cheques etc and 29% interest). I am only claiming six years. The point is that a couple years back, Nat West transferred the debt to a new account which I had to guarantee repaying or be sued, I chose to agree the new terms, therefore any six year or older debt has suddenly been reborn into a two year debt that can now be pursued by the bank, rather than written off due to Statute of Limitations (allthough they could have sued me 2 years ago if I hadnt agreed). I am not sure there is an advantage to me. Except the remaining overdraft is £5000 and I am reclaiming nearly £10,000. So the banks hit will seem easier for them to bear when they come to settle.

[zootscoot]

Regarding the negligence argument it is unlikely to be successful as the standard of care is judged by the conduct of a reasonable bank in the same situation. As the charges issue is standard practice amongst all banks they have not fallen below the standard required by law.

 

An alternative route would be under s.32(1) © Limitation Act 1980 which relates to payments made by mistake. Where a payment is made by mistake the limitation period starts to run from the discovery of the mistake or when the mistake was reasonably discoverable.

 

You could argue that in paying the charges you were paying under the mistaken belief that the charges were lawful, when in fact they were unlawful. It was not until the OFT Report that it was reasonable for you to discover the mistake and thus time starts running from then.

[Shanks]

So are you saying that the LA is referring you ie the claimants mistake in not realising that the charges were unlawful or is it referring to the banks mistake in charging them assuming them to be lawful?

 

Cheers

[zootscoot]

The claimant's mistake in paying them believing them to be lawful.

[deemacperth]

Good point on the mistake part, but with a claim, you can argue on more than 1 point,

 

i.e Limitation act should not apply under section 14A because blah blah blah, if the court feels this is not negligent then the Claimant wishes to pursue this charge under section 32 of the limitations act because blah blah blah, obviously thats just a quick post, I'm sure someone will put something better when the time comes, my 1st claim have just offered to settle fully and thats for charges from beginning of 2000.

 

Disagree on the negligence being dismissed though, as none of the banks are being reasonable, the court does not pick an example of a bank like Lloyds and say they are a reasonable example, they create an example of a bank that would be deemed to be treating their customers in a reasonable manner and then compare your bank to this shining model of the fiscal world. The OFT's ruling helps a lot in showing that charges are unreasonable.

[paulwlton]

April 2006

 

Limitation

 

In respect of negligence and contract claims, it is possible to bring a claim outside the 6 years limitation period if the damage (financial loss) complained of was not discovered by you until after the expiry of the 6 year limitation period. this is known as latent damage . in such circumstances a claimant has 3 years from either the date of knowledge of loss or the date when he ought reasonably to have known of his loss. What constitutes ought reasonably to have known is something that depends on the circumstances of the case and you should take specific advice on that.

 

Although the 3 year rule can extend the 6 year period, there is a longstop of 15 years after which a claimant cannot usually recover irrespective of when the latent damage came to his knowledge.

 

Could this apply to contractual negligence.

[zootscoot]

You may have a problem basing your claim on negligence rather than contract in that your claim is for pure economic loss ie loss which is not dependant upon personal injury or damage to property. Pure economic loss can not be recovered in most instances in tort law unless it is as a result of negligent advice.

[zootscoot]

 

Disagree on the negligence being dismissed though, as none of the banks are being reasonable, the court does not pick an example of a bank like Lloyds and say they are a reasonable example, they create an example of a bank that would be deemed to be treating their customers in a reasonable manner and then compare your bank to this shining model of the fiscal world. The OFT's ruling helps a lot in showing that charges are unreasonable.

 

 

No the standard of care applied in negligence is purely objective. ie the defendant is judged by the standard of a reasonable person/organisation/professional in the same situation (Vaughan v Menlove). Thus a doctor must meet the standard of a reasonable doctor (Willsher v Essex), a butcher must meet the standard of a reasonable butcher a bank must meet the standard of a reasonable bank. To discharge their duty they only have to show that other banks would have done the same in the same situation (Bolam v Friern Hospital). They only have do what is reasonable- they do not have meet the standard of a shining example.

[deemacperth]

You may have a problem basing your claim on negligence rather than contract in that your claim is for pure economic loss ie loss which is not dependant upon personal injury or damage to property. Pure economic loss can not be recovered in most instances in tort law unless it is as a result of negligent advice.

 

 

One of the first cases you come across at University regarding Negligence and Economic Loss.

 

Hedley Byrne & Co Ltd v Heller [1964] AC 464

 

This gives you the Hedley Byrne test:

 

1. the maker of the statement is in a particular "special relationship" with the Claimant - proximity;
   
2. the party seeking the advice or information trusts the other party to exercise such a degree of care and skill as the circumstances require - and relies upon the advice or information given;
   
3. it is reasonable for the party seeking advice of the other to put his trust in that other and for reliance to be placed on the advice offered;
   
4. the party giving the advice or making the statement knows that the other is relying upon the advice given or statement made;
   
5. Claimant acts upon the negligent advice to his detriment;

 

Later case regarding pure economic loss expands on the Hedley Byrne test

 

Henderson v. Merrett Syndicates [1994] 3 All ER 506, HL

 

It was confirmed that a Hedley Byrne duty was not restricted to the provision of advice - but extended to the provision of a service;

 

I have the letters from my bank stating that their charges are lawful and I have to pay them. I acted on that information to my detriment for 5 years. I now find that their charges are unlawful and the bank is saying they thought they were lawful at the time.

 

And the 'Reasonable man' test that you are trying to quote to me is actually called the 'Bolam test' and to quote the honourable McNair J.

 

a standard of practice recognised as proper by a competent reasonable body of opinion.

 

The word you might like to look up in the dictionary is 'competent'

 

Lord Scarman expanded on this test to explain:

 

The use of all these adjectives - responsible, reasonable and respectable- all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis...

 

So, does anyone think that the banks are going to actually provide their figures to a court to be scrutinised to see if they were being reasonable in claiming they weren't being negligent?

[deemacperth]

No the standard of care applied in negligence is purely objective. ie the defendant is judged by the standard of a reasonable person/organisation/professional in the same situation (Vaughan v Menlove). Thus a doctor must meet the standard of a reasonable doctor (Willsher v Essex), a butcher must meet the standard of a reasonable butcher a bank must meet the standard of a reasonable bank. To discharge their duty they only have to show that other banks would have done the same in the same situation (Bolam v Friern Hospital). They only have do what is reasonable- they do not have meet the standard of a shining example.

 

You don't get sarcasm do you.

 

I know the difference between a subjective and objective test, I was being sarcastic by referring to a reasonable standard of bank as a 'shining model of the fiscal world'

[zootscoot]

One of the first cases you come across at University regarding Negligence and Economic Loss.

 

Hedley Byrne & Co Ltd v Heller [1964] AC 464

 

 

I generally start with the distinction in Spartan Steels v Alloys but jumping in with Hedley Byrne is a novel approach (See I do get sarcasm and can even use it occassionally)

 

This gives you the Hedley Byrne test:

 

Which has no relevance to the bank offering you a service

 

 

Later case regarding pure economic loss expands on the Hedley Byrne test

 

Henderson v. Merrett Syndicates [1994] 3 All ER 506, HL

 

 

Which yes is relevant so what is the legal test?

 

 

 

And the 'Reasonable man' test that you are trying to quote to me is actually called the 'Bolam test'

 

Actually they are two different tests.

 

 

The word you might like to look up in the dictionary is 'competent'

 

I think I will decline your offer I'm quite confident I know what it means and yes the banks have competently fooled the public into paying unlawful charges for many many years.

 

Sorry but I still feel the negligence argument will fail. Quite apart from the duty of care and breach issues. S.14A of LA applies where the facts or loss were not known at the time. At the time the charges are taken from a bank account you soon discover the loss and you are aware of the facts leading to the loss, its the law that you are unaware of. However, feel free to pursue it if you wish.