walton v rbos

[victimnomore]

So, then what?

 

Did the bank file a defence?

 

Are they arguing "time barred"?

 

Have you done an AQ yet?

 

Any news from the court itself yet?

 

Next instalment, pleeeeease .. .. ..

[paulwlton]

Heard nothing from the court regarding their application to strike out, AQs have been sent by both partys, i think the defence was very much standard, no mention of the claim being time barred, but in earlier correspondence with the bank it was stated the claim was time barred.

The judge has allocated 2 hours, i assume this is longer than the standard 1 hour due to the time barred aspect, i also think it may be a little more complex than the average claim because the claim surrounds a loan containing unlawfull elements, this was included in the particulars.

[paulwlton]

A hearing date has been set for the 6th Nov regarding the application to strike out the claim.

Cobbetts state in the notice, the claimant's claim does not disclose any legally recognisable claim against the defendant.

The claimant is time-barred from bringing a claim of unauthorised bank charges prior to 14 August 2000 by the provisions of section 5 of the limitation act 1980.

The claimant did not incur any charges on his account after 17 June 1998.

 

I think this will go all the way, the banks have got to make a stand sooner or later, my plan is to hit them with all i've got at the application hearing.

 

Whats the saying about waiting for buses, court dates 6 Nov, 8Nov, 1st Dec.

Will keep updating.

[Guest bong]

Paul, do you need to warn them in advance of the hearing that you are going to be raising s32 in your defence or is it something you just turn up to and spring on them?

[paulwlton]

No there will be no surprises from my side.

The full hearing date is the 1st Dec, the application to strike out is on the 6th

Nov.

I will present my case at the application hearing, this will include arguments for the use of sec 32, amongst other things, so yes, i will be making the defendant and the judge aware of this, then hopefully i'll get the decision to continue with the claim, fingers crossed.

At the allocation questionnaire stage i requested standard disclosure i will be requesting this again at the application hearing.

[Guest bong]

paul I have discovered that you can reply to the defence in this thread http://www.consumeractiongroup.co.uk/forum/general/41910-cant-seem-get-answer.html#post331345. don't know if it helps, as I know I'd rather have it submitted in advance.

[paulwlton]

I will be submitting in advance, at the application hearing, 3 weeks before the full hearing, don't forget their was no reference to the claim being time barred in the defence, the application hearing is to show the judge that the claim has a reasonable chance of succeeding and not just frivolous.

[paulwlton]

I've just received a copy of the schedule of costs which has been filed at court today.

They have provided me with a full breakdown of cobbetts costs for attending the application hearing.

Total costs claimed -£800.70, this includes, £170.00 per hour grade A partner, grade C solicitor £95.00, grade D paralegal £75.00, anticipated councel's fees £450.00 etc.

Makes my hourly rate look extremely sad, just a little fine tuning to do now for Monday.

Will keep updating.

[Guest bong]

Why have they submitted this? Even if they get the claim struck out they don't get their costs paid.

[paulwlton]

Not so sure, as well as striking out the District Judge can make an order for costs, but i think this is in respect of a poorly drafted claim, the case i've made has been properly drafted from the outset.

I know though if a claim is sruck out it may be reinstated, with an application for relief.

[paulwlton]

Just got in from the court hearing, don't want to say too much at the moment their may be spies about, the hearing has been adjourned will give more details tommorow, i think their barrister was on the back foot a little concerning section 32(1)(b) and 32(1)©.

[livelylad]

Just got in from the court hearing, don't want to say too much at the moment their may be spies about, the hearing has been adjourned will give more details tommorow, i think their barrister was on the back foot a little concerning section 32(1)(b) and 32(1)©.

 

I am hoping its good news for you paul.

[mcuth]

Sounds good if you've got them on the back foot Paul Am following with interest () as my claim has s32 implications too. Looking forward to your next update

 

Cheers

 

Michael

[paulwlton]

The hearing went as follows, the banks barrister arrived and we both sat down to discuss the procedure for the hearing.

The judge called us in and the barrister opened by saying "the claim the claimant has issued is regarding allegedly unfair bank charges your probably aware of this through media publicity," the judge looked up and gave a little smirk.

The hearing was basically a game of ping-png between the defence and judge my input was explaining why i was relying on section 32(1)(b) and 32(1)© till a recess was called.

The barrister and i made our way into one of the little rooms just outside the court room, we then had a lengthy discussion regarding the Limitation Act, this led to him leaving the room for ten minutes whilst he contacted the defendant.

 

When we eventually got back in court the defence tried to get the claim struck out stating the documents i was relying on had no statement of truth and couldn't be submitted as evidence, he then stated that my arguments were interesting and very complex issues concerning law, the judge made the barrister aware that i was a litigant in person and wasn't going to strike the claim out.

 

Both parties agreed to adjourn, the judge as instructed the bank to submit a full defence to section 32 giving the claimant 14 days to reply with a statement of truth.

The hearing date for this as been set for December 14th.

 

My only concern at the moment is procedure rules having the claim struck out for not following them correctly, i'm not sure if anyone has got this far with a time barred claim yet, but i would be greatefull for any input from a mod, i know there's a couple more members thinking of issuing claims where time barring is a factor, i would hold tight for the time being, what ever happens with my claim it can be seen has a learning curve.

[Guest bong]

When we eventualy got back in court the defence tried to get the claim struck out stating the documents i was relying on had no statement of truth and couldn't be submitted as evidence

 

Hi Paul, can you explain what it means to have no statement of truth? presumably your claim form did include a s of t, or do you mean they are saying that your claim is not recognised as its outside the LA?

 

My only concern at the moment is procedure rules having the claim struck out for not following them correctly

 

I know you've asked for input from a mod, and hopefully you will get some, but can you explain more about not following the procedure rules. Do you mean not entering your argument for relying on s.32 in your POC?

[livelylad]

The hearing went as follows, the banks barrister arrived and we both sat down to discuss the procedure for the hearing.

The judge called us in and the barrister opened by saying "the claim the claimant has issued is regarding allegedly unfair bank charges your pobably aware of this through media publicity," the judge looked up and gave a little smirk.

The hearing was basically a game of ping-png between the defence and judge my inpu was explaining why i was relying on section 32(1)(b) and 32(1)© till a recess was called.

The barrister and i made our way into one of the little rooms just outside the court room, we then had a lenghty discussion regarding the Limitation Act, this led to him leaving the room for ten minutes whilst he contacted the defendant.

 

When we eventualy got back in court the defence tried to get the claim struck out stating the documents i was relying on had no statement of truth and couldn't be submitted as evidence, he then stated that my arguments were interesting and very complex issues concerning law, the judge made the barrister aware that i was a litigant in person and wasn't going to strike the claim out.

 

Both parties agreed to adjourn, the judge as instructed the bank to submit a full defence to section 32 giving the claimant 14 days to reply with a statement of truth.

The hearing date for this as been set for December 14th.

 

My only concern at the moment is procedure rules having the claim struck out for not following them correctly, i'm not sure if anyone has got this far with a time barred claim yet, but i would be greatefull for any input from a mod, i know theirs a couple more members thinking of issuing claims where time barring is a factor, i would hold tight for the time being, what ever happens with my claim it can be seen has a learning curve.

 

Excellent work Paul i congratulate you. I am following your progres, i shall hold off my claim until you have further information.

[paulwlton]

Yes gong,

 

The document arguing my reliance of section 32(1)(b) and (1c) did not have the statement of truth on, yes the defence made it clear this was a complex case and needed 2 weeks to draft a defence.

I'm confident of the arguments within my claim, the CPR i'm not.

[paulwlton]

Thanks for that Livelylad.

[Guest bong]

sorry if I'm bothering you with my questions but what was the document you're talking of?

[paulwlton]

No problem bong, the document was 4 pages long it related to the background of my claim why i was contesting the defences use of section 5 and why i was relying on section 32.

I've been in contact with a local solicitor this morning i explained all the details and made him aware of my concerns regarding CPR, his response gave me encouragement.

I will post these documents in due course.

[Guest bong]

thanks Paul. was it a court questionnaire or another form? I'm asking because I'm just about to fill in my N1 for my own 13 year claim and I'm puzzling over what documents you would have had to send in and if the problems you're having will also affect me and everyone else with an older claim.

[paulwlton]

No it was a document that i constructed after researching the subject and then applying items from different posts that were relevant to my claim.

I will post everthing in due course, but not at the moment, i need to see a result either way first.

[BaldyBaldwin]

i am in early stages of a claim against natwest going back to 1986 so am watching with interest.

very best of luck

regards BB

[paulwlton]

I will post the defence when i receive it.

Amongst other things, this was submitted Monday.

 

1 I opened a Current account number 10017026 (“the Account”) with the Defendant in April 1995. The Account comprised a bank current account, an unsecured overdraft facility and a debit card. In March 1998 the unsecured overdraft was converted into a fixed term loan and the overdraft facility was withdrawn. Various charges for unpaid transactions and unauthorised overdraft positions were applied to the account totalling £1450 until it was transferred to the Defendant’s Credit Management Services department and defaulted on 16 July 1998. The Defendant sought and obtained a County Court Judgment for the outstanding loan and overdraft balances in October 1998 (case number MA828118). The court set payments to clear the debt at £38.00 per month.

 

2 The Claimant, as a lay person with no legal training or expertise, could not be expected to have the legal knowledge to question the validity and lawfulness of the charges that were applied to the account as shown in the spreadsheet filed with the original claim.

 

3 The Claimant learned that these charges were unlawful during April 2006, after media publicity was given to a legal claim regarding the legality of bank charges. This led to the Claimant making further investigation and seeking advice through the Consumer Action Group website, and other Internet based legal sources.

 

BASIS FOR MY CLAIM

 

4 I do not accept that the claim is time barred by virtue of Section 5 of the Limitation Act (1980) on two grounds.

 

5 Section 5 of the Limitation Act states that “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 expired”. However, rights under the contract do not become time barred if there is an acknowledgement or payment of a debt within the six year period. I contend that my payments of £38 per month starting in December 1998 and my continuing payments of the balance due under the Defendant’s County Court order constitute an acknowledgement of the debt. I contend that if I acknowledged the debt and the Defendant asserted its rights under the agreement, then any assertion of my rights under the agreement would not be time barred until six years after the last acknowledgement.

 

6 This argument may be illustrated by way of example. If, in July 2002, I had acknowledged a debt to the Defendant but it had not sought and obtained a County Court Judgment, the debt to the Defendant would not become time barred until July 2008. It would be possible for the Defendant to make a county Court claim at any point during this six year period. The Defendant’s assertion that this claim is time barred implies that it is possible that one party’s rights under an agreement may be time barred whereas those of the other party are not.

 

 

 

 

7 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 April 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.

 

8The Defendant is a major financial institution within a group of companies that have interests throughout the world. They operate as fiduciary to many thousands of customers in the UK, and employ large staffs which include experienced corporate lawyers and accountants.

 

9 At some point, the Defendant must have made a business decision to apply a charge to a customer account where a breach of contract took place, which was disproportionate to the banks actual losses for that breach. In making this decision, it would reasonably be expected that a company operating in such a position of high trust and fiduciary responsibility would have taken legal counsel when making such a decision.

 

10 The Claimant holds that if the Defendant did take legal counsel on this issue, then it has made a decision in the full knowledge that the said charges were unlawful, and that they have deliberately concealed this fact from their customers, and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

 

11 The Claimant holds that if the Defendant did not take legal counsel on this issue, then they did not operate with the reasonable diligence that would be expected of an experienced fiduciary, and that their failure to seek such legal counsel at the time should have been declared when the bank did eventually seek such legal counsel, and that by not making such a declaration the Defendant has continued to show deliberate concealment and therefore section 32(1) (b) of the Limitation Act 1980 should apply.

 

12 The Claimant holds that if the Defendant did not take legal counsel on this issue, and are genuinely unaware that the said charges are unlawful, and that the court does not uphold the Claimant’s view that section 32(1) (b) of the Limitation Act 1980 should apply, then the Claimant holds that section 32(1) © of the said Act should apply.

13 In April 2006 the Office of Fair Trading published “Calculating Fair Default Charges in Credit Card Contracts” ( A statement of the OFT’s position, page 12). Paragraph 1.1 of the report states that whilst it deals with credit card contracts,

 

“The principles have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and store cards”.

 

 

 

 

 

 

Paragraph 1.3 states:

 

“The statement sets out our view of the law which is in essence that default charge provisions are open to challenge on grounds of unfairness if they have the object of raising more in revenue than is reasonably expected to be necessary to recover certain limited administrative costs incurred by the credit card issuer”.

 

14 Based on discussions with the banks and information provided by them, the OFT determined a simple monetary threshold for intervention by the OFT on default charges under credit card contracts of £12 (OFT sets threshold for intervention, page 12). This threshold is significantly lower than the default charges levied by almost all credit card companies and it is therefore reasonable to conclude that the credit card companies were aware that these charges were intended to generate a profit over and above the cost of remedying contractual breaches by customers. Given that the credit card companies have consistently refused to provide a breakdown of their costs to demonstrate that their default charges are not punitive in nature I believe that they deliberately concealed the nature of these charges from their customers.

 

15 As the OFT has stated that the principles underlying its report on credit card default charges are analogous to standard default charges in bank current accounts, I contend that it is likely that the Defendant and other banks have concealed the punitive nature of current account default charges from me and other bank customers. I therefore further contend that Section 32(1)(b) of the Limitation Act (1980) applies and that my claim is therefore not time barred. In order to determine whether this view is correct it may be necessary for the Court to consider ordering standard disclosure. I am therefore seeking disclosure of this information as set out in paragraph 20 below.

 

16 If the true nature of the default charges applied to the Account by the Defendant were not deliberately concealed from me, I contend that the Defendant mistakenly set these charges with the view of generating a profit and 32(1)© of the Limitation Act should apply. I base this assertion on the principles set out in the OFT report and the Defendant’s failure to defend claims for the refund of default charges applied to bank accounts where the issue of time barring has not arisen, if the defendant did not mistakenly set the charges with the view of generating a profit, then I paid the charges in the mistaken belief that they were lawful, and I further contend section 32(1)© of the limitation act should apply.

 

17 Based on a survey undertaken by the Consumer Action Group, the Defendant has refunded charges totalling approximately £122,384 to 125 customers since January 2006. Over the same period UK banks have, according to the survey, refunded 3,230 customers, a total of £3.6m; all of these claims have been settled before a Court hearing has taken place. Since mid October I personally have received full settlement offers regarding charges, one after issuing a court claim and the second after threatening court action (attached page 15), I contend that this is because the Defendant and other banks are aware that their default charges are likely to be judged unlawful.

 

SUBMISSIONS TO THE COURT

 

18 I contend that this claim is not time barred by virtue of Section 5 of the Limitation Act (1980) for the reasons set out above.

 

19 If the Court does consider that the claim is time barred by virtue of Section 5 of the Limitation Act (1980), I ask the Court to consider the arguments set out above in respect of Sections 32(1) (b) and 32(1) © and allow this matter to proceed to the full hearing in which these arguments may be considered in detail.

 

20 Accordingly I would respectfully ask the court in this case, not withstanding allocation to the small claims track, order standard disclosure, I understand it is in the courts discretion to do so, this to specifically include a breakdown of the defendant’s losses due to contractual breaches compared to the costs incurred by the claimant as a result of the breaches.

[icklepeach]

wow!

 

*applauds*

 

if you listen very carefully you may even hear it, I'm up the road in Doncaster!

 

Which court are you going to?

 

iPeach