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

[deemacperth]

I could continue, but I'm getting drawn into an argument here and my theory was only a supposition. Feel free to knock it if you will, but I feel you are only trying to point score now.

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)

I can see absolutely no reason why you would quote Spartan Steels, it has no impact on my case what so ever, I have a direct relationship with my Bank. Spartan Steels is about economic loss in relation to remoteness of damage.

Actually they are two different tests.

I know full well the difference between the 'reasonable man test' and the 'bolam test.' You were trying to apply the 'reasonable man test' when what you should have been quoting was the 'bolam test'. We are discussing professional standards here, not "the man on the Clapham omnibus"

http://iq.lycos.co.uk/qa/show/1006/What+is+the+Bolam+test%3F/

Which has no relevance to the bank offering you a service

You so graciously left out my quote from 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;"

This quote then goes on to answer your question about what test to apply, in-case you need help and don't get it the 2nd time of reading, it's the Hedley Byrne test.

Which yes is relevant so what is the legal test?

The whole point of me listing those claims is that to base a claim on pure economic loss, you have to compare your case to the Hedley Byrne test. If it does not pass, then you have no basis.

Sorry but I still feel the negligence argument will fail.

To continue with Section 14A of the Limitation act, this was clarified in Haward & Others v Fawcetts & Others UKHL 9: 5 June 2006

This case examined what exactly the claimant has to know before the alternative three-year limitation period for negligence claims under s.14(A) of the Limitation Act 1980 starts running. The House of Lords held that the crucial date was not when the claimant knew he had a claim in damages but when he first knew enough to investigate the possibility that the advice he received had been defective.

What is the measure of how much you need to know?

 

In Halford v Brookes [1991] 1 WLR 428, 443 Lord Donaldson of Lymington MR says:

"It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice"

If you go back to my original point, I knew nothing until the OFT report came out. That is when I started investigating this issue and if you look back at my original post, I was acting on Mr Bank Manager telling me that they are sorry, they thought it was the right advice to give me at the time. I have never once questioned a bank charge or credit card charge until the OFT report.

You are quite welcome not to use my argument, I feel your mistake claim has some body and I will certainly consider basing an argument on that as well if the need arises.

The important thing to realise about issuing a court claim is that you can base your argument on more than 1 thread. The more arguments you give, the more the defendant has to disprove. My lecturer used to use the analogy of ‘it's a cricket game and you keep bowling the arguments until you stump them.’

I've explained my point, if you don't feel it's valid, fine, you've expressed that, but I'd rather not discuss it further with you unless you actually give me valid arguments that I would come up against in court. Cheers.

[zootscoot]

Sorry if you have misunderstood my comments I'm not trying to point score, just help you put an intelligible workable argument together and save you from embarrassment in court. After all we are all on the same side. I myself am not claiming back further than six years I was just intrigued with the legalities of it. However,I respect your request not to discuss this further with you.

 

Best of luck with your claim

 

Zoot

[deemacperth]

Thanks and as I said before, I feel your mistake claim has substance and I will be looking at in depth if needed. I will need to distinguish the Limitation Act for my Lloyds claim, but I'm only at the court stage for the SAR.

 

Thanks and good luck.

[Movingon]

Guys... why don't we stick with the basics?

 

To use the Limitation Act to your advantage you don't NEED to claim negligence or whatever; just concealment. The bank have been concealing the fact that their charges are unlawful - it is simply not reasonable to suspect that THEY didn't know EITHER. They have whole teams of legal eagles writing their terms and conditions, who would have immediately identified the sticky wicket of the UTCCR 1999; so THEY KNEW, and they concealed it from us by insisting that their terms and conditions were reasonable in their entirety. That concealment is enough to start the clock ticking from the moment (to use an argument from above) you had reasonable suspicion that there was grounds for an action. That moment would be either the day you discovered the OFT statement, the UTCCR 1999, or this site, whichever is earlier.

[thewifeandI]

What was in place before the 1999 UTCCR and what bearing would that have on charges applied before it came into force?

[deemacperth]

You had UCTA 1974 then the 1st EC directive came into force and was UTCCR (1994) which was superseded in 1999.

 

Agreed about keeping it simple Stoney, but it's best to moot these points just now so that people are thinking about different angles.

[deemacperth]

Doesn't have that much bearing on the charges as common law is what dictates what is a penaly charge. See here:

 

Is it a Penalty? - Alway Associates

[Movingon]

(a) It will be held to be a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

 

So - if they charge £35 and actually lose £10, it's a penalty.

 

 

(b) There is a presumption (but no more) that it is a penalty when, 'A single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.'

 

So, we can presume, but ONLY presume, that if the bank charges the same for a default of 1p as a default for £100, that it is a penalty.

 

 

 

© It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimate damage was the true bargain between the parties.

 

In other words, if a genuine pre-estimate is hard to calculate, then it most certainly probably IS a penalty because these are the times when it's most difficult to prove...

[paulwlton]

limitation act 32(1)(b)

 

Explained in simple terms.

 

As a matter of public policy, statute provides certain limitations of time within which claims for damages must be brought. The first statute was the Limitations Act of 1623. For almost four centuries therefore, it has been the policy of the legislature that legal proceedings should be brought, if at all, within a prescribed period from the date at which a cause of action first arose.

 

The statutes of limitation have been described as statutes of peace. The underlying policy is that a defendant should be spared the injustice of having to face a stale claim. It has been said that long dormant claims often have more of cruelty than of justice in them. With the passage of time cases become more difficult to try and the evidence which might have enabled the defendant to rebut the claim may no longer be available. Moreover, it is in the public interest that a person with a good cause of action should pursue it within a reasonable period.

 

All of this assumes that the plaintiff knows, or ought to know, that he has a cause of action. A plaintiff ought not to find that his action is statute barred before he has had a reasonable opportunity to bring it. To this end, the Limitation Acts contain provisions which extend, suspend or postpone the commencement of the limitation period in prescribed circumstances.

 

The current legislation is contained in the Limitation Act 1980. Section 32(1)(b) postpones the commencement of the limitation period where "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". In such a case, the period of limitation does not begin to run until the plaintiff discovers the concealment, or could with reasonable diligence discover it. The rationale for this provision is plain, if the defendant is not sued earlier, he has only himself to blame.

 

So we have 6 years from the date we found out they concealed. This could be the date of the oft report.

 

In a careful analysis of the statute and its underlying purpose, Lord Millett concluded that it is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it. In his opinion, Brocklesby was wrongly decided. In Section 32 of the Limitation Act deprived the defendant of a limitation defence in two situations: (1) where he takes active steps to conceal his own breach of duty after he has become aware of it, and (2) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. In consequence, Robinson was entitled to rely upon its limitation defence.

 

 

 

Does any of this sound familiar.

[Movingon]

Yes it does. I wonder what Lord Millet would make of our use of s.32(1)(b). What we're saying is that:

 

(a) The banks make charges which are unlawful penalties (as defined in UTCCR 1999). They do not represent a true pre-estimate of loss to the Bank, they do not vary with the amount of damage caused to the bank, and the losses to the bank are very difficult to calculate.

 

(b) It is extremely unlikely that they are UNAWARE that these charges are penalties, and yet they made no effort to draw my attention to this, nor indeed to modify their behaviour. They therefore took active steps to conceal it, by constantly stating that their terms and conditions were fair and that their charges were fair, transparent and reasonable.

 

© I, the Consumer, only became aware that they were unlawful in April 2006 when I became aware of the OFT's statement and it's implications, and therefore began to examine the Laws around the subject.

 

(d) These facts combined mean that I am Limited from making a claim, six years from the 5th April 2006, (i.e. after 4th April 2012) when I became aware (or could with reasonable diligence have become aware) that the Banks had concealed the unlawful nature of these charges.

[paulwlton]

Exellent post.

 

 

Could Lord Millets analysis be brought up in court for individual claims especialy as our arguments mirror is conclusion.

[deemacperth]

Whoever gave me reputation for that link, it didn't work, I'm still stuck on 82 points. 3 reputation marks in 3 days and still sat on 82 points. My bloody counters broken.

 

Cheers anyway, it's the thought that counted.

[deemacperth]

Paul,

 

You can submit anything you want into court if you think it will support your case.

[Movingon]

Whoever gave me reputation for that link, it didn't work, I'm still stuck on 82 points. 3 reputation marks in 3 days and still sat on 82 points. My bloody counters broken.

 

Cheers anyway, it's the thought that counted.

 

They were probably people of low reputation themselves... when you begin, you begin with a reputation-giving power of ZERO.

[thewifeandI]

That's why I've stuck on 83 for weeks now, despite 6-8 reps.

[deemacperth]

Go on Tom, give me some Rep.

[Movingon]

LOL. You'll note that as a Site Helper I have rep disabled... which means I can't give or receive. Mine's at 413 points BTW.

[paulwlton]

Sorry, i should have said do you think it would help a claim bringing past cases like this up in court, or would the judge ignore it. I am going to test it out in court shortly, the more i can bring up the better. I have very good arguments already, and i'm waiting for a setlement on a different claim before i start court action on the limitation claim.

[Movingon]

I think that you should simply state in court that you believe this to be the case under common law. If you are pressed on the issue, have the precedents at hand to back you up. The Judge will likely know them already; especially if they're used in Law school!

[deemacperth]

Paul,

 

English and Welsh Common Law is based on precedent.

 

What that means is that what the higher courts say, the smaller courts have to follow.

 

caselaw.html

 

That link sort of explains it in School level terms, but is only based on the criminal system. There is some good reading there if you are going to be representing yourself.

 

With the civil courts, up to Court of Appeal level, each judge should follow the decisions of all the higher courts above it but need not follow the views of other judges in the same court or a lower court.

 

The Court of Appeal is normally bound by its own previous decisions in civil cases as well as those of the House of Lords. The Court of Appeal can depart from its own decisions in civil cases in the circumstances laid down in a case called Young v Bristol Aeroplane Co.[1944] 1 KB 718. This says it can depart from its earlier own decision if

(1) made in error

(2) if there are two conflicting earlier decisions, the Court can choose one and override the other

(3) where a decision conflicts with a later decision of the House of Lords.

 

The House of Lords is not bound by other courts (except the European Court of Justice). The House of Lords decided by a Practice Direction in 1966 that it was not to be bound by its own previous decisions, though it continues to recognise the value of certainty and so will depart from earlier decisions only in rare cases.

 

The Court of Justice can overrule all other courts on matters of Community law.

 

So the best thing to do and what all lawyers do is simply pick what cases matter to yours and use the judgements in that as arguments for your case. The other side tries to convinvce the judge that your case has nothing in common with that case at so should not be bound by the decision. (Called distinguishing a case)

[paulwlton]

Thanks, i will read up on these issues.

[Glenn UK]

Something occured to me last night, in bed, yeah I know sad whatsit.

 

If a bank relys in part on the limitation act to prevent claims, isnt this an effective admission that their charges are unfair?

 

In essence if the charges are lawful, fair and a true reflection of their costs then they have no liability to reimburse anyone for them, however long ago we claim back.

 

Since the intent of the Limitation Act is to prevent a person making a claim for some loss or damage after a long period of time, bearing in mind the difficulty of defending stale claims, and not to protect someone who is doing something lawful.

 

Im not sure if this is a relevant argument to include in any submission when putting a case before a judge but it does seem interesting to me.

 

Sorry if this is stupid and been done before, but it was hot last night and I couldnt sleep.

 

Glenn

[maybelline]

seems logical to me, you go to the bank and say 'i want my charges back and they say ok but not more than 6 years because the charges before that were okay'?? so i say 'why is that then, they all look the same to me, automatic charges way over the cost of bouncing my dd' and they say..... the law protects us from giving you the rest - DOES IT?

[deemacperth]

The Limitation Act is there to prevent people making frivolous claims, unfortunatly if you can't argue round it, the court won't consider the claim.

[maybelline]

Hi there, I'm not sure I understand, does something become frivolous because it has not been sorted out within a six year period?