BCOB Regulations

[Dougal16T]

Re: BCOB Regulations

Good morning all,

I would tactfully suggest a read of this: (Taken from Wikipedia)

A tort, in common law jurisdictions, is a civil wrong.

Tort law deals with situations where a person's behaviour has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss.

Tort law is different to criminal law, which deals with situations where a person's actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.

Tort law is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict. In civil law, a delict is an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no contract between them.

Tort may be defined as a personal injury; or as "a civil action other than a breach of contract."

I believe that all acts which deprive someone of a right to sue for redress are in themselves unlawful, and a good Barrister will tell you so.

Hope this helps....!

Best wishes to all

Dougal

[whizzkid001]

Re: BCOB Regulations

I'm not sure that - aside from the Principles - BCOBs covers hardship or indeed any debit situation. It is covered by the Lending Code but that's not actionable.

Wonderful - so I've just turned down a final Ombudsman FOS decision in the expectation I could sue them at court instead. Now all I need is a sound legal basis to do so!

[EXC]

Re: BCOB Regulations

So can you clarify my situation - I had been suffering from acute hardship and my bank did absolutely nothing to assist in that. It actually made the situation worse. Given that BCOB charges a bank to treat customers fairly, and particular those who are in hardship, are you saying I have no right to sue them under BCOB at court? If not, is there no other legal basis on which to sue them?

I'm not sure that - aside from the Principles - BCOBs covers hardship or indeed any debit situation. It is covered by the Lending Code but that's not actionable.

[whizzkid001]

Re: BCOB Regulations

The barrister's right. The FSA's Principles are not actionable - they're just the overarching principles behind the COBs rules.

As a rule of thumb any provision in COB's that is denoted with a 'G' (for guidance) or 'EP' (for evidential provision) are not actionable by a private individual. Only those that are denoted with an 'R' (for rule) are actionable but with the specific exception of the Principles.

So can you clarify my situation - I had been suffering from acute hardship and my bank did absolutely nothing to assist in that. It actually made the situation worse. Given that BCOB charges a bank to treat customers fairly, and particular those who are in hardship, are you saying I have no right to sue them under BCOB at court? If not, is there no other legal basis on which to sue them?

[EXC]

Re: BCOB Regulations

Can someone clarify whether it is in fact possible to sue a bank under BCOB. Only I put this question to a barrister the other day and got this response back:

'As to a proposed claim in the County Courts: this is probably unattractive and unviable for a number of reasons, but I would just point out .... that the Principles of Business are not actionable by consumers. You refer to Principle 6, but the combined effect of PRIN 3.4.4 R and s.150 FSMA 2000 is to deprive consumers of a right of action under this provision.'

Am now thoroughly confused!

The barrister's right. The FSA's Principles are not actionable - they're just the overarching principles behind the COBs rules.

As a rule of thumb any provision in COB's that is denoted with a 'G' (for guidance) or 'EP' (for evidential provision) are not actionable by a private individual. Only those that are denoted with an 'R' (for rule) are actionable but with the specific exception of the Principles.

[whizzkid001]

Re: BCOB Regulations

PRIN 3.4.4 R states - 'A contravention of the rules in PRIN does not give rise to a right of action by a private person under section 150 of the Act (and each of those rules is specified under section 150(2) of the Act as a provision giving rise to no such right of action).'

Am very confused now as up to now led to believe that we could sue under s150.

[Dougal16T]

Re: BCOB Regulations

Evening all,

Is this not therefore a Restrictive Practice by the Banks....or am I just barking as usual??

See: Restrictive Practices Court Act 1976 ? and English Contract law...

Best wishes

Dougal

[whizzkid001]

Re: BCOB Regulations

Can someone clarify whether it is in fact possible to sue a bank under BCOB. Only I put this question to a barrister the other day and got this response back:

'As to a proposed claim in the County Courts: this is probably unattractive and unviable for a number of reasons, but I would just point out .... that the Principles of Business are not actionable by consumers. You refer to Principle 6, but the combined effect of PRIN 3.4.4 R and s.150 FSMA 2000 is to deprive consumers of a right of action under this provision.'

Am now thoroughly confused!

[EXC]

Re: BCOB Regulations

This was the quote i ws thinking of

"Not necessarily. There is another approach.
Your bank or credit card issuer or lender have a legal -statutory- duty to treat you fairly. This means that this duty is implied into your contract by law.
If you suffer unfair treatment from your credit card issuer or lender then they are probably acting in breach of contract. You can use them in the county court for Breach of Contract"

Peter

Yes that's it. Although they have a statutory duty (to abide by the Principles) towards the FSA, the statutory duty was removed in respect of causes of action by individuals.

Re: BCOB Regulations

This was the quote i ws thinking of

"Not necessarily. There is another approach.
Your bank or credit card issuer or lender have a legal -statutory- duty to treat you fairly. This means that this duty is implied into your contract by law.
If you suffer unfair treatment from your credit card issuer or lender then they are probably acting in breach of contract. You can use them in the county court for Breach of Contract"

Peter

Re: BCOB Regulations

I thought they were refering to just plain old breach of contract but using an implied term as the cause for action, is this not possible?

Peter

Sorry i see what you mean i thought they were talking about implied terms that are usually present in a contract.


Peter

Re: BCOB Regulations

ICOBs is but I'm not sure about DISP.

CAG are also asserting that the FSA's Principles - although not actionable by a private individual - can be used by way of them being implied in the contract terms but I don't think this could work. The FSA removed the right of action from the Principles by removing the statutory obligation banks have to them in respect of private individuals.

I thought they were refering to just plain old breach of contract but using an implied term as the cause for action, is this not possible?

Peter

[EXC]

Re: BCOB Regulations

Are either of these actionable by the individual?

Peter

ICOBs is but I'm not sure about DISP.

CAG are also asserting that the FSA's Principles - although not actionable by a private individual - can be used by way of them being implied in the contract terms but I don't think this could work. The FSA removed the right of action from the Principles by removing the statutory obligation banks have to them in respect of private individuals.

Re: BCOB Regulations

Yes that's what he was referring to but BCOBs only applies to the deposit taking activities of banks.

Mis-selling insurance and being tardy in refunding premiums doesn't go anywhere near BCOBs. This would fall to ICOBs or more likely DISP.

Are either of these actionable by the individual?

Peter

[EXC]

Re: BCOB Regulations

Hi
I see
So just to be clear. We are saying that although some of the requirements may be applicable to certain deposit takers, banks are not covered in these areas because other legislative bodies do the job and there cannot be an overlap.
Peter

Well to be clear they are applicable to all deposit takers (including credit unions to some extent) but only for deposit taking and payment service activities.

You're right to identify the regulatory overlap, or as Justice Ousley referred to it during the BBA Judicial Review, it's an occupied field.