Tuttsi V Halifax ( 18 year claim )

Re: Tuttsi V Halifax ( 18 year claim )

Edited by Budgie - Simpler than quoting everything - answers - suggestions etc in red


Letter is almost ready to go, having changed the I's to we etc.

There is just one word we am not sure about " conceded" should that be concealed! conceded is the correct word

Also, should we bring up again the question of interest! and do we give them a time scale before legal action is commenced! Have added bit from your previous letter ( regarding the amount of your claim ) at the end of your updated letter below and also added a bit re timescales and commencing legal proceedings

THANKYOU XX

Thank you for your letter dated 16th September 2008 in which you have agree our financial hardship circumstances and have offered a payment of £28 without admission of liability, in respect of the single default charge applied to the account within the last 6 years.

We note your comments regarding the remainder of the default charges in that they were applied to our account pre six years and that you consider that this part of our claim to be time barred under the Limitation Act 1980.

However, we are fully aware that the Limitation Act 1980 makes reference, under Section 32, to the fact that the period of limitation shall not begin to run until the Claimant has discovered the fraud, concealment or mistake ( as the case may be ) or could with reasonable diligence have discovered it.

As stated in our letter dated 14th August 2008, we believe that every single default charge applied to our account since 1990 is an unlawful penalty charge. We did not become aware of this until the Office of Fair Trading published the report "Calculating fair default charges in credit card contracts" in April 2006. The report states that the principals covered have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and store cards. …….page 2

Page 2

Additionally, it has taken a High Court test case between the Office of Fair Trading and several High Street Banks, including yourselves, to investigate the complexities of your charging regime as applied to current accounts. Taking this into account we submit that it is highly unlikely that a litigant in person might have been expected to fully identify that the terms dictating such default charges were also able to be assessed for fairness under the UTCCR 1999 as was ruled by Justice Smith in his initial judgment in April 2008.

In your response you state that you "are satisfied that these default charges have been correctly applied" It therefore appears that you are electing to present these charges as if they were a legitimate loss or cost following the breaches of contract to which they relate. However, you fail to provide a breakdown of these charges or explain how they relate to your actual costs. Since opening our account you have been in the privileged position of being able to withdraw monies in respect of these default charges and we believe we that we are entitled to know whether they actually represent a justifiable business cost. We believe that your failure to disclose the true costs is sufficient evidence that you have been acting without true accountability to your Customer and are therefore consciously concealing the true nature of these default penalty charges, ie, that you have exercised the contractual terms in respect of default charges with a view to profit.

We therefore believe that section s.32 (1)(b) of the Limitation Act 1980 is applicable to our claim on the grounds that we could not reasonably have discovered your deliberate concealment of the facts relevant to our right of action before referenced OFT report was published in April 2006, or alternatively, that s.32 (1)(c) of the Limitation Act 1980 is applicable to our claim on the grounds that the payments were conceded on the mistaken belief that the said charges and interest thereon did not amount to penalties and that we could not reasonably have discovered the said mistakes before the OFT report was published in April 2006.

We therefore respectfully request that you reconsider your current position regarding the pre six year default charges applied to our account and amend your "without liability" offer accordingly. For the avoidance doubt we calculate that you have taken £2281.50 in charges and additionally we believe that you should pay interest on these charges by way of compensation. We calculate this interest to be a total of £1993.49. We therefore require you to repay a total of £4274.99 as detailed in the spreadsheet attached with our original letter dated 14th August 2008.

We look forward to hearing from you within 14 days. Should you fail to respond within this period we wish to advise you that we intend to commence legal proceedings without further warning or delay.

Re: Tuttsi V Halifax ( 18 year claim )

I think with some further research and careful wording of Smasher's argument.
combined with some authorities and case law ( some of which you have alreay suggested ) we can put together a pretty conclusive argument against the Banks use of the Limitation Act.

Will check if we already have another thread we can copy some of this stuff across to so we can continue the work.

Main thing is I think Tuttsi is ready to go.

Will be interesting to see what happens.

Budgie

Thanks both Budgie and Tanz for your amazing input. I am just about to copy it on to a letterhead and whip it in the post by recorded delivery.

I really appreciate all your help as I am lost on this stuff. I just hope that my claim will help others as well with the information that has now come to light.

Well done guys


xxxxx

[Happyolddog]

Re: Tuttsi V Halifax ( 18 year claim )

Yep its looking good Tutts.

Post us a link if you start a new thread Bud and will do some digging around my files for stuff to add to it for discussion.

Just hopping onboard this thread for a plea for help. I have made a six year claim from the halifax and got all charges back. I now intend to try to get back further charges. I now have 26 years of paperwork relating to my account. I have tried to decipher which are charges and which are transactions.........not easy because the codes they use to identify transactions have changed over that period. There was a period where a sum of £12 was taken every few days (I think that was a charge). Does anybody know the codes used by the Halifax 20+ years ago. I have the codes they use now and back 12 years.

Please answer on my thread if you know@ http://www.legalbeagles.info/forums/...read.php?t=595

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Yep its looking good Tutts.

Post us a link if you start a new thread Bud and will do some digging around my files for stuff to add to it for discussion.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

I think with some further research and careful wording of Smasher's argument.
combined with some authorities and case law ( some of which you have alreay suggested ) we can put together a pretty conclusive argument against the Banks use of the Limitation Act.

Will check if we already have another thread we can copy some of this stuff across to so we can continue the work.

Main thing is I think Tuttsi is ready to go.

Will be interesting to see what happens.

Budgie

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Nicely re-worded Bud. I prefer yours to mine lol.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Very good Tanz

OK Tuttsi, I have incorporated Tanz's bit into the letter.
I like Smasher's theory but feel we need to tweak the idea a bit before going to print with it.
It is always difficult to relate income to profit !!!!
I suggest we leave Smasher's idea out and work on it for use in future paperwork.

Here's an updated draft which I think would be OK for you to use.





Dear Halifax,

Thank you for your letter dated xx/xx/xxxx in which you agree my financial hardship situation and offer me a full refund, without liability, of £28 in respect of the single default charge applied within the last 6 years.

I note your comments regarding the remainder of the default charges in that they were applied to my account pre six years and that you consider that this part of my claim to be time barred under the Limitation Act 1980.

However, I am fully aware that the Limitation Act 1980 makes reference, under Section 32, to the fact that the period of limitation shall not begin to run until the Claimant has discovered the fraud, concealment or mistake ( as the case may be ) or could with reasonable diligence have discovered it.

As stated in my letter, dated xx/xx/xxxx, I believe that every single default charge applied to my account since 1990 is an unlawful penalty charge. I did not become aware of this until the Office of Fair Trading published the report “Calculating fair default charges in credit card contracts” in April 2006. The report states that the principals covered have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and storecards.

Additionally, it has taken a High Court test case between the Office of Fair Trading and several High Street Banks, including yourselves, to investigate the complexities of your charging regime as applied to personal current accounts. Taking this into account I submit that it is highly unlikely that a Litigant in Person might have been expected to fully identify that the terms dictating such default charges were also able to be assessed for fairness under the UTCCR 1999 as was ruled by Justice Smith in his initial judgment in April 2008.

In your response you state that you “are satisfied that these default charges have been correctly applied” It therefore appears that are electing to present these charges as if they were a legitimate loss or cost following the breaches of contract to which they relate. However, you fail to provide a breakdown of these charges or explain how they relate to your actual costs. Since opening my account you have been in the privileged position of being able to withdraw monies in respect of these default charges and I believe I am entitled to know whether they actually represent a justifiable business cost. I believe that your failure to disclose the true costs is sufficient evidence that you have been acting without true accountability to your Customer and are therefore consciously concealing the true nature of these default penalty charges, ie, that you have exercised the contractual terms in respect of default charges with a view to profit.

I therefore believe that section s.32 (1)(b) of the Limitation Act 1980 is applicable to my claim on the grounds that I could not reasonably have discovered your deliberate concealment of the facts relevant to my right of action before referenced OFT report was published in April 2006, or alternatively, that s.32 (1)(c) of the Limitation Act 1980 is applicable to my claim on the grounds that the payments were conceded on the mistaken belief that the said charges and interest thereon did not amount to penalties and that I could not reasonably have discovered the said mistakes before the OFT report was published in April 2006.

I therefore respectfully request that you reconsider your current position regarding the pre six year default charges applied to my account and amend your "without liability" offer accordingly.

Yours sincerely Tuttsi

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Also just spotted this post by Smasher ( Overdrive ) on his new site ( British Consumer )

Interesting !

"I'm not sure if this has been highlighted anywhere else, certainly the pre-6 year claims have been in full swing for a long time yet, but I wonder if anyone has used the findings of the OFT study in their claim for charges older than 6 years?

My point is this.. The OFT stated in their recent report:
"We found that the banks earn over 30 per cent of all their revenues from insufficient funds charges.

Although banks apply charges in different ways the unit price for charges, where applied, is similar across suppliers. Overall the level of individual charges has gone up considerably in the last seven years whether adjusted for inflation or not. This is particularly the case for paid item fees, which increased from an average of £16 to £28, a nominal increase of 75 per cent over the period.


The 16 banks lent £680 million as unarranged overdrafts in 2006.
If the insufficient funds charges (excluding charges for unpaid items) of £1.5 billion in 2006 were treated as the cost of borrowing on the £0.68 billion average unarranged overdraft balance over the year for the 16 banks, we estimate that the annual interest rate would be more than 220 per cent. While short term loans are distinct in their short duration and can be expensive to administer, this level of charging compares unfavourably with many similar forms of lending such as credit cards and personal loans."

So, with the above in mind and now looking to the use of S. 31.2(b) of the limitations act 1980 which states that the limitation period of 6 years may be postponed if: any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant

There is no way that these two could possibly mix. It is inconceivable that a bank wouldn't have been aware where over 30% of their total income was coming from. This together with the way they all restructured their T&Cs to get around the law regarding penalty charges for the purpose of the test case provides quite a strong argument in my opinion."

I would also add this:

"It has taken a high court test case between the Office of Fair Trading and several High Street Banks to identify the complexities of bank charges applied to current accounts. Therefore with this in mind it is highly unlikely that a Litigant in Person could have been expected to identify fully that they had a course of action prior to the OFT's initial investigation into credit card charges of April 2006. Although it is agreed that this initial report related to default charges on credit card accounts this is when I first started to look into whether it applied to current account charges and my suspisions and the suspisions of many others that the charges were able to be assessed for fairness under the UTCCR 1999, were upheld by the Judge in this recent test case in his initial judgment on **/**/2008"

Or words to that effect.

Re: Tuttsi V Halifax ( 18 year claim )

Hi Budgie

Thanks for the find - of info which I agree with you is a fantastic finding.

The letter has not gone yet and was going to send it today, do I need to add anymore info to it before it is posted in light of the extra info you have found. Or do we keep this for the argument! I will hold up the letter untill I hear from you.

Also, it occurred to me reading that artcle "they found banks earn over 30% of all their revenues from insufficient bank charges" Being that this is an OFT statement and in line with the Abbey hardship claims interim settlements at 65% sounds to me like the OFT and the banks may cap all the claims at arround £12 like the credit cards. As the figures are coming out extremely close.

xx

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Also just spotted this post by Smasher ( Overdrive ) on his new site ( British Consumer )

Interesting !

"I'm not sure if this has been highlighted anywhere else, certainly the pre-6 year claims have been in full swing for a long time yet, but I wonder if anyone has used the findings of the OFT study in their claim for charges older than 6 years?

My point is this.. The OFT stated in their recent report:
"We found that the banks earn over 30 per cent of all their revenues from insufficient funds charges.

Although banks apply charges in different ways the unit price for charges, where applied, is similar across suppliers. Overall the level of individual charges has gone up considerably in the last seven years whether adjusted for inflation or not. This is particularly the case for paid item fees, which increased from an average of £16 to £28, a nominal increase of 75 per cent over the period.


The 16 banks lent £680 million as unarranged overdrafts in 2006.
If the insufficient funds charges (excluding charges for unpaid items) of £1.5 billion in 2006 were treated as the cost of borrowing on the £0.68 billion average unarranged overdraft balance over the year for the 16 banks, we estimate that the annual interest rate would be more than 220 per cent. While short term loans are distinct in their short duration and can be expensive to administer, this level of charging compares unfavourably with many similar forms of lending such as credit cards and personal loans."

So, with the above in mind and now looking to the use of S. 31.2(b) of the limitations act 1980 which states that the limitation period of 6 years may be postponed if: any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant

There is no way that these two could possibly mix. It is inconceivable that a bank wouldn't have been aware where over 30% of their total income was coming from. This together with the way they all restructured their T&Cs to get around the law regarding penalty charges for the purpose of the test case provides quite a strong argument in my opinion."

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

Excellent Tanz, thank you.

I don't know if the full jurisprudence is necessary at this stage but it would certainly be useful to pop in a POC should that become necessary.

What do you think ??

Budgie

Yeah I have quite a lot of limitation bits and bobs we can call on should we need to Bud. I have always been interested in this as it angers me that they should even contemplate using section 5 as a defence when its abundantly clear to me and you that they were fully aware of the fact that their charges were more than their costs and they chose to forget to tell us, I think not, its down right concealment and we just need to word it all right to make it stick.

The real issue and sticking point is often the word "deliberate" as you probably are aware mate.


In the Review of Banking Services in the UK, Chapter 7 indicated that the cost of an automatic credit transfer was around 10p, paying in cheques 45p by whatever method and using a branch counter for any transaction £1.00

http://www.hm-treasury.gov.uk/Documents/Financial_Services/Banking/BankReview/fin_bank_reviewfinal.cfm

For a bank to charge £30+ this would indicate that costs passed on to consumers had little if anything to do with the individual cost of the consumers breach of contract.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Excellent Tanz, thank you.

I don't know if the full jurisprudence is necessary at this stage but it would certainly be useful to pop in a POC should that become necessary.

What do you think ??

Budgie

[TANZARELLI]

Re: Tuttsi V Halifax ( 18 year claim )

"It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action." Lord Denning MR, King V Victor Parsons & Co [1973] 1 WLR 29, 33-34; Lord Millet, Cave Vs Robinson Jarvis & Rolfe [2002] UKHL 18, 20.

"In my opinion, Section 32 deprives a defendant of a limitation defence in two situations: (i)where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time." Lord Millet, Cave Vs Robinson Jarvis & Rolfe [2002] UKHL 18, 25.

By considering the two paragraphs above, if the Bank knew of the unlawfulness of the charges and yet failed to bring this to the attention of the Customer then this would amount to concealment, therefore the request for a refund and any subsequent claim made through the court, would fall within the scope of Section 32.1.b and this Claim would be allowed.

As to when the Bank had sufficient knowledge to consider that their charges may have been unlawful, it is reasonable to use the same test that is applied to the Customer in determining when their knowledge became relevant.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

OK, here is a draft response for comment, amendment, adaption etc etc etc

Dear Halifax,

Thank you for your letter dated xx/xx/xxxx in which you agree my financial hardship situation and offer me a full refund, without liability, of £28 in respect of the single default charge applied within the last 6 years.

I note your comments regarding the remainder of the default charges in that they were applied to my account pre six years and that you consider that this part of my claim to be time barred under the Limitation Act 1980.


However, I am fully aware that the Limitation Act 1980 makes reference, under Section 32, to the fact that the period of limitation shall not begin to run until the Claimant has discovered the fraud, concealment or mistake ( as the case may be ) or could with reasonable diligence have discovered it.

As stated in my original letter, dated xx/xx/xxxx, I believe that every single default charge applied to my account since 1990 is an unlawful penalty charge. I did not become aware of this until the OFT published the report “Calculating fair default charges in credit card contracts” in April 2006. The report states that the principals covered have wider implications for analogous standard default terms in other agreements including those for mortgages, current bank accounts and storecards.

In your response you state that you “are satisfied that these default charges have been correctly applied” It therefore appears that are electing to present these charges as if they were a legitimate loss or cost following the breaches of contract to which they relate. However, you fail to provide a breakdown of these charges or explain how they relate to your actual costs. Since opening my account you have been in the privileged position of being able to withdraw monies in respect of these default charges and I believe I am entitled to know whether they actually represent a justifiable business cost. I believe that your failure to disclose the true costs is sufficient evidence that you have been acting without true accountability to your Customer and are therefore consciously concealing the true nature of these default penalty charges, ie, that you have exercised the contractual terms in respect of default charges with a view to profit.
I therefore believe that section s.32 (1)(b) of the Limitation Act 1980 is applicable to my claim on the grounds that I could not reasonably have discovered your deliberate concealment of the facts relevant to my right of action before the referenced OFT report was published in April 2006, or alternatively, that s.32 (1)(c) of the Limitation Act 1980 is applicable to my claim on the grounds that the payments were conceded on the mistaken belief that the said charges and interest thereon did not amount to penalties and that I could not reasonably have discovered the said mistakes before the OFT report was published.

I therefore respectfully request that you reconsider your current position regarding the pre six year default charges applied to my account and amend your without liability offer accordingly.

Yours sincerely Tuttsi

Re: Tuttsi V Halifax ( 18 year claim )

Tutts is the whole claim outside of limitation or just part of it. If some is inside then they may just agree to pay part or all of that element and not other charges outside of limitation.

That is correct Tanz they have offered the one and only charge back which is within the 6 year period for £28 - all the rest are all outside the 6 year limit.

Could of, should of, but I did'nt do the claim 18 months ago when I would have got back at least a quarter of the claim it is my own fault deciding the best route sooner, there was always the elemnet of the limitations part of the claim which at the time could not get my head arround.

Still at least Celeteco has said it is an interesting case, which has been accepted by Halifax as a genuine hardship.

We will all be able to learn from this case I am sure including me.

xx