Thanks for the advice

Does anyone have any experience regarding Clydesdale Bank and their Tailored Business Loan (TBL) We switched to a TBL in 2010 after being advised to do so by CB and they are now looking to charge us £26,000 early break costs as we are looking to sell the property.

UPDATE 18/05/08 Looks like this may be my last chance with the FOS before having to raise proceedings in the Court of Session:-x Dear Mr Adjudicator, Thank you for your letter dated 8th May 2008. In your letter you state that you do not believe that the FOS can investigate my complaint because the rules set out in the FSA handbook states; "The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: (2) more than: (a) six years after the event complained of; or (if later) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint; © unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received; unless: (3) in the view of the Ombudsman, the failure to comply with the time limits was as a result of exceptional circumstances; or (5) the respondent has not objected to the Ombudsman considering the complaint." You go on to state; “Charges were applied to your account between 1993 and 1999; it seems to me reasonable to assume you would have received statements for your account detailing the charges being applied. In my view, if you had been unhappy about the charges, you would appear to have been able to have raised your complaint at the time. I have not seen any evidence to suggest you raised your concerns before making your complaint to Bank of Scotland in 2007.” I can confirm that I did indeed receive, and I am still in possession of, statements from the bank throughout the times in question, and although I was unhappy with the charges as not only did it have a serious effect on my business at the time but also my health, I did not realise until February 2007 that the charges in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law. In these circumstances I believe that under rule 2.8.2R (2)(b) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint; I am well within the time limits of reasonably becoming aware that I had cause for complaint, as before that date I did not realise that I could challenge the charges as they did not reflect the true cost to Bank of Scotlandof my account going into unauthorised overdraft. I believe that the exceptional circumstances which may have prevented me from making my complaint are nothing to do with the time limits of when the actions occurred, but more about when I became aware that the charges were unlawful. I would draw your attention to the terms of the contract which the bank agreed to at the time that I opened my account. It is an implied term of that contract that the bank would conduct themselves lawfully and in a manner which complies with UK law. As I did not become aware until February 2007 that the bank were not conducting themselves in such a manner, I therefore believe that in contacting the bank in August for information about the accounts and complaining about the unfairness of the charges in November that I acted within the time constraints set out in the above ruling, as I can not see how I could have complained to the bank before becoming aware of the unfairness of the charges. I would hope that you will reconsider my request for the FOS to try and resolve this matter and that you can use your influence to get the bank to try and negotiate a settlement that is satisfactory to both parties as I would prefer this outcome than having to raise proceedings with the Court of Session in Edinburgh, which will prove costly and time consuming to both parties, but one which I am willing to pursue. If you need any further information I can be contacted on 0780 XXX XXXX and I look forward to your assistance in resolving this matter. Yours sincerely, AC 2007 Any other advice would be gratefully appreciated.

UPDATE 08/05/08 Reply from FOS Dear Mr AC2007 Your complaint about Bank of Scotland plc Thank you for your letter dated 29 April 2008. Your complaint has been passed to me for a further review. I appreciate your comments about legislation relating to time limits for commencing legal action. These may be relevant should you wish to start a legal action against Bank of Scotland to reclaim the charges it applied to your account in the period 1993 to 1999, but you would need to obtain appropriate legal advice on this matter. Our role is to resolve individual disputes between consumers and financial businesses, where consumers think they have lost out. We provide an informal alternative to the civil courts and, as my colleague explained in his letter dated 17 April 2008, we are bound by the rules under which we operate. The rules are set by the industry regulator, the Financial Services Authority (FSA) and are set out in the FSA Handbook. You can find the rules on the FSA website http://fsahandbook.info/FSA/html/handbook/DISP72. The rules are known as 'DISP' rules; D!SP rule 2.8.2R states "The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: (2) more than: (a) six years after the event complained of; or (if later) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint; © unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received; unless: (3) in the view of the Ombudsman, the failure to comply with the time limits was as a result of exceptional circumstances; or (5) the respondent has not objected to the Ombudsman considering the complaint." Charges were applied to your account between 1993 and 1999; it seems to me reasonable to assume you would have received statements for your account detailing the charges being applied. In my view, if you had been unhappy about the charges, you would appear to have been able to have raised your complaint at the time. I have not seen any evidence to suggest you raised your concerns before making your complaint to Bank of Scotland in 2007. Bank of Scotland has confirmed it objects to this service considering your complaint. The only remaining issue to consider is whether there are any exceptional circumstances which may have prevented you from making your complaint within the time limits set out above. As Mr Milns pointed out in his letter of 17 April 2008, the ombudsman would not usually consider you being unaware of the time limits as an exceptional circumstance. I am not persuaded that your reference to the interpretation of time limits is sufficient to be regarded as exceptional circumstances - in my opinion the time limits set out in the rules are clear. I have reviewed the additional information you have supplied but, even after taking it into account, I still consider it unlikely that more investigation would result in a different outcome. Accordingly, I must confirm my view that your complaint does not appear to be one we are able to consider. However, if you still feel that I have misunderstood or overlooked anything which would make a difference, please let me know by 22 May 2008 and my findings will be reviewed. But if I have not heard from you by then I will assume that you do not want us to take your complaint any further and will close my file accordingly. I would remind you that any rights you may have to take legal action against Bank of Scotland have not been affected by our consideration of your complaint. Yours sincerely Adjudicator This seems as though it is going to have to be settled in court:confused:

UPDATE 29/04/08 Reply to ombudsman. Dear Mr XXXX, Following on from your letter dated 17th April stating that you do not believe that you have the power to deal with the case because of time limits. You quote “This is because our rules say that, unless there are exceptional circumstances or if the bank does not object, we cannot consider a complaint which has been brought: - more than six years after the event complained of; or - (if later) more than three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he or she had cause for complaint. In your case the event complained of is the levying of bank charges between 1993 and 1999 and it is understood both accounts were closed subsequently. You first complained to Bank of Scotland in November 2007 and to us in January 2008. So, in regards to the charges incurred before 1999, it is apparent that you brought the complaint more than six years after the events which gave rise to the complaint” I believe after having discussed this with my solicitor, it is my understanding that under the current law found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation. A claim for breach of contract generally becomes enforceable when there is a concurrence of liability (i.e. the breach) and actual loss. The pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (e.g. where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge. As I did not know until the publicity last year regarding the charges then it can be assumed that I did not become aware of a breach until that time. Also having read part XVI of the Financial Services and Markets Act 2000, I can find no mention of time limits and given the grey areas with regards to the interpretation of said time limits, I would hope that this would mean that there are “exceptional circumstances” in this case and that the FOS can in fact continue to try and reach an amicable settlement to this case that is suitable to both parties without the need for a formal investigation. If you need any further information I can be contacted on 0780 XXX XXXX and I look forward to your assistance in resolving this matter. Yours sincerely, AC2007

UPDATE 24/04/08 I received the following letter today before the High Court announcement. 17 April 2008 Dear AC2007 Your complaint about Bank of Scotland I refer to our last letter of 14 February 2008 when colleagues advised that your complaint was being passed to a casework team for consideration of the issues raised. As you may be aware, the Office of Fair Trading commenced legal action against the banks in July 2007 to seek clarification of the legal position concerning the levy of default or 'penalty' charges on bank accounts. Consequently, at that time, we felt it inappropriate to progress such complaints until the underlying legal issues were resolved. However, more recently, the Financial Services Authority (FSA) undertook a review of the waiver it had provided to the banks concerning unauthorised overdraft charges complaints handling. At that time, the FSA decided that banks and building societies should, after all, continue to deal with complaints about default charges on business accounts. Accordingly, I am writing to let you know that I have now reviewed the file and considered your complaint. Having done so, however, I am afraid to say that it does not appear that we have power to deal with it. This is because our rules say that, unless there are exceptional circumstances or if the bank does not object, we cannot consider a complaint which has been brought: - more than six years after the event complained of; or - (if later) more than three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he or she had cause for complaint. In your case the event complained of is the levying of bank charges between 1993 and 1999 and it is understood both accounts were closed subsequently. You first complained to Bank of Scotland in November 2007 and to us in January 2008. So, in regards to the charges incurred before 1999, it is apparent that you brought the complaint more than six years after the events which gave rise to the complaint. It follows that the Financial Ombudsman Service is unable to consider your complaint regarding the charges, as it was made outside the relevant time limits. Whilst I am aware that there is an argument to say that with the test case being brought by the Office of Fair Trading (OFT) may result in the High Court finding that the banks have concealed the cost of their charges and that in these circumstances the statute of limitations regarding the six year time limit will no longer apply. However, regardless of any court finding, I regret to say that our rules still say that we cannot consider a complaint regarding events more than six years ago. This rule is not governed by any court finding or the statute of limitations, but by the Financial Services and Markets Act 2000, with which we are required to comply. I appreciate that my assessment is likely to come as a disappointment to you; I nevertheless hope that my explanation is helpful. You are entitled to a review of my assessment by an Ombudsman. However, in terms of the position with the time limits, an Ombudsman is unlikely to alter my view unless you are able to provide evidence that there were exceptional circumstances (simply being unaware of the deadlines is not usually considered an exceptional circumstance) as to why you did not bring your complaint earlier. If you require a review please write to me by 1 May 2008 outlining the reasons why. In closing, I would add that any rights you may have to take legal action against the bank have not been affected by our consideration of his complaint. If I do not hear from you by 1 May 2008 I will assume that you do not wish to take the matter further with us, and I will close my file. However, if you do not agree with my conclusion please come back to me by that date with your reasons why, along with any further evidence to support your argument. How should I handle if from here? GREAT RESULT TODAY:D :D

UPDATE 24/04/08 I received the following letter this morning before the High Court announcement. 21 April 2008 Dear AC2007 Your complaint about Clydesdale Bank Plc We are writing to you with regard to your complaint about unauthorised overdraft charges to update you about recent developments. You will recall from our previous correspondence that because the Office of Fair Trading commenced legal action against the banks in July 2007, we felt it inappropriate to progress your complaint until the underlying legal issues were resolved. More recently, the Financial Services Authority (FSA) undertook a review of the waiver it had provided to the banks concerning unauthorised overdraft charges complaints handling. At that time, the FSA decided that banks and building societies should, after all, continue to deal with complaints about default charges on business accounts. The bank has therefore reviewed your complaint. Whilst it does not accept that its charges are unlawful or unfair, it has told us that it would prefer to settle your complaint as an alternative to our formal investigation. It accepts no liability, but nonetheless says that as a gesture of goodwill it is prepared to refund you with the following sums: A/c No. XXXXXXX £ 305.00 A/cNo. XXXXXXX £3.866.50 Total offer £4.171.50 According to the bank, the total offer represents a full refund of all the default charges incurred on your accounts over 5 years and, on this basis we assume you will give it serious consideration. Whilst it is recognised that the offer is less than your claim, it may be helpful to clarify that monthly charges passed in respect of the transmission of cheques/credits, fees incurred for the provision of a service or arrangement fees in respect of the grant of an overdraft facility, would not ordinarily be considered by this service where these are levied in accordance with the bank's published tariff, or are in line with a subsequent agreement. Additionally, we would normally expect a bank to charge interest for borrowing money. I suspect too that you may consider that the Ombudsman Service should investigate the issue of current account charges in the public interest. However, as you will be aware, the Office of Fair Trading/High Court is presently considering the wider issues that you raise. Nevertheless, if you would like to accept the bank's offer of settlement, please sign and return the enclosed acceptance form to us by 6 May 2008. Alternatively, if the proposed settlement appears to you to fall short of your claim please let us have specific details of what remains outstanding, together with supporting evidence, by the above date. I was going to knock them back before the announcement, so what does everyone think my next course of action should be? GREAT RESULT TODAY:p :p

UPDATE 07/02/08 Today I received an acknowledgement from the FOS that they have received all my paperwork and my completed complaints form. Getting closer I hope.

UPDATE 07/02/08 After speaking with the FOS on the phone they have decided that the BOS do in fact have a case to answer and have instigated an investigation. Today I received an acknowledgement from the FOS that they have received all my paperwork and my completed complaints form. Getting closer I hope.

hi HB, I am in the process of claiming for charges going back more than 6 years against both BOS & CB for both personal and business accounts. Hope there is something here that helps. Cheers AC AC2007 v BOS AC2007 v CB I

Congratulations & well done for not giving up.

UPDATE 19/01/08 Letter received from FOS as follows; 18 January 2008 Dear AC2007 Your complaint about Clydesdale Bank Plc Thank you for your recent enquiry about your complaint. I have enclosed a leaflet which explains how we can help to resolve complaints. I have also enclosed our complaint form which I have filled in as far as I could from the information you have provided. Please check this, amend it if necessary and add any missing information, then sign and return it to me along with any supporting documentation. We will then be in a position to take the appropriate action with your complaint. I am returning any papers you may have sent us, as they may be useful when you are completing the form, but please let me have them back when the completed complaint form is returned. Please return these documents promptly. If you do not do so you may lose your right to complain. I will take no further action until I hear from you again. Yours sincerely Finally getting somewhere unlike my response from the FOS regarding Bank of Scotland AC2007 v BOS

UPDATE 19/01/08 Letter received from FOS as follows; 16 January 2008 Dear AC2007 Your complaint about Bank of Scotland plc Thank you for contacting us. I enclose our leaflet which explains how we can help to resolve complaints. As you will see, before we can consider a complaint the business concerned must have been given a chance to put things right. I have therefore written to the business to let them know that you have a complaint, the business should now contact you for details of the complaint, if they do not already have them. If you do not hear from them within the next few days after receiving this letter, you may wish to contact them at the address given below, mentioning that we have already written to them. They should issue a final response in writing within 8 weeks of the date they receive the complaint. For your information the business's address is: Mr Hughes Bank of Scotland pic Customer Relations Trinity Road Halifax West Yorks HX1 2RG On receipt of the business's final response, if you feel they have not put things right for you, or, alternatively, if you have not heard from them after those 8 weeks, please complete the enclosed complaint form, and send it to us along with any supporting documentation. I have returned any papers you may have sent us in case you need to refer to them. We will take no further action unless you contact us again. Yours sincerely What I can’t understand is that the bank HAVE had the chance to respond to the complaints, should I call the FOS on Monday and talk with the consultant handling my case as I have had a totally different response from the FOS regarding the Clydesdale Bank???? AC2007 V CB

I hope so.

Are you at the same stage for a business account? How long have you been waiting?

UPDATE 14/01/08 Letter received from FOS:-) Dear AC, Acknowledgement Thank you for your correspondence, which has been received safely. We are currently receiving very high volumes of enquiries and we will provide you with a full response as soon as we can. If you need to contact us in the meantime, please quote reference number ******** Now it is just a waiting game.

UPDATE 14/01/08 Letter received from FOS:) Dear AC, Acknowledgement Thank you for your correspondence, which has been received safely. We are currently receiving very high volumes of enquiries and we will provide you with a full response as soon as we can. If you need to contact us in the meantime, please quote reference number ******** Now it is just a waiting game.

Well done MB:p We are well on our way to getting back what is rightfully ours.

What makes you say that? I was under the impression that business accounts were not included in the test case.

I would call the manager at her branch and explain the reasons and the situation, he has the authority to refund her account without going to the hassle of letters at this stage.

UPDATE 19/12/07 Letter sent to FOS as there has still been no reply from BOS. Dear Sir or Madam, I would like to register a complaint against Bank of Scotland regarding bank charges on two business accounts that I have held with them. I first became aware that the charges which had been applied to my business accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law back in February 2007 and started to put together a claim using my old statements as far back as I could. I then wrote to the bank requesting copies of missing statements for both accounts and further information about previous accounts. I have enclosed a copy of the paper trail of communication since. Item 1 10/08/07: Letter to bank requesting information. Item 2 21/09/07: Letter to bank as they had not answered my first letter. Item 3 14/11/07: Letter to bank requesting repayment of charges (this letter included interest which I now realise I should not have included) Item 4 03/12/07: Letter to bank again requesting repayment of charges as they have still not replied to me at all even after 5 months. (Amended preliminary letter enclosed). Item 5 03/12/07: Amended preliminary letter. I am now asking for your help in resolving this issue as it has now been going on for over 5 months and I believe that the bank are just ignoring me in the hope that I will just go away. All communications have been sent recorded delivery, so it is not as if they haven’t received the letters. If you need any further information I can be contacted on XXX XXX XXXXX and I look forward to your assistance in resolving this matter. Yours faithfully, AC2007 I await their reply;)

UPDATE 19/12/07 Letter sent to FOS. Dear Sir or Madam, I would like to register a complaint against Clydesdale Bank regarding bank charges on two business accounts that I have held with them. I first became aware that the charges which had been applied to my business accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law back in February 2007 and wrote to the bank requesting copies of statements for both accounts. I have enclosed a copy of the paper trail of communication since. Item 1 26/03/07: Letter received from bank acknowledging my request. Item 2 17/04/07: Letter received from bank requesting my patience in the matter as they are unable to meet their obligations under the Data Protection Act 1998. Item 3 10/07/07: Letter to bank expressing my disappointment that they had still not fulfilled their obligation. Item 4 11/07/07: Letter received from bank again asking for patience as the can still not fulfill their obligations even though it is now over 130 days since I first contacted them. By this time I had lost patience with the bank to ever get me copies of the statements so I managed to trawl through old accounts boxes in storage and retrieve the statements that I was looking for and calculated the charges which I had been charges and wrote to the bank asking for the amounts to be refunded. Item 5 12/07/07: Letter to bank requesting repayment of charges (this letter included a personal account and interest which I now realise I should not have included) Item 6 17/07/07: Letter received from bank asking for more time to investigate. Item 7 19/07/07: Letter to bank allowing them until 14th August to conclude investigation. Item 8 02/07/07: Letter from bank advising me of the upcoming test case by the OFT and that all complaints were being put on hold until after the case. I was later made aware that as the test case was concerning UCTA, UTCCR and SGSA and that business accounts were not covered by the test case I then wrote back to the bank. Item 9 14/11/07: Letter to bank again requesting repayment of charges for both business accounts (again I realise that interest should not have been added). Item 10 16/11/07: Letter received from bank dismissing claim as they assume I am claiming under consumer law. Item 11 03/12/07: Letter to bank confirming I am not claiming under consumer law and again requesting repayment of charges. (Amended preliminary letter enclosed). Item 12 03/12/07: Amended preliminary letter. Item 13 07/12/07: Letter received from the bank again advising of the test case. I am now asking for your help in resolving this issue as it has now been going on for over 10 months and I believe that the bank are not even reading my letters properly and are just replying with standard computerised letters in the hope that I will just go away. If you need any further information I can be contacted on XXXX XXX XXXX and I look forward to your assistance in resolving this matter. Yours faithfully, AC2007 I await their reply.

UPDATE 14/12/07 BUSINESS ACCOUNTS Just received a bog standard letter from those lovely people at CB:p which starts: Dear AC2007 We refer to your correspondence dated 7th December (it was dated the 3rd) 2007. We BELIEVE (don’t they KNOW) that your complaint concerns the level, fairness or lawfulness of the charges. If it concerns something else……BLAH,BLAH,BLAH and then goes on to mention the test case. Do these people not actually read letters; they know it is business accounts I am claiming on and that they are not affected by the test case as I noted in my letter. As this was my LBA should I just go directly to the FSO without going back to the bank? So who is alll excited about Santa coming?

UPDATE 04/12/07 BUSINESS ACCOUNTS LBA & Ameded Prelim letter sent with no mention of interest, if I haven't heard from them by 18/12/07 I will inform the FSO. LETTER BEFORE ACTION Dear Sir or Madam, Sort Code xxxxxx Account # xxxxxxxx Sort Code xxxxxx Account # xxxxxxxx I am somewhat disappointed that you have not replied to my letter of 14th November and therefore must let you know that it is now my intention to take the matter further. I understand that the regime of fees which you have applied to my business accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law. I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law. I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I calculate that you have taken £12,849.00 as detailed in the full schedule which was sent to you with my previous letter. Amended copy enclosed. I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice. Yours faithfully, AC2007

UPDATE 04/12/07 LBA & Ameded Prelim letter sent with no mention of interest, if I haven't heard from them by 18/12/07 I will inform the FSO. LETTER BEFORE ACTION Dear Sir or Madam, Sort Code xxxxxx Account # xxxxxxxx Sort Code xxxxxx Account # xxxxxxxx I am somewhat bewildered by your letter of 22nd November stating that you will not look into refunding charges from over 6 years ago as my understanding is that under the current law found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation. A claim for breach of contract generally becomes enforceable when there is a concurrence of liability (i.e. the breach) and actual loss. The pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (e.g. where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge. As I did not know until the publicity this year regarding the charges then it can be assumed that I did not become aware of a breach until that time. I understand that the regime of fees which you have applied to my accounts in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law. I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law. I am frankly shocked that you have operated the account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I calculate that you have taken £5,675.00 in charges as detailed in the full schedule which was sent to you with my previous letter. Amended copy enclosed. I require repayment of this money. If you do not return it to me in full within 14 days, I shall begin a claim against you for the full amount plus interest, plus my costs, without further notice. Yours faithfully, AC2007