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

[paulwlton]

I have been paying a ccj since 1998, at £38.00 a month, the ccj was for a loan that cleared a big overdraft off, banks advice. i have still got the loan agreement stating this. this overdraft was made up of unlawfull charges,so basically i have been paying back a percentge of these charges every month since 98, if the bank says the charges were more than 6 years ago tough luck , i would argue the fact that i'm still paying these charges back in an active debt, so i would say the limitation act could only start from when i made the last payment on my ccj. any advice on this.

[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.

[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.

[paulwlton]

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

[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

[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..

[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.

[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.

[paulwlton]

Exellent post.

 

 

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

[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.

[paulwlton]

Thanks, i will read up on these issues.

[paulwlton]

I bet the shredders are working 24-7.

[paulwlton]

This page was last updated:

09/20/2006 13:26:33Contract: payments made under a mistake of lawUntil recently, payments made under a mistake of law - such as money paid due to a misunderstanding of what the law was - have not been recoverable. Only payments made under a mistake of fact have been recoverable. The distinction has often been very difficult to discern, bringing the law into disrepute. In Kleinwort Benson, the House of Lords has changed the law, to say that now all payments made under a mistake are recoverable. The distinction between mistakes of law and mistakes of fact has been abolished at a stroke.

Kleinwort Benson involved the recovery of sums arising from local authority interest-swap deals. These financial devices had been used by a number of local authorities for many years as a means of avoiding restrictions on capital expenditure. Their validity was challenged by a local authority auditor and the Court of Appeal held in Hazell that the deals were beyond the powers of the local authorities. Kleinwort Benson had a number of claims against local authorities with which it had entered into interest swap deals. But, as some of the payments had been made more than six years earlier, it seemed that its claims were barred under the Limitation Act 1980. However, there was a possible way to succeed in bringing a claim. Under s32(1)© of the Limitation Act 1980, the limitation period for claims where a mistake has occurred runs from the date the mistake is discovered. Kleinwort Benson therefore claimed that it had made payments to the local authority under the mistaken belief that the interest swap deals were lawful. The Court of Appeal decision in Hazell had 'discovered' the mistake and it was, therefore, entitled to make a claim within six years of that decision.

 

I have been making payments, bank charges, in the mistaken belief that they too were lawful.

In April 2006 (OFT REPORT) i discovered the charges were unlawful.

Could this case be used in court to rely on, still the problem is banks say their charges are fair and reasonable, i'm afraid this issue needs contesting in a higher court, but i think this will be challenged soon.

[paulwlton]

Check out LEGAL500COM.

[paulwlton]

This case was decided after the Kleinwort benson descision.

 

 

Judgement - Nurdin v. Peacock