GuidoT Business v Natwest **WON - SETTLED**

[steven4064]

THere's a sticky from Nattie (I think) that give sthe low down on NatWest's data retention. RBOS don't seem to know that NatWest branch people have access to records from before the take over.

[steven4064]

Joyce Tudor is at the South Gyle Street address - I don't know what her e-mail is, bit since hedgey suggest e-mailing her, perhaps she has one

[steven4064]

Hi GT

 

I would be inclined to use the 'new' NatWest PoC suitably modified - ie remove all reference to the UTCCR1999. Change 5(1) to something suitable about business account charges or delete, etc. See what that looks like.

 

When was you account opened? I have T&Cs for 2001 for business banking if they are of help. You will also need to replace the personal T&Cs from the PoC with the business ones which I think you can get from the NatWest website.

[steven4064]

Hi BL_not

 

Whether you can go back beyond 6 years is nothing to do with whether it's a business acount or not. It depends on how you understand the Limitations Act 1980. Section 5 says

5 Time limit for actions founded on simple contract

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued

- hence the 6 years. However, s32 says

32 Postponement of limitation period in case of fraud, concealment or mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant;

or

© the action is for relief from the consequences of a mistake;

 

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.

You can argue that you paid the charges by mistake, honestly beleiving that the bank would behave lawfully. It was only recently that you discovered that the charges were in fact unlawful. The 6 years thus begins on the day yousaw the light.

 

NatWest will vigorously defend this (up until actually getting to court that is) and you will have to make a good case in your PoC (but there's loads of stuff on CAG fpr that). Also you still have to get the earlier statments out of NatWest. That isn't usually easy either. But go for it.

[steven4064]

THe problem is that the Data Protection Act doesn't apply to company information so you can't use a SAR to get the data.

 

I am not sure, but it may be worth exploring if the bank has a duty to supply information arising from its fiduciary relationsip with you (that is, its position of trust). I haven't got time now, but you might search on the internet and see if you can find anything.

[steven4064]

I am not sure, but it may be worth exploring if the bank has a duty to supply information arising from its fiduciary relationsip with you (that is, its position of trust).

I've since had a look and I think there may be something. The first thing to note is that there is case law that the bank acts as your fiduciary (they are in a position of trust) with regard to the paying of cheques. There are several cases before DDs came into being. SOs and DDs are the modern equivalent of cheques so it must follow that the fiduciary relationship extends to those modes of payment too.

 

I found this in The Withers Lecture 2003, "The Trustees' duty to provide information to Beneficiaries" by Mr Justice Lightman

As Millett LJ said in Armitage v. Nurse [1998] Ch 241 at 255: "If the beneficiaries have no rights enforceable against the trustees, there are no trusts": i.e. no trusts other than a resulting trust for the settlor. He went on to say that "every beneficiary is entitled to see the trust accounts". This is spelt out by Lindley LJ in Low v. Bouverie [1891] 3 Ch 82 at 99 as an obligation "to give all his cestui que trust" on demand information with respect to the mode in which the trust fund has been dealt with and where it is. The gloss may be added that the beneficiary's right is confined to information which concerns him. If the beneficiary's interest is in capital alone, he may have no interest in the details of the distribution of income. Further the term "beneficiary" may not include the objects of a fiduciary discretionary power. For the view has been expressed that the settlor may confer on or withhold from such objects any accounting or enforcement right: see Underhill & Hayton Law of Trusts 16 ed. 672. Leaving aside for the moment these two matters of detail, it must be plain that the right of enforcement is only rendered effective and meaningful if the beneficiaries first of all know that they are beneficiaries and secondly possess or have access to the required information to render the trustees accountable for their actions. A trust must be both visible to beneficiaries and enforceable by them.

There might be something there. What does anyone else think?

 

GuidoT's suggestion is a good starting point but the bank is within their rights to ignore it for an account for a limited company as the DPA does not apply. And I guess that aphrodite has already tried that - hence the problem.

 

I would try this: Write to the bank and point out that they act as your fiduciary regarding your account and that, under common law, you therefore have the right to all accounting information relating to your dealings with them and they have the duty to supply it.

 

To my knowledge, no one has tried this before and I only just thought of it, but it is worth a try (and even if it is total rubbish it might work - after all "if you can't blind them with science, baffle them with bulls**t"). In the meantime, I will try and get one of the legally-minded mods to comment.

 

Incidentally, aphrodite, I think you ought to start yor own thread otherwise we are going to get muddled. Same applies to you banklover_not.

[steven4064]

would love to click on everyones scales but don't know how??

To "click the scales" click on the little silver icon at the bottom left of the post that looks like a small tree between the green/grey dot and the warning triangle.

[steven4064]

As I said here a SAR is inappropriate, but worth a try use this.

Or this

[steven4064]

Notice that Acknowledgement of Service has been filed received today and that they intend to defence in full.

 

As normal Cobetts instructed.

Everything going according to plan then

[steven4064]

But will fast track itself be enough for a test case - I thought it had to go at least to the Mercantile Court for that.

[steven4064]

SMy case is in the county court and therefore not binding on any other court.

 

I think as you know, the track itself does not determine whether it will set a precedent but the hierarchy of court does

That was my point

[steven4064]

Way to go Guido - at last. CONGRATULATIONS