Charges over 6 years old - help needed!

hicskis

Well then that would be up to the Highest of the Highest Court's in Northern Ireland, then the highest of the highest courts in the EC somewhere way way way in the future - i'm afraid Addisson it is Statute Barred.

Alpine_Star

hicskis wrote: »

Well then that would be up to the Highest of the Highest Court's in Northern Ireland, then the highest of the highest courts in the EC somewhere way way way in the future - i'm afraid Addisson it is Statute Barred.

It's not as clear cut as that.

By Thomas Brennan.

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a gray area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

There is an additional argument over the Limitations Act 1980:

Section 32(1)(b) of the Limitation Act 1980 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.”

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that:

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

There is also support for this position from the ECJ. InCofidis SA v Jean-Louis Fredoutthe ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

The question put to the ECJ was:

Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?'

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.The court concluded:

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts.

A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”


This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases. After all, a right without a remedy is no right at all.

hicskis

I agree that the Law is never as clear cut as that - i could if you gave me or the banks enough time find a very old Law such as the Agricultural Act of 1772 (doesn't exist as far as i know) with a case attached to it Smith v. Howdidoodly inc. (also fictional) - that say's otherwise.

Do you really want to try and test that in Court. I think the few hundred or thousand of pounds maximum that you are tring to claim Addison - ain't worth it. Unless your bored and a billionaire of course - then i'd say - stick it to them.

Premier_2

natweststaffmember wrote: »

They did not argue about the level of payouts since that was not part of the OFT case. If one individual wins a case at county court, would you not say that as an individual this is not highly significant to them.

You're talking about specifics of the case - I'm talking in general that it referred to attempting to reclaim bank charges.
Have a read of my previous post in it's entirety which I think you will see addresses the question you raise here.;)

natweststaffmember wrote: »

You are referring to the Berwick case I think which was against Lloyds(no costs were awarded against him, for your information rather than mine).

I wasn't referring to any specific case, just claims in general made to small claims courts attempting to reclaim bank charges.

natweststaffmember wrote: »

On regulation 6.2(b). Read the press release and judgement, why are the Law Lords suggesting Regulation 5?

The comments were made to clarify what the judgement referred to ... and sometimes that's easier to do by saying what it doesn't refer to. The 'Law Lords' didn't make any judgement other than what the case was initially based on.
It's a bit like when the DPP suggested the MPs/Lord who are currently charged with contraventions of the theft act should test the argument regarding parliamentary privilege in court if that is what they intended to rely upon as a defence - again no suggestion that even if they were to do so, that they would win.

natweststaffmember wrote: »

I don't agree at all with you unless the bank appeals to a higher court. If they do not appeal a loss at county court level then the points may need further referral(which I am sure I have suggested for the last few months in posts on some of the forums---cannot remember if it was here or elsewhere).
If the bank lose in county court and do not appeal then the individual case is done and dusted. So are we now on a new merry go round on this point??

I think we'll have to agree to disagree if you believe any county court judgement sets legal precedent.