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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
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
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