Office Of Fair Trading Test Case

[photoman]

Question - section 32 of SOL?? - anyone

 

Section 32 of SOL refers to;

 

Section 32 of the Statute of Limitations act (otherwise known as the limitations act 1980. see here:

Results within legislation - Statute Law Database

 

(go to section 32)

 

This is a statutory instrument (law) constructed to protect people/ companies from having old/stale claims from being brought against them.

Under this, the usual limitation period is 6 years, which means that if you haven't brought an action for recovery of a debt against someone within 6 years, then you lose your right to.

In effect, it means that we should not ordinarily be allowed to claim back any charges that were taken from us more than 6 years ago, regardless of whether or not we can prove they were taken...... HOWEVER....

 

Under section 32 of the act, the 6 year period of limitation is raised, if it can be proven that there are reasonable grounds to believe that the money was taken whilst;

Either the defendant (the bank) were concealing the true nature of the charges (sec 32(1)b).

Or that the charges were conceded by ourselves whilst acting under a mistake (which in our own circumstances was bourne of the defendants misrepresentations) that the whole sums were properly due. sec 32 (1)c.

 

Thus by invoking section 32 of the said act, we can contend and claim that ALL charges no matter how old can be reclaimed.

 

Anyway, this is not really the proper thread to discuss this any further, so please lets not clutter this thread, and anyone wishing to do so should do a forum search for threads that deal with this.

[un1boy]

Actually, to be really pendantic, the test case is in relation to whether, in principal, a representative sample of the standard terms of business of the major banks can be said to be fair in relation to the UTCCR and Unfair Contract terms Act, and also (as a counter claim) whether the terms are charges in receipt of a service, rather than charges on breach of contract.

 

it may also be amended at a latter date by the OFT to include a claim against the banks founded upon the basis of the enterprise act, that the banks are operating as an unlawful monopoly insofar as these charges are unrepresentative of the true market costs of the services enjoyed.

 

That last paragraph is a real sting in the tail... only two organisations in the UK could bring it, and it's practically unarguable by the banks, and would leave them open to fines in the billions of pound region.

 

Surely the OFT can just order the banks to prove how much it costs them without having deal with this expensive and time consuming litigation?

 

Also, I have made a "bank account" program which applies charges automatically - and I can set the charges to wahtever I want.

 

I wonder if this would help?

[un1boy]

I agree and have posted on CAG and MSE suggesting they use the £100K fund and do something about this.

 

And if that's not enough, I'm sure if all 155k members contributed a pound each that might help?

[ajamsandwich]

And if that's not enough, I'm sure if all 155k members contributed a pound each that might help?

 

Yup I'd do this for the sheer principle, force the issue!

[toffo9]

ill donate £10 ... anything to beat these barstewards

[Lunatic Flea]

My case is in front of the Judge today and in his posession is my rerquest for Judgement. I have just spoken to the court manager who said that no banks have contacted them regarding the test case so they are continuing as normal and i should have a decesion today

 

I will also donate £10 to this site

[Destinyofsouls]

My case is in front of the Judge today and in his posession is my rerquest for Judgement. I have just spoken to the court manager who said that no banks have contacted them regarding the test case so they are continuing as normal and i should have a decesion today

 

I will also donate £10 to this site

 

I don't think it will happen as quick as that. I would expect something to happen mid to end of week.

[Lunatic Flea]

I don't think it will happen as quick as that. I would expect something to happen mid to end of week.

Hi

Do you mean it will be middle of the week before a get a judgement or before the Banks contact the courts following on from the announcement last Friday?

[shane5408]

It's taken to long for me to find this thread! I'm sure these questions have already been answered but can someone please clarify for me:

 

The banks and Financial ombudsman service, as a result of this action now no longer have to respond to any of our claims until the high court has reached a decision? Is this correct and if so does it only apply to bank accounts penalty charges and NOT Credit Cards, Store Cards and catalogue accounts like littlewoods, Kays, Next etc?

 

 

kind regards,

shane

[Destinyofsouls]

Just had a long conversation with the legal begals at the FSB ( Federation of small businesses) He says that there is nothing anyone can do about this legislation from the FSA. It may be possible that the Secretary of State could overule the FSA, but that is highly unlikely.

He firmly beleives all the courts will allow the stay and not have them set aside until the outcome of the hearing.

I asked him about the No win No fee companies and they would cease trading or go bankrupt, surely that would not be allowed. he said nothing in legislation would prevent this from happening, as they made a comercial decision and that is has not gone in their favour. So, unless the legal begals in CAG & MSE can do something, it looks like it's all over until this hearing

[Lunatic Flea]

Just had a long conversation with the legal begals at the FSB ( Federation of small businesses) He says that there is nothing anyone can do about this legislation from the FSA. It may be possible that the Secretary of State could overule the FSA, but that is highly unlikely.

He firmly beleives all the courts will allow the stay and not have them set aside until the outcome of the hearing.

I asked him about the No win No fee companies and they would cease trading or go bankrupt, surely that would not be allowed. he said nothing in legislation would prevent this from happening, as they made a comercial decision and that is has not gone in their favour. So, unless the legal begals in CAG & MSE can do something, it looks like it's all over until this hearing

I assume the courts will only grant a stay if it has been requested? I also understand from a previous post that the Banks have to go through the Master of Rolls first before the Banks can make the request. One hopes that no court will grant a stay because they have been reading the papers etc. My court manager told me this morning that they are carrying on as previously until they hear otherwise. Then again you never know:)

[un1boy]

Just had a long conversation with the legal begals at the FSB ( Federation of small businesses) He says that there is nothing anyone can do about this legislation from the FSA. It may be possible that the Secretary of State could overule the FSA, but that is highly unlikely.

He firmly beleives all the courts will allow the stay and not have them set aside until the outcome of the hearing.

I asked him about the No win No fee companies and they would cease trading or go bankrupt, surely that would not be allowed. he said nothing in legislation would prevent this from happening, as they made a comercial decision and that is has not gone in their favour. So, unless the legal begals in CAG & MSE can do something, it looks like it's all over until this hearing

 

But the 8 week rule is actually set out in the Financial Services and Markets Act 2000, of which only the secretary of state can allow a deveiation. I am sure the FSA cannot just let them get away with "breaking" the law just by their say so - I'll have to check over the act when I get home.

[Destinyofsouls]

But the 8 week rule is actually set out in the Financial Services and Markets Act 2000, of which only the secretary of state can allow a deveiation. I am sure the FSA cannot just let them get away with "breaking" the law just by their say so - I'll have to check over the act when I get home.

 

 

Un1boy,

have a look at S2(4) (a) here:

Financial Services and Markets Act 2000

[conar686]

FM BW

 

So? TB's judgment will be to see if he will be allowed to proceed with his court case, so it will make not one bit of difference to the OFT case.

 

A wise man once said - 'The start of a long journey begins with the first step' who knows what the judge will order - he may decide to hear it all himself regardless of the OFT case.

 

I know you cannot judge tone from responses so I'm going to assume that you meant your comment to be informative rather than yet another negative response on this thread.

[un1boy]

Un1boy,

have a look at S2(4) (a) here:

Financial Services and Markets Act 2000

 

Thanks Destiny - I can't access here. I'll have to wait until I get home, unless you can post s2(4)(a) and I'll have a look at it now.

[Destinyofsouls]

Sect 2(4)(a) of the FS& M Act 200

 

(4) The Authority's general functions are-

 

(a) its function of making rules under this Act (considered as a whole);

(b) its function of preparing and issuing codes under this Act (considered as a whole);

© its functions in relation to the giving of general guidance (considered as a whole); and

(d) its function of determining the general policy and principles by reference to which it performs particular functions.

[un1boy]

Thanks destiny - what/who does it mention in the act as "The Authority"?

[crfx250]

FM BW

I know you cannot judge tone from responses so I'm going to assume that you meant your comment to be informative rather than yet another negative response on this thread.

 

I'm not alone then

[Destinyofsouls]

Cases where the Treasury may start an independant enquiry

 

14. - (1) This section applies in two cases.

(2) The first is where it appears to the Treasury that-

(a) events have occurred in relation to-

(i) a collective investment scheme, or

(ii) a person who is, or was at the time of the events, carrying on a regulated activity (whether or not as an authorised person),

which posed or could have posed a grave risk to the financial system or caused or risked causing significant damage to the interests of consumers; and

(b) those events might not have occurred, or the risk or damage might have been reduced, but for a serious failure in-

(i) the system established by this Act for the regulation of such schemes or of such persons and their activities; or

(ii) the operation of that system.

[Destinyofsouls]

Thanks destiny - what/who does it mention in the act as "The Authority"?

 

 

The FSA

[Destinyofsouls]

Also the following. Been trying to figure out what © means.

(3) In discharging its general functions the Authority ( FSA) must have regard to-

(a) the need to use its resources in the most efficient and economic way;

(b) the responsibilities of those who manage the affairs of authorised persons;

(c) the principle that a burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction;

(d) the desirability of facilitating innovation in connection with regulated activities;

(e) the international character of financial services and markets and the desirability of maintaining the competitive position of the United Kingdom;

(f) the need to minimise the adverse effects on competition that may arise from anything done in the discharge of those functions;

[TECHSPEC]

It's taken to long for me to find this thread! I'm sure these questions have already been answered but can someone please clarify for me:

 

The banks and Financial ombudsman service, as a result of this action now no longer have to respond to any of our claims until the high court has reached a decision? Is this correct and if so does it only apply to bank accounts penalty charges and NOT Credit Cards, Store Cards and catalogue accounts like littlewoods, Kays, Next etc?

 

 

kind regards,

shane

 

At the moment, it is just current accounts, and the rest can proceed.

 

I can see the banks etc trying to get them included though. But the credit/store card cases are different, in that we do have a contract with regards to limits and monthly payments, so its easier for us to prove that we are being punished for 'breach of contract'.

[un1boy]

Also the following. Been trying to figure out what © means.

(3) In discharging its general functions the Authority ( FSA) must have regard to-

• (a) the need to use its resources in the most efficient and economic way;

• (b) the responsibilities of those who manage the affairs of authorised persons;

• (c) the principle that a burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction;

• (d) the desirability of facilitating innovation in connection with regulated activities;

• (e) the international character of financial services and markets and the desirability of maintaining the competitive position of the United Kingdom;

• (f) the need to minimise the adverse effects on competition that may arise from anything done in the discharge of those functions;

 

My understanding is that if they deviate the rules then the benefits have to be proportionate to the deviation.

 

Does the act actually state the FS Ais the authority?

[Destinyofsouls]

Yes Un1boy it does

PART I THE REGULATOR

 

The Financial Services Authority. 1. - (1) The body corporate known as the Financial Services Authority ("the Authority") is to have the functions conferred on it by or under this Act.

(2) The Authority must comply with the requirements as to its constitution set out in Schedule 1.

(3) Schedule 1 also makes provision about the status of the Authority and the exercise of certain of its functions

[Destinyofsouls]

My understanding is that if they deviate the rules then the benefits have to be proportionate to the deviation.

 

quote]

 

Well that certainly does not happen