The Limitation Act 1980 [The Act 1980]
The Consumer Protection Act 1987 [the Act 1987]
The complainant does not expect a court to be bridled by the concept of ‘limitation’ however, if a contrary intention features, the complainant can submit it would be ‘unfair’ and for the following reasons:
At section 9 of the Act 1980, it asserts the complainant has 6 years in which to make a claim from the date of purchase, however, at section 8 of the Act 1980 and when dealing with Speciality Contracts (which this is) the limitations period is extended to 12 years, and 3 years in respect to The Consumer Protection Act 1987 chapter 7.
ON THE LATTER SUBMISSION the complainants can aver, that Parliament subsequently did adopt a different approach than the 1980 Act and extended that period introducing a three-year limitation period which starts when the claimant first had “the knowledge required for bringing an action for damages in respect of the relevant damage”.
THE 1987 ACT DID convey “a right to bring an action under section 14 A (5)” should the contract be negligently ‘misrepresented’ which the complainant does proffer thus, the Act does allow claims to be advanced within three years of the earliest date the complainant had “the knowledge required” for bringing an action for damages.
That concept is also mirrored in any “breach of contract” claims.
SHOULD THE COURT BELIEVE THAT LIMITATION DOES FEATURE in its considerations, the complainant can assert in the case of John Hedley Haward & Ors v Fawcetts 8  UKHL 9 (a case concerning investments made in reliance upon the advice of a defendant accountant), the House of Lords considered the question of “what knowledge” is needed and to trigger the start of the 3-year period referred to in Section 14(A) (10) of the Act 1980.
They determined, the start of the 3 years was not when the claimant first knew that he might have a claim for damages, but rather earlier.
- The relevant date was when the claimant first knew enough to justify setting about investigating the possibility that the defendant’s advice was defective.
- Knowledge of the facts constituting the essence of the complaint of negligence was sufficient for time to run.
- The claimant did not need to have a detailed knowledge of how and why the defendant had failed in their duty of care.
- Further, time started to run when the claimants knew that the investments had been intrinsically unsound rather than when they knew that the investments had been lost.
IN THE MATTERS BEFORE a court, the complainants are not traders but consumers, not legally trained and face (as publicised) difficulties in obtaining reasonable advice concerning the lawfulness of convoluted and completed speciality timeshare contracts, accordingly and until definitive advice is delivered, reasoned knowledge was unavailable to them.
Furthermore, it would be ‘unfair’ to assert such.
Moreover, as the sale may have taken place in Spain and as that sale is a regulated sale, Spanish Statutory Implied Rights are reserved for the benefit of the complainant.
THE FRAUD ACT 2006
THE COMPLAINANTS CAN ASSERT: – The club is a ‘fraud’. They merely exist in the ether or are a delusion whereby the supplier and others covertly charge, trade and receive financial benefits they would not receive should the club be autonomously controlled or at an arm’s length. The club’s memberships and benefits are being sold, yet those clubs or its members receive little or no such benefit from the membership in the club, (which is sometimes dormant). Therefore, in some cases, the benefits are delusional and unfair.
Akin to a corporate ‘skiffle’ some resorts have constructed and use a combination of manufactured and homemade or improvised company instruments to present a membership into a beneficial investment club, and supporting lenders should have elected to adopt the position of “not in my backyard” however have adopted to embrace the models and support the product as one worthy of being financed. Many false representations of matters of fact can and have been delivered by words and by conduct and were delivered knowing the expectations were false and misleading. Concealment of what should have been disclosed is deceit and in some cases intentional, knowing that the individual will act upon the representations and to their LEGAL INJURY.
WHAT IS ALSO PERTINENT is (when dealing with Spanish Claims) Ley (sic law) 42/98 and 4/12 were subject to a legal challenge in Supreme Court in Spain and that challenge was only defeated on the 15th of January 2015 in the Maria Rosa -v- Anfi Sales SL) and (Eusebio & Antonieta -v- Banco Guipuzcoano SA) case.
ACCORDINGLY, COMPLAINANTS can submit that, it is inconceivable that the complainants would have; known enough to justify setting about investigating, known the Ley [sic law] or had detailed knowledge of the application of it in respect to the contracts they entered into.
Therefore, the complainants can assert the 6-year limitation rule as expressed in section 5 does not apply, that Section 14(A) (10) of the Act 1980 does, as it would have been inconceivable that the complainants would have known of the breach at least until at least the 15th of January 2015. To conclude otherwise would the complainants submit be ‘unfair’.
Last modified: 15th April 2020