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Is UCTA 1977 the best option for my case?

Re: Is UCTA 1977 the best option for my case?

Postby tommydog35 » Thu Mar 22, 2018 2:32 pm

atticus wrote:
Can I ask - is there a reason that you left this (and the other account you mentioned) so long?

At one point I had many accounts at various places, and like to keep my options open when I am transacting online. I had forgotten that I had this account, and only remembered when someone asked to pay me for personal goods via this method. That's why I never closed any accounts that had been inactive for a period of time, as people would sometimes ask me out of the blue if I accepted XYZ payment method.

It genuinely never crossed my mind that a large financial institution would try and refuse my own funds. In fact i am disgusted what they have done. They even tried to use the Data Protection Act to cite the removal of all records of my account and the reason for fund "expiry" after a set period . I would like to see them use this Data Protection defence in court - I think it's utter B/S



atticus wrote:q2. That is what they may argue. If so you may need to defeat the clause to defeat the argument. NB the limitation period for bringing a contract claim is six years from the date on which the cause of action arose.



So which date is it more likely to be:

A) 2009 the date they say the contract was terminated due to the account not being used (this is outside the 6 year period)
B) 2015 from the date they say the funds "expired" (2015 is inside the 6 year period)
C) December 2017 - the date I first became aware that they would refuse to release my funds on the basis that they had "expired"


In respect of the above (A) is the only thing they can cite if they want to use a limitation period defence. But if they do this and the court accepts A, is it not feasible to make an argument under equity as pointed out by another user. Namely, at the point when the contract was terminated, they had a fiduciary duty to hold my funds for the beneficiary (myself) I re quote the limitation act 1980 and the opinion posted by another user:

"No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action [...] to recover from the trustee trust property[...]

If a condition of the terms of business include a provision that the funds are irrecoverable if certain conditions are met, I suggest that the provision is void as being repugnant to the essence of the arrangement."
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Re: Is UCTA 1977 the best option for my case?

Postby tommydog35 » Thu Mar 22, 2018 2:45 pm

dls wrote:Identify the company you are dealing with - exactly, and the juriscition from which they operate.

If (and a bif if) they are within the UK and operate under UK law, you may have a head start.
If they are based within the EU it would assist.


I confirm the company operates under UK and is a registered UK company. It is also governed by the financial conduct authority.


dls wrote:I would need to be convinced that a bank holds a deposited sum in trust. My understanding is that is simply a balance on an account - a debt in contract. A bank holds no particular asset - it admits a debt.


But at the point of termination of contract (12 months after non use - 2009) they are holding funds even though the contract has been terminated. So they must be holding them on trust? As even by their own admission they hold funds for the customer for a set period after the contract has been terminated (as I am outside this period that's where the problem arises). So how are they holding these funds if it's not by a trust if the contract has been terminated?
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Re: Is UCTA 1977 the best option for my case?

Postby atticus » Thu Mar 22, 2018 2:46 pm

You need to identify the cause of action; their case appears to be that the cause of action arose on termination of the account in 2009.I have not had (and do not wish) the pleasure of reading the full ts and cs.
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Re: Is UCTA 1977 the best option for my case?

Postby tommydog35 » Thu Mar 22, 2018 3:00 pm

atticus wrote:their case appears to be that the cause of action arose on termination of the account in 2009.


Yes that is correct. But I will argue the December 2017 date applies, as that is the date I first became aware of this issue. I had no idea that the contract had been terminated and the funds had "expired" How can I possibly take action under contract if I am not aware that a contract has been breached? surely I can only take action as soon as this matter comes to my attention? What other argument can I possibly make in respect to this?

An alternative view is that if the 2009 date is accepted, can't I rely on the law of equity to get round the limitation? My point is that upon termination of the contract (12 months after non use - 2009) they are holding funds even though the contract has been terminated. So they must at some point have been holding funds on trust? As even by their own admission they hold funds for the customer for a set period after the contract has been terminated (as I am outside this period that's where the problem arises).
My point is this set period is arbitrary and is not compatible with principles of equity and fairness. Or have I misunderstood key legal principles?
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Re: Is UCTA 1977 the best option for my case?

Postby atticus » Thu Mar 22, 2018 3:28 pm

Are you going to tell me - or rather the court - that when you set up this account you did not agree a set of terms and conditions?
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Re: Is UCTA 1977 the best option for my case?

Postby tommydog35 » Thu Mar 22, 2018 4:48 pm

Even if I agreed to a set of terms and conditions, it does not mean every term and condition was legally binding. Otherwise legislation such as UCTA would be pointless. I agreed to open the account following a pushy sales pitch, where none of this was ever explained to me. I may have made a mistake with opening the account, but should I really have to pay £1000 for my mistake? what about if 10 million was in the account - is it equitable to just grab peoples money? How does the consumer benefit from this?A prominent ethos of the banking code is clear communication and putting the customer at the heard of business. Having read the banking code I am not sure their conduct is compatible.
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Re: Is UCTA 1977 the best option for my case?

Postby atticus » Thu Mar 22, 2018 5:26 pm

I suggest that you bring your claim and thrash it out in court. I can help you no further.

As this case is likely to be allocated to the Small Claims Track, Small Claims costs rules will apply.
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Re: Is UCTA 1977 the best option for my case?

Postby dls » Thu Mar 22, 2018 9:33 pm

Every contract has a simple bit of law behind it - if you do not call for payment within six years you lose your right to collect it. This is the general law. Are you saying that the Unfair Contract Terms Act defeats limitation law - that limitation law is unfair?

I say again, that the balance on your account is not them holding any money in trust on your behalf, but them having a debt to you.

They do not hold anything on trust for you. Where might this thing be?

Irrespective of their T&Cs yo have to find some additional reason why limitation does not apply. A simple satement made by them of the balance cn be enough.

There may well be such a reason in banking law, but you must find it and then see whether their terms can contradict it.
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Re: Is UCTA 1977 the best option for my case?

Postby Jinxer » Thu Mar 22, 2018 11:15 pm

A company called xxxx did this to me way back in 2000 maybe 2001 but I only had 25 quid in the account, but I was still gutted when it happened and it was for the exact same reason because I hadn't accessed the account for 12 months. Not of any help to you but I just wanted to share.

(Edited - no names - dls)
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Re: Is UCTA 1977 the best option for my case?

Postby tommydog35 » Fri Mar 23, 2018 8:08 am

Jinxer wrote:A company called xxx did this to me way back in 2000 maybe 2001 but I only had 25 quid in the account, but I was still gutted when it happened and it was for the exact same reason because I hadn't accessed the account for 12 months. Not of any help to you but I just wanted to share.


Did you not complain to the banking ombudsman as £25 falls within their remit?
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