Santander Dishonest Reps County Court not appropriate Forum

[Red H]

In 2003 I opened a current account at the Tonbridge Branch of Santander.

On Saturday 13 Nov 2012, I attended the Tonbridge branch of Santander, and handed them a letter/ payment instruction with all the destination banking and other details for my son then studying in Kawasaki Japan.

The instruction was transfer money immediately to him at his account. They tried that afternoon for some 2 hours to transfer the money, later giving the oral explanation that they had failed to use XX at the end of the IBAN number as required for branches of a bank in Japan.

This explanation is Tosh, as I am now informed Japan does not use IBAN, many countries do, but many don’t. There are lots of calls, emails, and meeting, and on the following Friday they deducted from my account the £24 transfer fee and the amount.

The bank is required to write to the customer in the event they fail to carry out a customer written payment instruction. Then bank should have written explaining why they failed to transfer to the money on Saturday, and each of the other days. They failed to do so.

After deducting the money from my account, they failed to write informing me of the rate of exchange to yen, the destination account, the date such transfer took place, how many yen did they transfer and when would he get value.

Earlier transfers through Barclays had produced this kind of information. Owing to rapid changes in Japan at that period I have no idea if the money was in fact received, and Santander refuse to answer my letters seeking evidence of the transfer.

I issue proceedings against Santander quoting BCOBS.

Santander in their defence say when we failed to make the transfer, you have no loss as you still have the money, and if we did transfer the money were complying with your instructions. As to the time taken, we can take as long as we like.

I was not surprised or perturbed to receive an application to strike out the claim. At the hearing for striking out, the Counsel for Santander say that while there is a banking conduct code of practice, (BCOBS) the remedies for breaches are dealt with by the Financial Services Ombudsman, the code derives from criminal law.

She then explained to the district judge on at least 3 occasions BCOBS that the customer remedies for BCOBS are to complain to the Financial Ombudsman, there are no rights whatsoever to refer a complain to The County Court, and it was misconceived to think that the County Court was the forum for such disputes.

With the result that the district judge struck out the action with costs on an indemnity basis. The claim sought merely for £500 for breach of BCOBS, and their cost of £2,000 seemed excessive, but in particular the arguments of counsel suitably entirely false.

I not sure my remedies be grateful for any advice

[R0b]

Re: Santander Dishonest Reps County Court not appropriate Forum

I'm not familiar with BCOBS but it might sound like that the judge was wrong and so was Counsel.

Schedule 5 BCOBS allows an action by a private individual see here -> https://www.handbook.fca.org.uk/hand...COBS/Sch/5.pdf

s.138D by the way refers to FSMA, what was counsel's evidence that the case must go to the ombudsman and there is no recourse?

What date was the strike out, did you seek permission to appeal?

[Red H]

Re: Santander Dishonest Reps County Court not appropriate Forum

I'm not familiar with BCOBS but it might sound like that the judge was wrong and so was Counsel.

Schedule 5 BCOBS allows an action by a private individual see here -> https://www.handbook.fca.org.uk/hand...COBS/Sch/5.pdf

s.138D by the way refers to FSMA, what was counsel's evidence that the case must go to the ombudsman and there is no recourse?

What date was the strike out, did you seek permission to appeal?

Thank you for your email. You mention you are not familiar with BCOBS Schedule 5. Well who is, certainly not a County Court District Judge, he had not heard BCOBS, which I should have referred to as Banking Conduct of Business Sourcebook, although I may have said the compliance with its terms was mandatory.

With case law the DJ may have had a different view, but I could find no case law or supporting write-ups, clarifying the banks wide obligation to is its customer, and forum..

The reality is that a DJ is obliged to accept the arguments of Counsel (alao an officer of the Court) even where he has suspicions of being misled by Counsel.
As to evidence, the DJ accepted Counsel's oral representations that the forum for a customers complaints against a bank under breaches of BCOBS is the ombudsman, and if there are further remedies that the forum is not the County Court. I did not seek permission to appeal to the striking out which was the 18th of May,

If BCOBS Schedule 5 allows a private action by the individual, my experience confirms it is so badly written as to be unhelpful. My current idea is to contact my MP, assuch rules should not be impossible to read, which in excessively tortuous language, perhaps he might get clarification from the relevant Government Department, as to what it did/does mean.

[R0b]

Re: Santander Dishonest Reps County Court not appropriate Forum

Thank you for your email. You mention you are not familiar with BCOBS Schedule 5. Well who is, certainly not a County Court District Judge, he had not heard BCOBS, which I should have referred to as Banking Conduct of Business Sourcebook, although I may have said the compliance with its terms was mandatory.

With case law the DJ may have had a different view, but I could find no case law or supporting write-ups, clarifying the banks wide obligation to is its customer, and forum..

The reality is that a DJ is obliged to accept the arguments of Counsel (alao an officer of the Court) even where he has suspicions of being misled by Counsel.
As to evidence, the DJ accepted Counsel's oral representations that the forum for a customers complaints against a bank under breaches of BCOBS is the ombudsman, and if there are further remedies that the forum is not the County Court. I did not seek permission to appeal to the striking out which was the 18th of May,

If BCOBS Schedule 5 allows a private action by the individual, my experience confirms it is so badly written as to be unhelpful. My current idea is to contact my MP, assuch rules should not be impossible to read, which in excessively tortuous language, perhaps he might get clarification from the relevant Government Department, as to what it did/does mean.

I think Schedule 5 is quite clear as to your right of a private action. I agree you should have said the full title of BCOBS and not the abbreviation.

Had you appealed, I think you would have succeeded as it is explicitly stated in Schedule 5 and FSM, not sure how Counsel would have got around that.

I am not saying you had not done this but perhaps next time before taking a claim to court, you need to do extensive research and make sure you have all the documents with you to present. Its not good enough to just say that BCOBS allows me to bring a claim through the courts because as you have found out, it might not go your way.

[Red H]

Re: Santander Dishonest Reps County Court not appropriate Forum

The defence was simple, that defaults of BCOBS could not be pursued ihn the County Court…..

The District Judge is entitled to believe Counsel, if Counsel is a reckless and misleads his it becomes difficult for the lay Claimant but benefits the defendant bank, who have made a large number of errors on our accounts, and would like to shut me up, to reduce or stop the other claims.

In retrospect, I could have succeeded with some suitable example of BCOBS in a standard law book, eg Commercial Law by Roy Goode or Ellinger on Banking Law, clarifying that the layperson does have a remedy when there were breaches of BCOBS and that the forum to assess these damages is the County Court. It is also unclear if the damages automatically flow from the breach, which I think they did. The other way round this is appropriate draft pleading within a book, eg Bullen and Leake on Pleadings.

There is a failure by the FSA, and FSO to explain in simple terms the forum the customer can take grievances: the ombudsman, or to the County Court. These options should be stated in clear unambiguous terms.

Writing about the same problem in the 2011 edition of Ellinger Modern Banking Law 5th edition , Professor Ellinger writes:

This patchwork of regulation (including BCOBS and the Consumer Credit Act 1974, and the Lending Code) not to mention the complications caused by the piecemeal amendments to existing legislation, in particular FSMA 2000 (see section 4) and the Consumer Credit Act 1974 see section 5, . . . . has left the retail banking regulatory landscape difficult to navigate both by banks and their customers.

It seems my MP is currently seeking clairfication from the head of the FCA

[EXC]

Re: Santander Dishonest Reps County Court not appropriate Forum

It's the BCOBs 'principles' that are not actionable by a private individual. There's a thread discussing it http://www.legalbeagles.info/forums/...ulations/page2