Re: VIP - Orfoster v Lloyds Bank Charges in Hardship BCOBS case - court 28/1
Principles are denoted with a 'G' (for Guidance) rather than an 'R' (for Rule) and in any case FSA principles are not actionable in a court of law by virtue of sec 150 (2) of FSMA I'm afraid.
It was a feature of one of the main grounds in the BBA v FSA Judicial Review:
7.The Claimant challenges the lawfulness of that Statement. The Policy Statement is said to be unlawful because it treats the Principles as giving rise to obligations owed by firms to customers, leading to compensation being payable for their breach, when those Principles are not actionable in law. The FSA says that the fact that breach of the Principles does not of itself give rise to a cause of action in court has no impact on their relevance as obligations, breach of which can lead to compensation [eg by FOS]
71.I do not find the Claimant's submissions persuasive, preferring instead those of the FSA and FOS. The statutory provision being construed is s150. S150(1) deals with contraventions of rules by making them actionable as breaches of statutory duty. "Actionable" means giving rise to a cause of action in a court of law. S150(2) removes that actionability. S150(2) does nothing else. "Actionable" in s150(1) simply does not mean "capable of giving rise to obligations or compensation". So s150 does not apply to the Principles. It does not alter their function in any other way. It leaves intact any other function or effect which a non-actionable rule might have. The clear words of the section are wholly inapt to prevent rules which are not actionable giving rise to obligations as between firms and customers.
http://www.bailii.org/ew/cases/EWHC/Admin/2011/999.html
Originally posted by Amethyst
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It was a feature of one of the main grounds in the BBA v FSA Judicial Review:
7.The Claimant challenges the lawfulness of that Statement. The Policy Statement is said to be unlawful because it treats the Principles as giving rise to obligations owed by firms to customers, leading to compensation being payable for their breach, when those Principles are not actionable in law. The FSA says that the fact that breach of the Principles does not of itself give rise to a cause of action in court has no impact on their relevance as obligations, breach of which can lead to compensation [eg by FOS]
71.I do not find the Claimant's submissions persuasive, preferring instead those of the FSA and FOS. The statutory provision being construed is s150. S150(1) deals with contraventions of rules by making them actionable as breaches of statutory duty. "Actionable" means giving rise to a cause of action in a court of law. S150(2) removes that actionability. S150(2) does nothing else. "Actionable" in s150(1) simply does not mean "capable of giving rise to obligations or compensation". So s150 does not apply to the Principles. It does not alter their function in any other way. It leaves intact any other function or effect which a non-actionable rule might have. The clear words of the section are wholly inapt to prevent rules which are not actionable giving rise to obligations as between firms and customers.
http://www.bailii.org/ew/cases/EWHC/Admin/2011/999.html
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