Shareholder as consumer - claim against bank (live case)

[anthonyfca]

Here is my longer offering.

 

Hello Anthony

 

No matter how I look at this and no matter how many times I read 2.7.3 and 2.7.6, I think you may find that you are flogging a dead horse and I think we will have to agree to disagree on this one.

 

>> Please don't! At least not yet.

 

Looking at this objectively with no vested interest in a desired pointed of view. The way I read it, to be an eligible complainant - the entity making the complaint must meet the criteria of both 2.7.3 and 2.7.6.

 

>>well, not exactly.

>>the complainant (which includes micro entities) must meet the criteria in 2.7.3

>>the complaint must be about a relationship described in the 14 items of 2.7.6 - if it doesn't, THEN it affects eligibility of the complainant.

 

>>Therefore it is not true to say "the entity making the complaint must meet the criteria of both 2.7.3 and 2.7.6"

 

"(b) who has rights or interests which are derived from, or are otherwise attributable to the use of, any such services by another person; or"

 

This section would only appear to apply to the requirement to be a consumer as required by 2.7.3. However, for the consumer (if accepted that a shareholder is a consumer)

 

>> the issue in all this is your use of the word "only" just above, it is that very application that changes everything.

 

>>this section allows access to the shareholder as a consumer in relation to services received by another person

>>what this does is crucial, it allows a consumer redress when it is another person who has a complaint defined by a relationship in 2.7.6

>>this means the consumer need not have the complaint based on 2.7.6, only a loss as a result of it.

 

 

to be

an eligible complainant it must also have

a complaint that arises from 1 of the 14 relationships.

 

>>Indeed so, and this so in the case at hand.

>>In other words if the complaint is rendered ineligible because one of the 14 items is not met, it also renders the complainant ineligible.

 

 

I honestly can't see anyway that it can be said that a shareholder does have a complaint arising from any of the 14 relationships. 2.7.6 does not make reference to the term consumer therefore the defination (as quoted above) is not applicable.

 

>> 2.7.6 does not define ANY complainants, let alone consumers or shareholders et al.

 

2.7.6 states:

 

To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent:

 

The shareholder as a natural person (human being) does not have a complaint arising from a matter relevant to 1 of the 14 relationships. I really don't understand your argument that the shareholder is an eligible complainant. Can you please break it down into simple terms for me as I really don't see it.

 

To be an eligible complainant rather than not an eligible complainant the shareholder has to tick the two boxes of 2.7.3 and 2.7.6. I am just going by what each says.

 

>>not quite, you are not applying the definitions provided in 2.7.3 for use in 2.7.6

 

>>2.7.6 does not in fact define anyone at all, so naturally trusts, charities, entities and so on including consumers are not ticked by 2.7.6, not merely shareholders are missing, everyone is, because that is not what 2.7.6 is for.

 

2b is not about whether a shareholder is a consumer so let us use the word consumer instead of shareholder:

 

it can be said that a consumer does have a complaint arising

from_____________________________ 1/14 in 2.7.6, whereas 2b says they can

from a complaint by another person from 1/14 in 2.7.6

 

Now do you see what is missing? Quite literally?

 

So where a shareholder manages to meet the consumer criteria, then they can proceed.

Edited October 17, 2010 by anthonyfca
terrible format trouble, had to change a lot.

[NoButYesBut]

I guess I am just being really blind or dumb on this one.

 

2.7.1 states:

 

A complaint may only be dealt with under the Financial Ombudsman Service if it is brought by or on behalf of an eligible complainant.

 

Therefore if the complaint is brought by or on behalf of an entity that is not an eligible complainant, the Financial Ombudsman Service is unable to deal with the complaint.To identify if an entity is an eligible complainant, there appears to be two tests that both must be passed

 

Eligible Complaint Test

 

Part One

 

DISP 2.7.3 An eligible complainant must be a person that is: (1) a consumer;

(2) a micro-enterprise;

 

To pass the first test the complainant must be a person (within the meaning of (in accordance with the Interpretation Act 1978) any person, including a body of persons corporate or unincorporate (that is, a natural person, a legal person and, for example, a partnership) that is either a consumer or a micro-enterprise.

 

On the basis that a shareholder can be classed as a consumer we can move onto the second test.

 

Part Two

 

DISP 2.7.6

 

To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent

 

To pass the second test the shareholder in addition to being a person (within the above meaning) must also have a complaint which arises from matter relevant to one of the 14 relationships.

 

Can we agree that if the consumer does not have a complaint that arises from one of the 14 relationships, the shareholder is not an eligible complainant.

 

I just can't escape the problem that the consumer (in this case the shareholder) does not have any of the relationships required with the bank so is unable to have a complaint arising from relationship that does not exist

[NoButYesBut]

So where a shareholder manages to meet the consumer criteria, then they can proceed.

 

But the way it is worded being a consumer is not enough 2.7.6 confirms that the consumer must also have one of the relationships to be an eligible complainant.

 

 

"To be an eligible complainant a person (being (in accordance with the Interpretation Act 1978 ) any person, including a body of persons corporate or unincorporate (that is, a natural person, a legal person and, for example, a partnership) must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent

 

To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent

 

No relationship = not an eligible complainant

Edited October 17, 2010 by NoButYesBut

[NoButYesBut]

To help me understand your point of view can you tell me which one of the relationships as required by 2.7.6 the shareholder as the complainant (the entity making the complaint) has with the bank

 

(1) the complainant is (or was) a customer or payment service user, of the respondent;

(2) the complainant is (or was) a potential customer or payment service user, of the respondent;

(3) the complainant is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

(4) the complainant is a beneficiary of, or has a beneficial interest in, a personal pension scheme or stakeholder pension scheme;

(5) the complainant is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

(6) the complainant is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

(7) the complainant relied in the course of his business on a cheque guarantee card issued by the respondent;

(8 )the complainant is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

(9) the complainant is the recipient of a banker's reference given by the respondent;

(10) the complainant gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

(11) the complainant is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

(12) the complainant is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

(13) the complainant is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

(14) (where the respondent is a dormant account fund operator) the complainant is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

 

 

(P.S Don't forget you specifically requested counter arguments)

Edited October 17, 2010 by NoButYesBut
Sorry fingers work quicker than my brain

[anthonyfca]

The shareholder does not have a relationship with the bank.

[anthonyfca]

however the "another person" entity does.

[NoButYesBut]

"To be an eligible complainant a person (being (in accordance with the Interpretation Act 1978 ) any person, including a body of persons corporate or unincorporate (that is, a natural person, a legal person and, for example, a partnership) must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent

 

In otherwords

 

To be an eligible complainant the shareholder must also (in addition to being a consumer) must also have a complaint which arises from matters relevant to one or more of the 14 listed relationships.

 

So

 

If the shareholder does not have a complaint that arises from matters relevant to one or more of the 14 listed relationships it is not an eligible complainant.

 

For me it does what it says on the tin. I know I do look at things in a very simplistic way.

[NoButYesBut]

however the "another person" entity does.

 

Doesn't "another person" relate to what is a consumer. Being a consumer is not enough though.

[anthonyfca]

So where a shareholder manages to meet the consumer criteria, then they can proceed.

But the way it is worded being a consumer is not enough 2.7.6 confirms that the consumer must also have one of the relationships to be an eligible complainant

I meant proceed to the next stepof this process.How about if we drop "shareholder" for the moment and just focus on the "consumer"? Will that be acceptable in removing a layer of obscurity to which we could return later?

[NoButYesBut]

The shareholder does not have a relationship with the bank.

 

Therefore the shareholder does not meet the criteria of 2.7.6,

 

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

[NoButYesBut]

So where a shareholder manages to meet the consumer criteria, then they can proceed.

But the way it is worded being a consumer is not enough 2.7.6 confirms that the consumer must also have one of the relationships to be an eligible complainant

I meant proceed to the next stepof this process.How about if we drop "shareholder" for the moment and just focus on the "consumer"? Will that be acceptable in removing a layer of obscurity to which we could return later?

 

If we use the word consumer,

 

The consumer must also have a complaint which arises from matters relevant to one or more of the 14 relationships with the bank. But as you have said the consumer (in this case) does not have any relationship with the bank. So it can't have a complaint arising from a relationship that does not exisit.

[anthonyfca]

For me it does what it says on the tin. I know I do look at things in a very simplistic way.

Ok, for every use of the word "complainant" in 2.7.6 you must on this tin, substitute every word of 2.7.3 and then within that you must substitute every definition from the glossary into each term defined therein.

 

Now then, how is the tin looking? Perhaps a bigger can of beans? (hope you like my imagery)

[NoButYesBut]

For me it does what it says on the tin. I know I do look at things in a very simplistic way.

Ok, for every use of the word "complainant" in 2.7.6 you must on this tin, substitute every word of 2.7.3 and then within that you must substitute every definition from the glossary into each term defined therein.

 

Now then, how is the tin looking? Perhaps a bigger can of beans? (hope you like my imagery)

 

lol, sorry I am not trying to waste your time or be difficult. You asked for counter arguments and I think what I have said thus far is a very good counter argument

[NoButYesBut]

I don't think there is anyway of escaping or overcoming the requirements of 2.7.6

[anthonyfca]

Can we agree that if the consumer does not have a complaint that arises from one of the 14 relationships, the shareholder is not an eligible complainant.

 

No.That is not what 2.7.6 says. What we may be able to agree is, with the terms as defined:To be an eligible complainant a person must also have a

complaint which arises from matters relevant to one or more of the following relationships with the respondent:

 

So can we can agree that the complaint must arise from matters relevant to one or more of the following 14 relationships?

[anthonyfca]

I think it is excellent that you are prepared to engage at this length and I thank you for it

[NoButYesBut]

Can we agree that if the consumer does not have a complaint that arises from one of the 14 relationships, the shareholder is not an eligible complainant.

 

No.That is not what 2.7.6 says. What we may be able to agree is, with the terms as defined:To be an eligible complainant a person must also have a

complaint which arises from matters relevant to one or more of the following relationships with the respondent:

 

So can we can agree that the complaint must arise from matters relevant to one or more of the following 14 relationships?

 

How can the complaint arise from a relationship that does not exisit

 

The shareholder does not have a relationship with the bank.

 

Therefore the shareholder does not meet the criteria of 2.7.6,

 

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

[anthonyfca]

I don't think there is anyway of escaping or overcoming the requirements of 2.7.6

 

It's not about avoidance, it is about compliance. What it takes to comply.I think there is a deeper problem in all this and "shareholder" is acting as a smoke screen. Can we focus on consumer for the time being?

[anthonyfca]

If we use the word consumer,

 

The consumer must also have a complaint which arises from matters relevant to one or more of the following relationships with the bank

Ok, so who does fulfil the requirements of 2.7.6?

[NoButYesBut]

The shareholder is the complainant (the enitity making the complaint). So with regard to the use of the word complainant in 2.7.6, we can substitue it for the term shareholder.

 

So to be an eligible complainant one of the following 14 statements must be true. If it isn't the shareholder is not an eligible complainant. But nevertheless is still a complainant.

 

 

(1) the shareholder is (or was) a customer or payment service user, of the respondent;

 

(2) the shareholder is (or was) a potential customer or payment service user, of the respondent;

 

(3) the shareholder is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

 

(4) the shareholder is a beneficiary of, or has a beneficial interest in, a personal pension scheme or stakeholder pension scheme;

 

(5) the shareholder is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

 

(6) the shareholder is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

 

(7) the shareholder relied in the course of his business on a cheque guarantee card issued by the respondent;

 

(8 )the shareholder is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

 

(9) the shareholder is the recipient of a banker's reference given by the respondent;

 

(10) the shareholder gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

 

(11) the shareholder is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

 

(12) the shareholder is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

 

(13) the shareholder is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

 

(14) (where the respondent is a dormant account fund operator) the shareholder is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

[NoButYesBut]

Ok, so who does fulfil the requirements of 2.7.6?

 

A complainant that has a complaint which arises from matters relevant to one or more of the 14 relationships

[NoButYesBut]

(1) the shareholder is (or was) a customer or payment service user, of the respondent;

 

(2) the shareholder is (or was) a potential customer or payment service user, of the respondent;

 

(3) the shareholder is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

 

(4) the shareholder is a beneficiary of, or has a beneficial interest in, a personal pension scheme or stakeholder pension scheme;

 

(5) the shareholder is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

 

(6) the shareholder is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

 

(7) the shareholder relied in the course of his business on a cheque guarantee card issued by the respondent;

 

(8 )the shareholder is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

 

(9) the shareholder is the recipient of a banker's reference given by the respondent;

 

(10) the shareholder gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

 

(11) the shareholder is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

 

(12) the shareholder is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

 

(13) the shareholder is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

 

(14) (where the respondent is a dormant account fund operator) the shareholder is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

 

Is the shareholder any of the above ?

[anthonyfca]

No, that's the whole point of my original post.

The consumer/shareholder "(b) who has rights or interests which are derived from, or are otherwise attributable to the use of, any such services by another person; or"

 

The use of services by another person - it is this other person whose complaint must have the relationship of 14.

 

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

 

Where eligible complainant is first defined by 2.7.3 in order to proceed to 2.7.6 to examine the service relationship.

No one is defined in 2.7.6 - they may be rejected by it, but they are not defined by it, whether shareholders or anyone else.

 

As I said above, to understand it is necessary to substitute the definitions into use of the word complainant. 2.7.6 does not do any defining. 2.7.3 does that and it includes the situation where there is The use of services by another person.

Edited October 17, 2010 by anthonyfca
added << and it is these that must meet 2.7.6

[NoButYesBut]

No, that's the whole point of my original post.

The consumer/shareholder "(b) who has rights or interests which are derived from, or are otherwise attributable to the use of, any such services by another person; or"

 

The use of services by another person - it is this other person whose complaint must have the relationship of 14.

 

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

 

Where eligible complainant is first defined by 2.7.3 in order to proceed to 2.7.6 to examine the service relationship. The shareholder is bringing the complaint on behalf of him/her self and not on behalf of the company

No one is defined in 2.7.6 - they may be rejected by it, but they are not defined by it, whether shareholders or anyone else.

 

As I said above, to understand it is necessary to substitute the definitions into use of the word complainant. 2.7.6 does not do any defining. 2.7.3 does that and it includes the situation where there is The use of services by another person.

 

To be an eligible complainant the shareholder must comply by with both as it is the entity making the complaint. The shareholder (the complainant) is bringing the complaint on behalf of his/her self and not the company

[anthonyfca]

Is the shareholder any of the above ?

That is misquoting 2.7.6, which is not how the rule book works.

It uses the undefined word "claimant" just so as to allow the attribution of the definitions is 2.7.3 and indeed the shareholder as consumer does suffer from The use of services by another person and that other person does have such a relationship.

 

Only a consumer has this "second hand" advantage, which seems to me to be as it should be.