Tuttsi V Halifax ( 18 year claim )

I have a Cardcash account that commenced in 1990 and ended in 2002. Unfortunately it makes the whole claim over 6 years old. I am going to try and make a claim and have done the spreadie with various options on CCI it is extremely large. But before I send the letters to Halifax I wondered if anyone has the T&C's for 1990, a tall order I know, but someone may just be sitting on one or know how to obtain one.

I did ask Halifax in my SAR for the T&C's but this fell on deaf ears.

Also, if anyone has any ideas on the Limitation Act!

Thanks
Dsxx

[Guest]

Re: HALIFAX 18 year claim

I wonder how deaf they would be if you issued a claim against them for non-compliance with the DPA?

I did that to Halifax for a mortgage account - they sent me what I needed, with data going back to 1992.

If you need details on what to do and how to do it, look in the library, or ask here and I can help you.

[TUTTSI]

Re: HALIFAX 18 year claim

Thanks Celtco, they sent me all my statements and that was it! I have already written back telling them that they have not given me all the required documents and they are now well over the 40 days.

If you could point me to the letter which points out their wrong doings, perhaps I can incorporate this with the start of the claim for the charges- a double wammy... maybe.

Also, when I requested from Abbey under a SAR, they told me that terms and Conditions do not come under a SAR - is this correct.

Dsxx

[thephoenix]

Re: HALIFAX 18 year claim

It's my understanding that a SAR request is for ALL subject data held by the company as well as ALL documents referred to the subjects agreement or account.
which includes Terms and conditions as they are always mentioned on any agreement.

[TUTTSI]

Re: HALIFAX 18 year claim

It's my understanding that a SAR request is for ALL subject data held by the company as well as ALL documents referred to the subjects agreement or account.
which includes Terms and conditions as they are always mentioned on any agreement.

Thanks Phoenis, that is what I thought! hmmmm

I feel a letter coming on.....just waiting for Celtco to answer.

[Guest]

Re: HALIFAX 18 year claim

Sadly terms and conditions do not form part of the personal data that make up a response to a Subject Access Request. Sometimes however, you get lucky and they send account details along with the statements - that is what I managed to get them to send me.

Why are you requesting them in particular?

[TUTTSI]

Re: HALIFAX 18 year claim

Sadly terms and conditions do not form part of the personal data that make up a response to a Subject Access Request. Sometimes however, you get lucky and they send account details along with the statements - that is what I managed to get them to send me.

Why are you requesting them in particular?

I thought before I started with this claim it would be best to know what the T&C's said at that time.

[Guest]

Re: HALIFAX 18 year claim

I suspect that they will be predictably similar to the T&C's now. It is only really important in claims for certain so-called service fees, such as when claims for ERC's were being made. For a claim such as this, your biggest obstacle is going to be the Limitation Act.

This is not insurmountable, but how do you plan on tackling it?

[TUTTSI]

Re: HALIFAX 18 year claim

I suspect that they will be predictably similar to the T&C's now. It is only really important in claims for certain so-called service fees, such as when claims for ERC's were being made. For a claim such as this, your biggest obstacle is going to be the Limitation Act.

This is not insurmountable, but how do you plan on tackling it?

I am working on this, probably using Sempra for the CCI, and looking at the Limitations Act, but not sure how at present - any ideas!

[Maxwall]

Re: HALIFAX 18 year claim

I would agree on using Sempra and the Limitations act. I would personally put down in your POC that the bank would be unjustly enriched, if you were not paid CCI. I used this in my POC against the Halifax Credit Card last year.

1.The Claimant is aware and respects that the court has no statutory power or discretion under the County Courts Act 1982 to award compound interest. Further, the Claimant seeks to distinguish the basis of the claim for compound interest in the present case from the recent High Court judgment in the case of Halliday v Halifax Bank of Scotland [2007] A11 ER (D) 66 where it was found that, on the assumption that the bank charges which formed the principle claim were found to be unenforceable penalties, the Claimant was not entitled to be awarded the banks rate of interest as provided for in the account contract by virtue of an implied mutual or reciprocal term, and that no such term could be implied.

2.The claimants case for compound interest is not reliant on any implied contractual term, and indeed it is the Claimants assessment that notwithstanding the aforementioned judgment, such a claim based upon the allegation of the existence of an implied reciprocal term of contract would always have been likely to fail in any event, by virtue of the five factors necessary to imply a term as set down by His Honour Judge Thayne Forbes QC in Davy Offshore v Emerald Field Contracting (1991) 55 BLR 1, and the “Business efficacy test” from The Moorcock (1889). It is therefore submitted that the case of Halliday v Halifax Bank of Scotland holds no relevance whatsoever to the issues of the interest claim in the present case.

3.It is the claimant’s case, which is more fully stated below, that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the recovery of the bank charges and simple interest at the statutory rate. The Defendant has been in wrongful possession of funds over a number of years and as a lending institution would have earned profit by way of interest by re-lending those funds at its commercial compounded rates. Conversely, the Claimant having been denied use of the funds in the defendant’s wrongful possession. The Claimant therefore seeks a full remedy which allows complete restitution of the wrongful and unjust gains of the Defendant.

4.The Claimant submits that the issues of restitution raised in this case bring up serious points of law. It is respectfully requested therefore that the court considers them on their merits with proper examination of the issues and evidence, without prejudice to the current situation and publicity in respect of the hundreds of customers litigating on-masse on the issue of credit card and bank charges.

5.It is the claimant’s contention that a constructive trust arises upon payment of the charges which form the principle claim, and that the Defendant’s unconscionable behaviour in profiting unlawfully and without consent or authorisation breached the duty of trust owed to the claimant. As compound interest is available in equity in situations where a trustee has made wrongful profit from its position, the claimant relied on invoking the equitable jurisdiction in order that the court may be open to grant a complete remedy which provides full restitution of the unjust enrichment enjoyed by the defendant. The Claimant’s submissions were in mind of the established position that the court had no power at common law or in statute to award compound interest under English law. This position prevailed despite recommendations from the Law Commission calling for legislature to allow compound interest, as well as criticism from several eminent judges and Law Lords that the situation was outdated and out of touch with modern reality, and had lead to many unjust outcomes.

6.However, since the Defendant submitted a statement in compliance with the Civil Procedure Rules, a recent House of Lords judgment in the case of Sempra Metals v Inland Revenue Anor [2007] UKHL 34 has been published, which establishes a new ground for the awarding of compound interest at common law. The House held by a majority that compound interest is now recoverable at common law in restitutionary claims for money paid under a mistake. Lord Hope of Craighead stated in his majority judgment; “The time has come to recognise that the court has jurisdiction at common law to award compound interest where the claimant seeks a restitutionary remedy for the time value of money paid under a mistake.”

7.It is therefore no longer necessary for the claimant to invoke the equitable jurisdiction by demonstrating the existence and breach of a trust or fiduciary relationship between it and the Halifax in order that the court may be open to grant a restitutionary remedy of compound interest. This new authority provides that in cases such as the present compound interest is available at common law as a matter of right rather than being a discretionary equitable principle.

8.The Claimant has already demonstrated that the charges levied to its credit card account were wrongfully debited by the defendant contrary to common law and statute. The claimant further submits that such charges were therefore paid under a mistake – a mistake of fact.

9.The Claimant accepted the charges in the belief that they reflected the true cost of administering the contractual breaches. The charges were and are presented as being a legitimate charge to compensate loss. The claimant has approached the Defendant several times to complain about the charges and each time the Halifax were adamant that such charges were fair and reasonable and imposed to compensate the loss caused to the Defendant by the claimants own actions in the “mismanagement” of the Credit Card account. The claimant has always believed and the Defendant has always asserted, that the charges were imposed as a result of manually operated and labour intensive procedures. Furthermore, the claimant was referred to a clause of the account agreement, which states that the Halifax may take money out of the account to cover any losses or expense incurred by it in relation to the customers account. Unjust Enrichment

10.The Claimant submits that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by virtue of charges levied to the Claimants account, over a period of up to 5 years. The absolute fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by re-lending at higher commercially compounded interest rates. Therefore, it is the claimants submission that the sums wrongfully and unlawfully acquired from the claimant by way of penalty charges would over the considerable time they have been in the Defendants wrongful possession, have earned considerable profit by virtue of the commercial rates of compounded interest charged by the Defendant on its lending. Therefore, for complete restitution to occur the Claimant submits that an award of compound interest is necessary to provide full restitution of the ‘time value’ of the money and thus a just result. I submit that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds.

11.The Defendant bank continues to levy penalty charges to its customer’s accounts despite increasing public awareness that they are challengeable as disproportionate contractual penalties and unenforceable at law. Such charges account for a highly significant proportion of the banks revenue stream and annual turnover (approx 12% - see paragraph 24 above). The defendant continues to levy its charges on a huge scale despite its knowledge that the charges it imposes are unlawful, and despite its realisation that it may one day have to pay each such charge back. When proceedings are brought by the banks customers to recover the charges, in some cases years later, if the Defendant is only ever forced to repay the sum wrongfully taken plus simple interest at the statutory rate, the Defendant is in the position whereby it is has still made significant unlawful profit by virtue of the sums earned in compound interest whilst the charges were in its possession and reinvested at its commercial compounded rates. Even if the Defendant repaid every charge to every customer its profit of compound interest earned by reinvesting the sums when in its wrongful possession would be highly significant. The Defendant could therefore continue to consciously and wilfully put wrongfully debited charges to use to generate further unlawful profit with no form of redress. The Claimant submits that this situation is inherently wrong and contrary to the law of restitution and principles of unjust enrichment.

12.In relation to the matters set out above, it is submitted that by virtue of the development of the law recently established in Sempra v Inland Revenue, it is open to the court to award compound interest in a case such as the present. Before this new ground was established, the awarding of compound interest was limited to cases involving fraud or where a breach of fiduciary or other trust duty was established. In the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Lord Goff of Chieveley and Lord Woolf delivered powerful judgments in favour of extending the jurisdiction in order that full restitution could be provided even in cases where no breach of trust could be found. Lord Goff;

“I wish however to record that Hobhouse J. was in no doubt that, if he had jurisdiction to do so, he should award compound interest in this case. He said [1994] 4 All E.R. 890, 955: "Simple interest does not reflect the actual value of money. Anyone who lends or borrows money on a commercial basis receives or pays interest periodically and if that interest is not paid it is compounded. I see no reason why I should deny the plaintiff a complete remedy or allow the defendant arbitrarily to retain part of the enrichment which it has unjustly enjoyed."

With that reasoning I find myself to be in entire agreement. The council has had the use of the bank's money over a period of years. It is plain on the evidence that, if it had not had the use of the bank's money, it would (if free to do so) have borrowed the money elsewhere at compound interest. It has to that extent profited from the use of the bank's money. Moreover, if the bank had not advanced the money to the council, it would itself have employed the money on similar terms in its business. Full restitution requires that, on the facts of the present case, compound interest should be awarded, having regard to the commercial realities of the case. As the judge said, there is no reason why the bank should be denied a complete remedy.”

13.The passage above represented the minority view. The majority held that compound interest could not be awarded in the absence of a trust or fiduciary duty, even if it was just to do so, as it would be to usurp the function of Parliament. Lord Browne-Wilkinson commented that legislature had twice made provision for interest, but never compound interest. However, the minority approach of Lords Goff and Woolf has prevailed in the recent House of Lords case of Sempra v Inland Revenue. Lord Mance’s statement in relation to the minority approach in the Westdeutsche case; “In my view, the House can and should now adopt this approach. I would in these circumstances respond to Sempra's invitation to revisit the Westdeutsche case, by adopting the minority approach in preference to that of the majority and also by determining that in appropriate circumstances equity can go further and provide relief in respect of any actual interest benefit received from any principal sum paid by mistake, even though such principal may be recouped before action brought.”

14.This new ground in the law of restitution establishing the availability of compound interest at common law in cases such as the present was confirmed and stated authoritatively by Lord Nicholls in his leading judgment;“There can only be one answer on this important question of law. Nobody has suggested a good reason why, in a case like the present, an award of compound interest should be denied to a claimant. An award of compound interest is necessary to achieve full restitution and, hence, a just result. I would hold that, in the exercise of its common law restitutionary jurisdiction, the court has power to make such an award.”

15.It is thus submitted that it is now wholly within the courts jurisdiction to make a restitutionary award of compound interest in this case. There is no conceivable reason why, upon the facts of the present case, that the defendant should be allowed to retain part of the unjust enrichment which it has undoubtedly enjoyed, or that the Claimant should be denied a complete and just remedy which recognizes the reality and true extent of the unjust enrichment enjoyed by the Defendant and allows complete restitution of the wrongful gains made.

16.The defendant may assert that the specific amount of profit derived from the use of the funds cannot be accurately measured and thus the level of unjust enrichment cannot be proved. However, it is submitted that proof of the exact use of the money or an account of profits is not required in order for a restitutionary award of compound interest to be made. This position was stated in the Sempra case by Lord Hope; “Money has a value, and in my opinion the measure of the right to subtraction of the enrichment that resulted from its receipt does not depend on proof by Sempra (claimant) of what the Revenue (defendant) actually did with it. It was the opportunity to turn the money to account during the period of the enrichment that passed from Sempra to the Revenue. This is the benefit which the defendant is presumed to have derived from money in its hands.” Thus only the opportunity to turn the funds to profit is required to be established rather than the proof of precisely what profits were actually made. In the present case the as the defendant is a lending institution, it is inconceivable that it could have put the wrongfully debited sums to any other use but to earn further profits. The defendant has undoubtedly derived significant benefit from the money in its hands.

17.In the case of Sempra v Inland Revenue it was finally recognised by the English legal system that compound interest is a necessary part of modern financial reality. Lord Nicholls in the leading majority judgement stated; “We live in a world where interest payments for the use of money are calculated on a compound basis. Money is not available commercially on simple interest terms. This is the daily experience of everyone, whether borrowing money on overdrafts or credit cards or mortgages or shopping around for the best rates when depositing savings with banks or building societies. If the law is to achieve a fair and just outcome when assessing financial loss it must recognise and give effect to this reality.”

18.Therefore the claimant submits that for a fair and just result compound interest must be awarded in the present case. Not only has the defendant derived benefit from the money in its hands, the claimant has also been denied use of the money. This means the claimant was forced to replace those funds by way of an overdraft on a separate account, and loans at a higher rate. The reality is that any funds borrowed commercially carry compound rates of interest. There are no financial products or credit facilities which carry only simple interest. Furthermore the claimant whilst wrongfully denied benefit of the funds was denied the opportunity to invest it. Such investment would have invariably earned compounded rates of interest.

19.The Claimant seeks an award that can, insofar as it is possible, put both parties in the same position as before the wrongfully debited charges were imposed. Restitution requires that the time value of the money is also considered when the Claimant seeks a remedy for money paid under a mistake. Upon the facts of this case, simple interest at the statutory rate patently does not achieve restitution nor a just result. It would leave the defendant, a powerful financial institution, unjustly enriched at the expense of the Claimant, a self-litigating consumer. The Claimant urges the court therefore to exercise its power at common law to grant a restitutionary award of compound interest.

The Halifax ran for cover with that part of my POC, and paid up £3500 and included CCI.

Hope this helps

[TUTTSI]

Re: HALIFAX 18 year claim

Hi Maxwall

Gosh thanks for your input on how you dealt with the Halifax.

Did you put the POC together yourself or did someone help you with your POC as it seems very well structured and with a lot of guts in it.

When you say Halifax went running for cover, did they pay you in full before the matter got into court.

For the Limitations Act have you any suggestions on how to argue this sucessfully as D & G can be rather tetchy on this subject as my claim is from 1990-2002 and currently it is in excess of £50K. If I kept it to 8% statutory interest it would be arround £5K

I really want to make this one work and probably I would take an offer from them before court proceedings so I did not have to go to court as the court fees are £650 + and I am sure if they decided to fight this in court they would have an experienced legal team against little old me.

For the size of this claim would it be dealt with in the CC or a higher court and would I be able to represent myself adequately.

I did sed an SAR to Halifax and their 40 days has expired, they have only sent me bank statements and nothing else which I have requested. So currently they are also in default. Should I use this as a leverage to get them to look at my claim.

Also, am I right in thinking that the larger claims on fast/multi track you can request a breakdown of their charging regime, pre protcol.... or have I got this wrong.

I await hearing from you.
DS

[TANZARELLI]

Re: HALIFAX 18 year claim

Good post Maxwall

[Celestine]

Re: HALIFAX 18 year claim

For arguing the Limitations Act, I used this paragraph in my POC, which resulted in a successful settlement of all pre 6 year charges.

16. (a) The Claimant seeks permission to include 49 penalty charges debited from the Account by the Defendant between 25/11/1999 and 19/02/2001, under s.32 (1) (b) Limitation Act 1980, on the grounds that the Claimant could not reasonably have discovered the Defendants concealment of the true nature of these charges before the publication in April 2006 of the Office of Fair Tradings report on penalty charges. The Defendant continues to maintain that these charges are a legitimate cost for a service, yet also continues to refuse full disclosure of its actual costs in relation to the Claimants contractual breaches. The facts relevant to the Claimants right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without accountability to its customers, and to have consciously concealed the true nature of these penalty charges. This conduct further reinforces the Claimants belief that the Limitations Act would permit the inclusion of penalty charges from six years ago and older on the basis that the Defendant concealed from the Claimant the true nature of these charges. The Defendant is in a privileged position to have direct means of withdrawing monies from the Claimants bank Account; the Claimant is entitled to know whether the charges debited represent a justifiable business cost, or whether they are in fact penalties for contractual breaches.

(b) In the alternative to 15(a), the Claimant seeks permission to proceed with the claim under s.32(1)(c) Limitation Act 1980 on the grounds that the payment of these penalty charges were conceded on the mistaken belief that the charges did not amount to penalties Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349- and that the Claimant could not reasonably have discovered such mistakes before the publication of the Office of Fair Tradings report of April 2006

[Happyolddog]

Re: HALIFAX 18 year claim

I have a Cardcash account that commenced in 1990 and ended in 2002. Unfortunately it makes the whole claim over 6 years old. I am going to try and make a claim and have done the spreadie with various options on CCI it is extremely large. But before I send the letters to Halifax I wondered if anyone has the T&C's for 1990, a tall order I know, but someone may just be sitting on one or know how to obtain one.

I did ask Halifax in my SAR for the T&C's but this fell on deaf ears.

Also, if anyone has any ideas on the Limitation Act!

Thanks
Dsxx

Hi Ds,
I'm in pretty much the same position, I have sent my request for statements using the SAR's these fell on deaf ears even after I phoned them on many occasions. I am waiting now for the outcome of the OFT case and then I will go for it.

Best wishes,
Hod..Liam...

Thanks Celestine, Tuttsi and others for info in your posts, maybe we can log all of these as backing for future claiments and make a water tight package for future claims.

[TUTTSI]

Re: HALIFAX 18 year claim

Thanks Celestine ever so much for this info on the Limitations part of my claim. I must ask did you also use Contractual Compouned Interest with your claim and how many years pre- 6 years did your claim go back.

I will have a read.

DSxx

For arguing the Limitations Act, I used this paragraph in my POC, which resulted in a successful settlement of all pre 6 year charges.

16. (a) The Claimant seeks permission to include 49 penalty charges debited from the Account by the Defendant between 25/11/1999 and 19/02/2001, under s.32 (1) (b) Limitation Act 1980, on the grounds that the Claimant could not reasonably have discovered the Defendants concealment of the true nature of these charges before the publication in April 2006 of the Office of Fair Tradings report on penalty charges. The Defendant continues to maintain that these charges are a legitimate cost for a service, yet also continues to refuse full disclosure of its actual costs in relation to the Claimants contractual breaches. The facts relevant to the Claimants right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without accountability to its customers, and to have consciously concealed the true nature of these penalty charges. This conduct further reinforces the Claimants belief that the Limitations Act would permit the inclusion of penalty charges from six years ago and older on the basis that the Defendant concealed from the Claimant the true nature of these charges. The Defendant is in a privileged position to have direct means of withdrawing monies from the Claimants bank Account; the Claimant is entitled to know whether the charges debited represent a justifiable business cost, or whether they are in fact penalties for contractual breaches.

(b) In the alternative to 15(a), the Claimant seeks permission to proceed with the claim under s.32(1)(c) Limitation Act 1980 on the grounds that the payment of these penalty charges were conceded on the mistaken belief that the charges did not amount to penalties Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349- and that the Claimant could not reasonably have discovered such mistakes before the publication of the Office of Fair Tradings report of April 2006