BCOB Regulations

[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

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

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

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!

[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

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 is there a right to take legal action under BCOBS 5.1.1. R which is a regulation:

"A firm must provide a service in relation to a retail banking service
which is prompt, efficient and fair to a banking customer and which
has regard to any communications or financial promotion made by the
firm to the banking customer from time to time."

[EXC]

Re: BCOB Regulations

So is there a right to take legal action under BCOBS 5.1.1. R which is a regulation:

"A firm must provide a service in relation to a retail banking service
which is prompt, efficient and fair to a banking customer and which
has regard to any communications or financial promotion made by the
firm to the banking customer from time to time."

Yes that is an actionable regulation but the problem is that BCOBs is very limited in it's scope and only applies to certain banking activity ie deposit taking and payment services.

The Banking Conduct Regime

BCOBs doesn't apply to the provision of credit, overdrafts or any debit situation and therefore is of no assistance to cases of hardship I'm afraid.

[berniel]

Re: BCOB Regulations

Please be gentle first post.
Trying to get an understanding on this, there seems to be disagreement between here and elsewhere. I can understand most of what is being said (I think).
It has been suggested that although maybe not directly actionable, a breach of the BCOBs could be used to support an unfairness claim under the CCA. Is this possible?
Bernie

[EXC]

Re: BCOB Regulations

Please be gentle first post.
Trying to get an understanding on this, there seems to be disagreement between here and elsewhere. I can understand most of what is being said (I think).
It has been suggested that although maybe not directly actionable, a breach of the BCOBs could be used to support an unfairness claim under the CCA. Is this possible?
Bernie

I can't see it myself. BCOBs has no application to loans or any credit related activity and so isn't capable of supporting any regulations that do.

[Mybankhatesme11]

Re: BCOB Regulations

Morning all,

Whilst it appears that this is the case, I believe that it may cover other institutions including sub-prime lenders by virtue of the following:

Taken from the BCOB Regulations:

Annex B
Amendments to the Principles for Businesses (PRIN)
In this Annex, underlining indicates new text and striking through indicates deleted text.
Accepting deposits and issuing electronic money
1.1.3 G The Principles apply with respect to regulated activities generally, but, in
applying the Principles with respect to accepting deposits and issuing
electronic money the FSA will proceed only in a prudential context. That is to
say, in this context, the FSA would not expect to exercise the powers brought
into play by a contravention of a Principle unless the contravention amounted
to a serious or persistent violation which had implications for confidence in
the financial system, or for the fitness and propriety of the firm or for the
adequacy of the firm’s financial resources.
…
3.2.1 R PRIN applies with respect to the carrying on of:
(1) regulated activities;
(2) activities that constitute dealing in investments as principal,
disregarding the exclusion in article 15 of the Regulated Activities
Order (Absence of holding out etc); and
(3) ancillary activities in relation to designated investment business,
home finance activity, and insurance mediation activity and
accepting deposits.

Here are some examples of unfair treatment:

The FSA Conduct of Business Sourcebook rules make it illegal for your bank or your credit card issuer or your lender to treat you unfairly.

Banking:Conduct of Business Regs - (BCOB or BCOBS) gives you the right to sue your bank in the county court in respect of unfair treatment received in connection with the provision of retail current account services.

Unfairness in connection with the provision of credit card services or a loan is a breach of an implied term in your contract and you can sue for breach of contract


If you sue your bank for breaking the law under BCOBS, you are suing them for Breach of Statutory Duty.
If you sue your bank for breaking the law in respect of unfairness in a credit card or loan contract, you are suing them for breach of contract.

Here are some examples of unfair treatment.

Some of these are actually identified in the FSA guide or the BBA guide.

However, as has been pointed out elsewhere, these guides are rather restricted in their treatment of BCOB and are limited in their description of unfair scenarios.

You should check out BCOB rule 5.1.1 which creates a general duty to treat you fairly.

The list below includes common complaints on this forum which think would probably be a breach of the BCOB rules.
You can probably come up with more examples.

It should be noted that banks cannot act illegally either by treating you unfairly directly - or through their agents.


In no particular order:-
Refusing to discuss financial difficulties and to suggest positive solutions
Unexplained peremptory closure of accounts - the longer the account has been held, the greater the requirement of an explanation and of tolerance to difficulties
Unexplained peremptory withdrawal of overdraft facilities - once again, the length of time that the account or overdraft has been in place is highly relevant - especially in respect of small businesses
Refusal to accept reasonable repayment proposals on the evidence of an income expenditure schedule
Ignoring a letter of appropriation
Harassment of debtor on the phone
Charges on bounced DDs or cheques
Imposing an overdraft on a basic account
Charges on paid DDs or cheques
Treating bank-imposed charges as unauthorised - (RBS has already conceded as a "gesture of goodwill" on this BCOBS point)
Levying charges upon charges - (RBS has already conceded as a "gesture of goodwill" on this BCOBS point)
Failure to accept instructions not to make further payments on a credit card/debit card number
Refusal to cancel DD instruction
Refusal to offer basic bank account without good reason
Charging more than cost for duplicate bank statements - £5 fee is probably unfair
Failing to supply bank statements on accounts in difficulty where account fee is still paid
Reneging on an instalments agreement by, for instance, by beginning recovery measures directly or through an agent while the agreement is in place.
Insisting on payments being made only in some particular form such as by direct debit - and refusing to accept payments made by some other method, for instance Standing order.
Suing your bank in these circumstances is usually a relatively straightforward County Court action

If you really want to teach your bank a lesson that unfairness doesn't pay, then prove a breach of FSA regulations and then use that to challenge the fairness of the relationship under s.140A Consumer Credit Act. The effect of this could be to have the entire loan declared unenforceable.

I cannot advocate that people should avoid their legitimate debts, but on the other hand if it takes some debt avoidance to persuade the banks to start behaving themselves and to stop bullying their customers - then so be it.


Methinks more research is needed by yours truly....any comments anyone?

Best wishes to all:

Dougal

Hello dougal,

Based on the information you have provided on this post, the situation i am in is currently being broken by my bank on at least 75% of the rules of the code...How do i go about taking the bank to a court...The ombudsman is awaiting a adjudicator to be assigned to my case. My account i have with the bank has bridging loans restructured accounts handling fees being applied, and now that the bank itself is in receivership ,i have been taken to receivership? its not just me in this scenario, there are also other fellow Greek people living in england that are being forced to sell thier properties to raise capital for the bank? I am being told by the receiver who tells me i have no right to sell the properties because he has been appointed by the bank. he will sell the properties at auction? WHY AM I BEING PREVENTED MY RIGHT TO SELL THESE PROPERTIES TO GENERATE A GREATER RETURN ON THE LOAN THE BANK IS CALLING IN...if these properties go to auction they will go for the "best possible price" what is hte best possible price, what if the best price is 20k?? that would not be enough...

I need help here, my bank does not reply to any of my calls, none of the correspondence i ask is being provided...I am being cornered here. i am asking the bank to put the receiver on hold and relieve him of his duties so i can sell my properties independently and generate a greater return...THIS IS BEING IGNORED

WHERES THE JUSTICE

please advise if you have any idea on means of taking this bank (Bank of Cyprus) to court. They are situated in london...

Regards

[banksaretwats]

Re: BCOB Regulations

Hi,

Just wondering if it is possible to get the bank to cough up charges prior to Nov2009 or is that all sown up with the judgment of doom.

Has anyone had any luck getting the banks to explain their charges prior to the judgement. If they thought that the charges prior to Nov2009 were hunky dory, then why change them post judgement?

Cheers

[Dougal16T]

Re: BCOB Regulations

Hello dougal,

Based on the information you have provided on this post, the situation i am in is currently being broken by my bank on at least 75% of the rules of the code...How do i go about taking the bank to a court...The ombudsman is awaiting a adjudicator to be assigned to my case. My account i have with the bank has bridging loans restructured accounts handling fees being applied, and now that the bank itself is in receivership ,i have been taken to receivership? its not just me in this scenario, there are also other fellow Greek people living in england that are being forced to sell thier properties to raise capital for the bank? I am being told by the receiver who tells me i have no right to sell the properties because he has been appointed by the bank. he will sell the properties at auction? WHY AM I BEING PREVENTED MY RIGHT TO SELL THESE PROPERTIES TO GENERATE A GREATER RETURN ON THE LOAN THE BANK IS CALLING IN...if these properties go to auction they will go for the "best possible price" what is hte best possible price, what if the best price is 20k?? that would not be enough...

I need help here, my bank does not reply to any of my calls, none of the correspondence i ask is being provided...I am being cornered here. i am asking the bank to put the receiver on hold and relieve him of his duties so i can sell my properties independently and generate a greater return...THIS IS BEING IGNORED

WHERES THE JUSTICE

please advise if you have any idea on means of taking this bank (Bank of Cyprus) to court. They are situated in london...

Regards

Good morning,

My apoloigies for the delay, but I have made some enquiries.

It appears to be thus:

Whilst the Bank of Cyprus have offices in London,they are based in Cyprus, and it would seem that current UK laws do not therefore apply.

However, I would suggest contacting the OFT and see if they take the same view.

We need to start at this point and ask the OFT this question:

Does the Law in relation to Banking Insitutions, [in other words all Banks], apply to the Bank of Cyprus at their premises in the UK?

If not are they governed by any Legislation in the EU?

This question - "Do they form part of the EU?" Had the following response:

Yes, although Northern Cyprus (which is part of Turkey) is not.

I would suggest finding out EXACTLY where the Bank of Cyprus Head office is located as this will be the point on which all matters will turn if you proceed Court with this.

As a last question : You mention 'the Receiver', is this the Official Receiver? If so where did he get his instructions from? (UK or Cyprus - this is very important.)

Kind regards

Dougal

[leclerc]

Re: BCOB Regulations

BCOBS does not apply to overdrafts or unfair charges. The regulatory change put the OFT in charge in this relation. I hope no one on CAG is going to assume that this offers a new line for Unfair Charges cases because it does not.

Well, I wrote this one year ago and to date there has been one case, sited by CAG, that won by default so that one will be overturned and I know another user KennyH has brought that up OTR and has been told to go ahead and use BCOB's.
Kenny, if you are reading this then please please please do not attempt a BCOB argument. If BF wants to discuss the issue of BCOB's then I am happy to do so on Martin Lewis' forum. I am banned on his forum under the names Blunta, Meldrew, and Yourbank(I used a few names OTR). The reason I have said I would discuss this on MSE is that it is a forum that is effectively neutral to the wants of any moderator/site team editing posts and the debate would be livelier(since there are those on MSE who will be more eloquent that I am). The choice is his but if he wants the debate then PM me and I will start a thread on MSE relating to BCOBS and reclaiming(having looked at MSE there is already the debate on this back a few months ago: http://forums.moneysavingexpert.com/...highlight=bcob )

If you follow the BF way then you will lose your case. Please be absolutely clear on the arguments that you will present.

Please read paragraph 2 here: http://www.bllaw.co.uk/sectors/finan...obs_rules.aspx

Please read also this from the FSA: http://www.fsa.gov.uk/consumerinform...uct_regulation
Last paragraph on the above.

And finally please read this link: http://fwarchive.ifslearning.ac.uk/f...Lunn/16987.cfm
In the section Underlaps and overlaps it states the same.

If BF wants to rebuff those three sources of information which have stated exactly my viewpoint a year ago then so be it but on his own site he has stated that there is only 1 single winner by default that will probably be overturned(and quite rightly so).

[jon1965]

Re: BCOB Regulations

When my OD with Santander went tits up I thought I would give the BCOBS letter a try on the "advice" of an extremely intelligent man (not) OTR. Well out of charges of over £500 they refunded £95 as a gesture of goodwill. When another one of my many profiles asked for evidence that BCOBS worked they sited my case. Ok so I know £95 is not to be sneezed at but I still owe them 1K so I would say it is utter ball cocks. They suggested they knew of 3 cases that had won zippy do

[EXC]

Re: BCOB Regulations

BCOBs does not cover any charges or indeed interest rates:

Q. Does BCOBS affect the level of interest rates or the fees that firms can charge their customers?

A. BCOBS does not contain rules on the level of prices. However, it does require firms to provide information to consumers on interest rates and charges

http://www.fsa.gov.uk/doing/regulated/banking/bcobs/q_a

And as such anyone attempting to rely on BCOBs to challenge the level of any fee or interest rate in contested proceedings will necessarily fail.