walton v rbos

[JonCris]

Any delay in bringing proceedings can be placed squarely at the door of the banks & their continued refusal to accept liability or promptly offer compensation.

 

I think this must be drawn to the attention of the court in order to help counter their Laches argument

 

What I'm saying they can't cause the delay then rely on the latches argument. For a court to uphold such an argument is peverse

[Glenn UK]

For laches to be upheld wouldnt it also be the case that the bank would have had to have suffered ie be in a worse postion due to the delay ?

 

If wikidpedia is right then they would have to show this and it seems to me that they are in fact in a better postion due to the unlawful removal of the moeny and having the use of that money for the period in question.

 

Hope thats right

Glenn

[paulwlton]

I maybe straw cluching here but i've been thinking about another aproach this being having the court order set-aside.

 

The judgement in 1998 includes unlawful charges, at the time of judgement i wasn't to know that the charges were unlawful, i now know different.

 

A basis for a set-aside would be i agreed the amount was correct at the time of judgement but now dispute the amount.

 

I would be totaly prepared for a Limitation fight this time round because i know their defence.

 

Has anyone had a jdgement set-aside on this basis? i seem to recall someone trying.

 

I may be barking up the wrong tree here so all comments welcome.

 

Paul

[sarahpp]

You could see if there is anything which may help you on this thread Paul

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/37732-ccj-defaults.html

[JonCris]

bump

[Glenn UK]

Paul

 

have you read both Klienwort Benson and DMG Vs inland revenue.

 

It seems to your argument is dealt with in there, but since it doesn't apply to me directly i haven't studied them in that light.

 

They do discuss issues which arise because of a mistake of law.

 

Your claim would not be about your mistake, but about the courts mistake in that the law as they interpreted at the time was wrong.

 

It was wrong then and wrong now.

 

Hope that helps.

 

Seems to me you may have a case for getting the judgement overturned.

 

Glenn

[paulwlton]

Paul

 

have you read both Kleinwort Benson and DMG Vs inlad revenue.

 

It seems to your argument is dealt with in there, but since it doesnt apply to me directly i havent studied them in that light.

 

They do disucss issues which arise because of a mistake of law.

 

YOur claim would not be about your mistake, but about the courts mistake in that the law as they interpreted at the time was wrong.

 

It was wrong then and wrong now.

 

HOpe that helps.

 

 

Seems to me you may have a case for getting the judgement overturend.

 

GLenn

 

Glenn

I have done some reading i will await the OFTs findings then will seek a set-aside.

[mcuth]

They do disucss issues which arise because of a mistake of law.

 

YOur claim would not be about your mistake, but about the courts mistake in that the law as they interpreted at the time was wrong.

 

Now, see, I have issues with the "mistake of law" claim. A claim for relief from the Limitations Act of "mistake of law" can only be brought if the law changes after the limitation period expires.

 

As we know, we have precedent-setting cases (Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004]) to show that penalty charges due to breach of contract are unlawful if they're more than the breach of contract actually costs. So, the law hasn't actually changed in that respect.

 

Even if we had a precedent-setting case stating that bank charges themselves are penalties and unlawful, it wouldn't actually change the law - it would just provide a precedent for judges to rule on.

 

I still think the way of approaching this is "mistake of fact" - i.e. I paid these charges under the belief that the bank, as my fiduciary/a trusted & respected institution/etc.., was acting in a lawful manner. The fact that these charges could be unlawful was only brought to my attention from the OFT report & increased media coverage during 2006.

 

Cheers

 

Michael

[paulwlton]

Mistake of fact is what i'm relying on, the mistake of law doesn't come into my argument.

[Glenn UK]

IT doesnt matter whether its a mistake of fact or of law

This view is supported by Lord Goff in his speech delivered in Kleinwort Vs Benson, 1998 “English Law should now recognise that there is a general right to recover money paid under a mistake, whether of fact or law.”

I think you will find this is repeated in DMG Vs Inland Revenue.

From our perspective this makes our lives a lot easier.

I am not certain whether we made a mistake in law or in fact.

The law hasnt changed wrt penalty charges. So there is no change in law necessary, the only mistake on my part was paying charges which were unlawful.

THe only issue is whether anyone could have known the charges were unlawful since there hasnt been a judicial decision. However, on this front I dont think this relies on a mistake of law either, since if the charges had been compared with the costs of our breeches anyone who undersoot dht eprinciples behind the various bits of case law wouldnt have made the same mistake.

Glenn

[paulwlton]

The judge in kleintwort benson didn't change the law he used the declatory theory, stating, that the law is what should have been.

 

I can't see how we can argue mistake of law has a penalty in contract is contrary to common law, this is a settled view of the law.

[Guest bong]

IT doesnt matter whether its a mistake of fact or of law

 

This view is supported by Lord Goff in his speech delivered in Kleinwort Vs Benson, 1998 “English Law should now recognise that there is a general right to recover money paid under a mistake, whether of fact or law.”

 

I think you will find this is repeated in DMG Vs Inland Revenue.

 

From our perspective this makes our lives a lot easier.

 

I am not certain whether we made a mistake in law or in fact.

 

The law hasnt changed wrt penalty charges. So there is no change in law necessary, the only mistake on my part was paying charges which were unlawful.

 

THe only issue is whether anyone could have known the charges were unlawful since there hasnt been a judicial decision. However, on this front I dont think this relies on a mistake of law either, since if the charges had been compared with the costs of our breeches anyone who undersoot dht eprinciples behind the various bits of case law wouldnt have made the same mistake.

 

Glenn

 

Glenn I think the fact that Lord Goff said that mistake could relate to fact or law doesn't mean we can take the line that we're covered because the law allows both. we have to decide whether we made a mistake in law or in fact and as I have said before, it couldn't have been a mistake in law because the law was clear and hasn't changed. The fact we were mistaken about (as far as I am concerned) was that we didn't know the charges were penalties when we paid them because the bank (mis)represented the charges to us as being the cost of providing the service or dealing with the breach.

[JonCris]

Hi bong

 

I think many are missing the point that when it is stated that the law hasn't changed so we can't use both arguments we are forgetting that most here are litigants in person & cannot & would not be expected to know that. We are entitled as ordinary consumers to assume that the banks where acting lawfuly

[Guest bong]

JonCris am I right in thinking here that you are drawing a connection between "assuming the banks were acting lawfully" and "making a mistake in law" ?

 

Otherwise I can't understand what you have said here. My understanding of claiming you made a mistake in law is not to do with whether the banks were operating lawfully, but to do with what the law was at the time of the event and whether any subsequent change in the law or new case law (which would have retrospective effect) means that something which was previously lawful is not now lawful, so opening up the possibility of a claim.

 

Sorry for the long sentence!

 

If that all makes sense then in that scenario there is a mistake in law, but not in ours. We have not mistaken the law.

[Glenn UK]

Bong

 

The way i see it is this, you argue that you made a mistake in law, and if it isnt a mistake in law its a mistake in fact.

 

This is the approach adopted in most of the defences presented to us and seems to be a legitimate strategy to make sure if you make a wrong choice that you are not stopped from using the right alternative.

 

I would be comfortable talking in this forum and saying im pretty certain it isnt a mistake of law.

 

However, consider this, the charges are not unlawful until a court say they are. You cannot know that the charges are unlawful until such time as some form of judicial or legal interpretation is made. The Defendants will certainly be arguing their lawful.

 

Even a lawyer looking at the evidence without having the banks costs cannot be certain whether the charges are lawful or not until a court decides.

 

Now decide whether you made a mistake in law and/or a mistake of fact?

 

It may be fanciful and theoretical but should figure in yourt thought process imho.

 

Glenn

[Guest bong]

my last post before I'm definitely off to bed!

 

The Defendants will certainly be arguing their lawful.

are you sure about this? they've avoided the topic so far.

 

Trouble with claiming that it was a mistake in law and a mistake in fact as alternatives is that it doesn't make your argument sound very convincing. Its looks a bit like you don't believe one of them or that you might even be fabricating the basis of your claim. I'm reminded of something the defence wrote about Paul's claim in their skeleton defence argument, but can't remember what right now. Something about changing the nature of his claim.

 

Possibly, thats the way I see it.

[Glenn UK]

Bong

 

Its likely that the arguments of the limitation act or laches would be argued at an allocation or prelim hearing before they even get to the final hearing.

 

This has happened several times so far i believe. In this forum they can argue about the charges, without producing any costs to their hearts content is about limitation not the charges, or at least thats what they have said so far i believe.

 

Re arguing both ways makes your argument sound weak, i don't see it that way, it means that you have your cake and eat it.

 

The strength of the argument is that you made the mistake and how you argue that.

 

Glenn

 

PS what do you mean off to bed? Ive just got back from seeing my son born!!

[mcuth]

My understanding of claiming you made a mistake in law is not to do with whether the banks were operating lawfully, but to do with what the law was at the time of the event and whether any subsequent change in the law or new case law (which would have retrospective effect) means that something which was previously lawful is not now lawful, so opening up the possibility of a claim.

 

I agree with you completely Bong, with this & how you interpret Goff's statement. Goff was simply stating that there's a right to relief from the Limitations Act if a mistake is made in either law or fact - not directing us to choose both.

 

As I said earlier, the "mistake in law" argument can only be used when the law's been changed. There has been no change in the law, the law is the same as it always was - penalties that exceed actual costs are unlawful. Granted we don't have a ruling to say that bank charges fall into this category for absolute, but if we all remember our PoC, that's exactly the law that we're bringing claims under. Even if we get a bank in a precedent-setting court that says "yes these charges are penalties", then the law still hasn't changed. All that does is simply provide a reference for other judges.

 

Assuming that the banks were acting lawfully is a mistake of fact, not a mistake of law - to be honest, I can't see how we could even begin to argue a mistake of law.

 

Cheers

 

Michael

 

(PS - congrats Glenn )

[Glenn UK]

Hold on a bit, it seems like you guys think I'm saying that unlawful charges is a mistake of law?

 

That is not what i am saying, the comments in post 181 were related specifically to post by Paul and related to the previous courts ruling which was a mistake in law i believe.

 

The subsequent posts I was not saying that it was a mistake in law, simply that as a litigant in person, i don't see it matters what you call it, if you decide to argue that it could be either then fine and it resolves the problem in case your mistaken about your interpretation.

 

incidentally abbey are arguing its a mistake of law in their revised defence which they are submitting at the AQ hearing Weds.

 

Something else which is important is that it doesn't have to be a change in law, it can simply be a judicial decision which causes a change in the law or even an illumination of the law which wasn't previously understood. I don't think there has been one of those in relation to bank charges but there could be.

 

JMHO

 

 

Glenn

[Guest bong]

Ive just got back from seeing my son born!!

 

congratulations Glenn!!!

[mcuth]

Hold on a bit, it seems like you guys think im saying that unlawful charges is a mistake of law?

 

No, I've interpreted what you've posted as "we can claim relief from the Limitations Act because of a mistake of law". What I'm saying is that we can't, because there hasn't been a mistake of law.

 

The subseqeunt posts I was not saying that it was a mistake in law, simply that as a litigant in person, i dont see it matters what you call it, if you decide to argue that it could be either then fine and it resolves the prolbme in case your mistaken about your interpretation.

 

But that's the point - it does matter what you call it, because the meanings (of law & fact) are fundamentally different, even if you're a LiP.

 

incidentally abbey are arguing its a mistake of law in their revised defence which they are submitting at the AQ hearing Weds.

 

That'll be interesting to see then - how've they worded that??

 

Something else which is important is that it doesnt have to be a change in law, it can simply be a judicial decision which causes a change in the law or even an illumination of the law which wasnt previoulsey understood. I dont think there has been one of those in relation to bank charges but there could be.

 

That's fair enough - but I don't think there's anything to change in law - we're already basing claims on sound lawful judgements. I think the only one of those that might apply would be the "illumination" one if we got a ruling from a precedent-setting court, but even so, I'd say it would be a bit tenuous. Certainly, I think it's reasonable to argue payments were made under a mistake of fact whilst under the impression the banks act lawfully (and indeed that's what I'll be arguing myself), I just can't see the "mistake of law" argument working at all.

 

(Also JMHO )

 

Cheers

 

Michael

[Glenn UK]

No, I've interpreted what you've posted as "we can claim relief from the Limitations Act because of a mistake of law". What I'm saying is that we can't, because there hasn't been a mistake of law.

 

Why interpret whn i didnt say it was a mistake in law? What I said is it doesnt matter whether it is a mistake of law or fact, you can claim whichever.

 

But that's the point - it does matter what you call it, because the meanings (of law & fact) are fundamentally different, even if you're a LiP.

 

It only matters if you want to know whether it is in fact a mistake in fact or law.

 

We dont care, we made a mistake its up to the courts to determine what it is. As a LIP i doubt the court would be too worried if you simply said i made a mistake and explained how you came to that concusion.

 

The point is a lot of people are worrying about whether its a mistake of law or fact and its immaterial unless you intend to present you mistake in terms of the law.

 

What im saying, and i think Jon is, that you dont have to be that precise as a LIP.

 

That'll be interesting to see then - how've they worded that??

 

That's fair enough - but I don't think there's anything to change in law - we're already basing claims on sound lawful judgements. I think the only one of those that might apply would be the "illumination" one if we got a ruling from a precedent-setting court, but even so, I'd say it would be a bit tenuous. Certainly, I think it's reasonable to argue payments were made under a mistake of fact whilst under the impression the banks act lawfully (and indeed that's what I'll be arguing myself), I just can't see the "mistake of law" argument working at all.

 

(Also JMHO )

 

Cheers

 

Michael

 

On the last bit you are making the mistake of presuming the charges are unlawful when no one has a judgement to say they are. Whilst you can argue the facts, the bank wold argue a different set and whoever the court believed woul get the judgement, its possible the charges would then be lawful. You would have made no mistake in fact or law.

 

If a judgement ws made that the charges were unlawful then you would claim under a istake of law i believe.

 

And Ill say it again i never said it was a mistake in law.

 

Jeeze how did one little statement to highlight the fact you dont need to worry become such a saga, esepcailly when i didnt say it was a mistake of law?

 

ROFL

 

Glenn

[Guest bong]

BUT Glenn, looking at it from another angle, the judge isn't going to make your case for you. You can't just say "it was a mistake of some sort - where does that fit into what's allowable please your honour?" Thats how I understand it to be anyway. It was zootscoot who posted this in my thread and I think its relevant here too

 

No its your job to argue your case and respond to their defence. The judge will listen to your arguments based on the law you present to him/her. The judge is not going to research your case for you.

 

 

And just as an aside, have you noticed one of the first lines of our template prelim letter says

 

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

[Glenn UK]

LOL

 

I know i have to make my case, but my case doesnt hang on whether i correctly define whether i made a mistake in fact or law. neither come to that does yours or anyone esles from the site. If you argue that you made a mistake and you are correct, when the facts are considered, if you argue that if it wasnt one it was the other, then thats sufficient.

 

The approach seems good enough for a number of other issues in our claims and for the defendants, I dont see it being an issue in this respect.

 

All i said was, it doesnt matter if it was in fact and mistake of law or a mistake of fact since either way you can use the mistake argument, prior to the recent histroy of claims there was a dispute over whether mistakes of law were allowable. Since Klienwort there is no doubt and thats all i was trying to point out. THIS HAS TO BE TAKEN IN THE CONTEXT OF THE ORIGINAL QUESTION which was not about an unlawful charges claim, it was about a judgement wrongly made (IMHO), which is entirely different matter.

 

And regarding what the OFT said, we should rember the rest of the statement which said that only a court can decide whetther the charges are in fact lawful.

 

GLenn

[paulwlton]

I think i understand what your saying Glenn, the more arguments the better, in the Deutsche morgan Grenfell case it was argued that an unlawfull request should invoke s32(1)©.

The law is still developing and if a claim was to go beyond the small claims then it could get interesting.