OFT - disclosure under Enterprise Act

[Halifax71]

Hi – bit of a long shot this. As one of the many customers affected by Barclays FirstPlus’ decision to fleece its customers of every penny possible I have been attempting to use the Regulators to judge on the fairness of the loans’ Terms and Conditions under the Unfair Terms in Consumer Contract Regulations 1999 and the OFT’s Guidance on second charge lending.

After 9 months I am at the stage whereby:

The Financial Ombudsman Services say they won’t consider the UTCCR or OFT Guidance on Secured Lending.
The FSA say that responsibility for UTCCR complaints on secured loans is the responsibility of the OFT as per their recent concordat.
The OFT say “thanks, concerns noted – individual complaints need to be referred to the FOS.

So, as none of the regulators will take responsibility, I need to take civil action. I have asked the Parliamentary and Health Service Ombudsman to confirm this is the only avenue left but in the meantime I want to see what the OFT have on Barclays FirstPlus.

They are hiding behind the Enterprise Act. Specifically they say “Section 237 of Part 9 of the Enterprise Act 2002 places strict limits on what we can disclose to the public and precludes us from disclosing the details of any action that is being contemplated or is underway”.

Now I’ve done some digging and come across an addition to the EA

241A Civil proceedings (1) A public authority which holds prescribed information to which section 237 applies may disclose that information to any person—
(a) for the purposes of, or in connection with, prescribed civil proceedings (including prospective proceedings) in the United Kingdom or elsewhere, or
(b) for the purposes of obtaining legal advice in relation to such proceedings, or
(c) otherwise for the purposes of establishing, enforcing or defending legal rights that are or may be the subject of such proceedings.

Anyhow, sorry for the long intro, but has anyone ever sought disclosure from a public body using this?

I do believe that that there has been a significant amount of discussion between the OFT / FOS and Barclays FirstPlus, hence my interest in obtaining it.

Thanks in advance.

[Amethyst]

Re: OFT - disclosure under Enterprise Act

http://www.berr.gov.uk/files/file41381.pdf

Section 2

The statutory instrument excludes from possible disclosure information which
comes to the OFT under the Enterprise Act 2002 section 5(1) (acquisition of
information) in connection with their work under sections: 6 (provision of
information to the public), 7 (provision of information and advice to Ministers),
8 (promoting good consumer practice), 11 (super complaints), 92 (duty of
OFT to monitor orders and undertakings relating to market investigations),
162 (duty to monitor certain orders and undertakings) and Part 6 (cartel
offence) and paragraphs 14 to 18 (monopoly references, enforcement
undertakings and orders) of Schedule 24.

if that helps at all.

If it also helps, and as you already know lol, the OFT are currently investigating FirstPlus so I completely expect everything will be covered by the exemptions above at least at the moment.

SI is http://www.opsi.gov.uk/si/si2007/pdf...0072193_en.pdf

[Halifax71]

Re: OFT - disclosure under Enterprise Act

Thanks Amethyst.

So, it's basically a no then.

I do not hold your confidence that the OFT are actually doing anything. They are in my opinion wondering how on earth they can get out of this mess.

Most BFP complainers know that should rates be reapplied to their original FHBR variances under order of the OFT that BFP will be bankrupt.

I for one am not prepared to wait. It's taken the OFT 9 months to send me a reply. And that reply basically says, we maybe looking into this, but we cannot tell you.

It's basically a disgrace that the regulators are allowing this. To date they have increased their monetary profit by 156% on my loan. Why? Because they are having to repay all the missold PPI money are are no longer receiving commission income on that PPI.

Thanks again.

[Amethyst]

Re: OFT - disclosure under Enterprise Act

Yes it is frustrating and doesnt give you any confidence in the system.

Can you not look at taking the issue up yourselves ? theres a number of people with the same issue with FP isnt there - some type of group litigation ? I dont know the ins and outs just wondering why you want to go through the regulators first if you feel theres a strong enough case. Court action could push the regulators into acting too ?

[Halifax71]

Re: OFT - disclosure under Enterprise Act

Be assured there's plenty of further action being prepared.

It's going to be a good day when we finally bring this disgrace of a company to task.

Thanks again for your input

[Amethyst]

Re: OFT - disclosure under Enterprise Act

Good I thought there was. PLEASE keep us informed in any small way you can. And if you want any help with anything just yell.

[Halifax71]

Re: OFT - disclosure under Enterprise Act

Got a reply to my request for disclosure: - Can anyone think of an alternate course of action to get them to disclose? Thanks in advance.

---

I write further to my colleagues email of 21 January which was sent in response to your application for information under section 241A of the Enterprise Act 2002 (section 241A). Please accept my apologies for delay in responding to you.

In your email of 29 December, you state:

"As it appears my only recourse is to take legal action against Barclays First Plus I am now preparing my case prior to submission. As part of that process I would appreciate copies of all paperwork you hold pertaining to investigations / enquiries / complaints in respect of Barclays First Plus, both in respect of my complaint and any other investigations / enquiries / complaints that you have been party to.
You state in the attached response that you are restricted under Section 237 of Part 9 of the Enterprise Act 2002 as to what you can disclose to the public. I have attached for convenience a copy of the “Guidance Note on Information Disclosure to consumers and Intellectual Property Rights Holders for civil proceedings” in respect of Part 9 of the Enterprise Act.
I therefore request disclosure, under section 241a, of all relevant information that may assist my proposed civil action with regard to the fairness of the terms of my loan."

Response to your application under section 241A of the Enterprise Act 2002

It may be prudent if I begin by explaining that section 241A is not a request making power for consumers to request disclosure of information. It merely provides a gateway for us to disclose information if we consider that is appropriate to do in the light of the general prohibition on disclosure contained within section 244 of the Enterprise Act 2002 (section 244). Section 241A is therefore a discretionary rather than mandatory provision.

We can provide you with any information related to your complaint as this aspect can be treated as a subject access request under section 7 of the Data Protection Act 1998. However, the release of information that we may hold concerning Barclays First Plus which is not related to you and which we have received in the course of any investigations or enquiries undertaken by the OFT is still subject to the restriction in s. 237(1) and the tests within section 244 and may also amount to personal data. In particular, we have to consider whether the disclosure would not be contrary to the public interest, does not disclose commercial information which relates to the business of an undertaking which could significantly harm that undertaking's legitimate interests and that the disclosure of such information is necessary. Nothing in the foregoing should be taken as any indication of whether or not the OFT holds such information.

With this in mind, the fact that you is contemplating or bringing proceedings is not sufficient to meet the tests under section 244. Therefore, we would need to be satisfied that information, other than that which relates to you and your complaints, is relevant to the civil proceedings you are contemplating in order to be able to disclose information further to section 241A taking into account the matters set out in section 244 and the requirements of the DPA 1998. We would need independent confirmation, such as a court order, that the information is relevant and necessary to your action against Barclays First Plus.

------

Absolute Chicken and Egg response. Get a court order to disclose information that might be relevent to civil action.

I've sent a reply back asking them to reconsider. Shortened response below.

-------
I do not understand why my intention to take civil action does not meet the tests under section 244. I have been clear about the reasoning behind the request and I have stated that any information disclosed will only be used for the purpose of the proposed civil action.

I do not understand what additional satisfaction you need. The guidance clearly states that “Section 241A EA02 enables public authorities in certain circumstances to disclose information where the information is to be used for civil proceedings or otherwise for the purposes of establishing, enforcing or defending legal rights. This will include prospective proceedings, taking legal advice in respect of proceedings and alternative ways of establishing, enforcing or defending legal rights such as Alternative Dispute Resolution schemes.”

Can I also point you to the highlighted area of the guidance which states “Although the new disclosure gateway is discretionary, a public authority must exercise the discretion in good faith and for the purposes of the legislation, which is to help consumers and IP rights holders to obtain their legal rights. The Act and the Order lay down detailed criteria for making disclosure (in particular in section 244). Where the criteria are satisfied a public authority would be expected to disclose unless there was a legally proper reason to justify nondisclosure. Although the authority will need to satisfy itself that the grounds for the request are genuine it is not required to make a judgement about the likelihood of success for the consumer or IP rights holder.”

It appears to me that you are making a judgement as to the success of my proposed action. How am I supposed to ascertain the relevance of information you may or may not hold unless you disclose it to me?

I am getting extremely frustrated with the barriers being put in place here. I am having to take this action because none of the consumer regulators will take responsibility. I would appreciate your reconsideration of this based on the need for me to ascertain the relevance of the information you may or may not hold.

I appreciate that this maybe a difficult one to decide upon as if you are investigating Barclays FirstPlus then you are within your rights not to disclose but similarly you cannot tell me that you are investigating. So, how do you answer my question? I don’t know but I want one, and I am not prepared to accept the initial refusal.

If you do intend to continue this stance, i.e. suggesting obtaining a court order, could you advise whether an MP letter of support would suffice? I understand my MP is in the process of seeking an update on your actions.

[ReddhLegend]

Re: OFT - disclosure under Enterprise Act

Halifax - hi there, found my way here!!!

Am looking at the various threads.

The Supercomplaint is ready to be printed now and you know as well as I do, they can keep us at arms length for a short period of time but that is all. My guess is that there is negotiation afoot behind the scenes as the analysis we have all done shows FP could not revert back to the previous tracking of rates as it would leave them insolvent. This in itself underlines that their behaviour was done in direct breach of UTCCR.

WOuld lvoe you to get the requested disclosure thoughI doubt they will volunteer anything without a battle!

[Halifax71]

Re: OFT - disclosure under Enterprise Act

This is the latest reply from the OFT :tinysmile_hmm_t2: I referred their continual refusal to disclose to the General Counsel. The first draft of my response is copied below also. Thoughts on the content would be appreciated before I send it off.

Disclosure Request Enterprise Act 2002

Thank you for your email of 19th February 2010. I have treated this as a request for me to review OFT’s responses to your disclosure request of 29th December 2009.

I have formed the initial view that I need more information from you to enable me to decide whether you are entitled to some of the information you seek (if such information is held by the OFT). At this stage, I am not therefore in a position to consider any concerns you may have about how your requests have been handled by the OFT.

You have explained that you are contemplating civil proceedings in relation to the terms of your loan agreement with Barclays Firstplus. The categories of claim you are considering bringing are: breaches of the Unfair Terms in Consumer Contract Regulations 1999, breaches of the OFT Guidance on Second Charge Lending, promissory estoppel and the unfair relationship provision of the Consumer Credit Act 1974. Your original disclosure request of 29 December asked for:

“copies of all paperwork you hold pertaining to investigations / enquiries / complaints in respect of Barclays First Plus, both in respect of my complaint and any other investigations / enquiries / complaints that you have been party to.”

And

“all relevant information that may assist my proposed civil action with regard to the fairness of the terms of my loan”

This is a broad request and as explained previously it is not easy to identify how this material may be relevant to your proposed claims. We need to know about this so that the OFT can be in a position lawfully to disclose any information to you under section 241a of the Enterprise Act 2002. As explained to you in our letter of 3 February, this is a discretionary provision providing the OFT a gateway to disclose information if we consider it appropriate to do so having weighed up the considerations in relation to confidentiality of information we receive during the course of our work.

I would therefore be grateful if you could provide us with some more information. First, please could you explain more precisely that nature of the claims you are considering making. Secondly, please explain how that material in the various categories you have sought is potentially relevant to your proposed claim. For example, if others have complained about the same terms as you, why would that be relevant to your claims? In doing so, you do not need to cover the information in respect of your complaint which the OFT has already agreed can be provided, see below. Thirdly, are you able to narrow the request at all to more specific types of material you say might be relevant?

As indicated in OFT’s letter of 3 February we can provide you with information relating to your own complaint concerning Barclays First Plus, as this would be treated as a Subject Access Request under section 7 of the Date Protection Act 1998. If you confirm that you would like OFT to provide this information, I will ensure that it is provided to you.

Yours sincerely

General Counsel.

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Below is the draft reply - specific enough? Any additions? Thanks in advance.

----------------

The OFT have consistently held the stance that “our remit does not permit us to provide consumers or businesses with advice about the fairness of individual terms or contracts or intervene on behalf of individual consumers in their disputes”.

Similarly the Financial Ombudsman Services – the supposed alternate resolution scheme in respect of individual complaints, are unable to consider the fairness of the contract term.

In response to your 3 questions: -

1. Please could you explain more precisely the nature of the claims you are considering making?

The contract term in question currently allows the lender to significantly increase the amount repayable, safe in the knowledge that I am tied into the contract. I cannot feasibly exit the contract without incurring significant early redemption penalties. Similarly, to exit the contract would require the purchase of a replacement loan, the price of which has significantly increased since my loans inception.

As mentioned in my complaints to the FOS & the OFT, one of the many extracts from the UTCCR is “Where the criteria of reasonableness are vague, or clearly meant to include the best commercial interests of the business, there will be scope for the supplier to change the bargain unfairly to the detriment of consumers, simply on the basis that he needs to protect his profit margins." The fact is they are not just protecting, they are significantly increasing.

This is a cleverly worded contract term, drafted with the sole intent to deceive. Barclays First Plus has already nearly tripled the variance to FHBR since loan inception. They can more than double the APR afforded me at loan inception with no corresponding increase in base rates / FHBR.

However, the FOS (the supposed route for consumer complaints) has said that the use of the terms to date is acceptable, and that the term in question is unambiguous. This is what I am currently up against. This is why I believe my only recourse is to take civil action.

I defy anyone to defend "variable APR" to mean that the variance can treble, simply in order to sustain the lenders business.

I defy anyone to defend the lenders ability to double the APR with no corresponding increase in the lenders costs.

There are numerous breaches of the UTCCR and the OFT Guide to Second Charge Lending which I have already detailed to the OFT & The FOS and I don’t intend to repeat them here. However as the FOS won’t consider your UTCCR guidance, and as the OFT won’t investigate my complaint, the breaches will need to be considered by a higher body, i.e. a court. This is where I need to have sight of the OFT’s considerations of the contract term.

• If the OFT have had internal deliberations over the ambiguity of the contract term, then what was the nature of those deliberations?

• Was there an outcome, i.e. have the OFT concluded that the term is unambiguous?

• Have Barclays FirstPlus been contacted for their input into any deliberations over the ambiguity of the contract term?

• If so, have Barclays FirstPlus deviated at all from their stance that “The terms and conditions of your Credit Agreement outline the circumstances in which we may re-price accounts.”

It is of primary importance that I am able to gather opinion from the regulators as to the ambiguity of the term. I have given my stance, summerised above, but if and when this is presented to the court if it can be shown that the term is in fact ambiguous then I would expect the court to use the rule of Contra proferentem, whereby an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against (the interests of) the party who imposed it.

Similarly, my argument that Barclays FirstPlus induced an expectation that rates would follow FHBR requires me to have sight of any deliberation the OFT may have had in this regard. The advertising literature / information supplied when the loan was sold to me, that I have provided to the FOS & the OFT, in my opinion inferred that the product on sale was “like a mortgage, your monthly payments may go up or down from time to time to reflect trends in interest rate movements.”

• Have the OFT given due consideration, or any consideration, to my opinion?

• Again, was there an outcome, i.e. was my expectation reasonable considering the information enclosed in the advertising literature and the information supplied at the point of sale?

• Again, have Barclays FirstPlus been approached for input into any consideration / deliberations?

As I have indicated it is my intention to argue that I relied on that expectation and I am now suffering disadvantage because that expectation is now not being met. Therefore under the doctrine of promissory estoppel: - "Barclays FirstPlus has by words OR conduct...[led]... me into believing that a certain state of facts exists, and I acted upon such belief to my prejudice. Barclays FirstPlus is not therefore permitted to...[say to]..me that a different state of facts existed at the same time" (per Lord Birkenhead in Maclaine v Gathy (1921).

In other words, they inferred that my APR was linked to FHBR. The contract term infers it; their advertising literature infers it; the historical use whilst FHBR was increasing provided further evidence of this state of affairs. Therefore, and it should be noted that included in the legal definition is the word “inferred”, i.e. there doesn’t have to be a “promise” or an actual “statement”, Barclays FirstPlus cannot say that “We regularly assess our interest rates but do not track any particular indices”.

With regard to the unfair relationship provision of the Consumer Credit Act 1974 once again I need to have sight of any discussions, deliberations and consideration both internally and those that the OFT have had with Barclays FirstPlus regarding: -

• any of the terms of the agreement or any related agreement;

• the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

• any other thing done (or not done) by, or on behalf of, the creditor (whether occurring before or after the making of the agreement or any related agreement).


2. Please explain how that material in the various categories you have sought is potentially relevant to your proposed claim?

I think I have shown above why information would be relevant. I am fully aware of the legal constraints pertaining to the use of any information provided in support of my civil action. Considering the constraints of the regulatory bodies in respect of my claims of unfairness I would hope that despite the discretionary nature of s241a that the underlying principles behind it, i.e. to help consumers and IP rights holders to obtain their legal rights, would provide you with sufficient grounds for disclosing information for this purpose.

3. Are you able to narrow the request at all to more specific types of material you say might be relevant?

It is difficult to narrow my request however I am fully appreciative of the fact that other customers complaints of a similar ilk to mine would be of little help to me. However I am making assumptions that there have actually been discussions, internally within the OFT, with the other regulators and more than likely with Barclays FirstPlus.

The nature, content and outcome of these discussions will be pertinent to my prospective arguments.

In an effort to answer your question, please provide copies of, or provide a summary covering the following: -

• Evidence of whether the OFT have had internal deliberations over the ambiguity of the contract term.
• Was there an outcome, i.e. have the OFT concluded that the term is unambiguous?
• Have Barclays FirstPlus been contacted for their input into any deliberations over the ambiguity of the contract term?
• If so, have Barclays FirstPlus deviated at all from their stance that “The terms and conditions of your Credit Agreement outline the circumstances in which we may re-price accounts.”
• Have the OFT given due consideration, or any consideration, to my opinion that Barclays FirstPlus induced an expectation that rates would follow FHBR?
• Again, was there an outcome, i.e. was my expectation reasonable considering the information enclosed in the advertising literature and the information supplied at the point of sale?
• Again, have Barclays FirstPlus been approached for input into any consideration / deliberations?
• Any discussions, deliberations and consideration both internally and those that the OFT have had with Barclays FirstPlus regarding, any of the terms of the agreement or any related agreement; the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement; any other thing done (or not done) by, or on behalf of, the creditor (whether occurring before or after the making of the agreement or any related agreement).

I look forward to a positive reply in due course.

[Halifax71]

Re: OFT - disclosure under Enterprise Act

Was just searching some old threads, would you believe I'm still waiting for an answer on this :Cry: