Who do I sue?

[Darset]

In September 2008 I asked Marbles, then both owned and managed by HFC Bank Limited, to make a balance transfer with plenty of time in hand to complete it and subsequent transfers. This was intended to clear another c/c account so that I could make a further transfer (on promotional rates) to a third c/c company to clear that balance in turn so that I could then take advantage of a promotional offer of 6.9% for life.

 

Marbles screwed things up thoroughly not once, not twice but three times and compounded the problem at the last possible moment by dramatically reducing my credit limit so that, among other matters, a finally agreed additional transfer direct to the third c/c company failed the day after it had been both agreed and initiated by Marbles. I calculate that over the life of the balance I would have transferred from the c/c company offering the 6.9% for life (around £8000) which I was unable to initiate in time as a direct result of Marbles's various failures and other actions, I have paid or shall end up paying approaching £4,000 in extra interest (interest at 16.9% instead of at 6.9%).

 

Foolishly, perhaps, I complained to the FOS, approaching them three years ago. I've had four different adjudicators, two of whom were completely incompetent, one of whom was only moderately incompetent and one who was brilliant but who sadly left the service before completing the case (he told me he accepted my argument and was minded to agree completely with my claim). I made a formal complaint of maladministration against one adjudicator and in due course asked for the case to be looked at by an ombudsman. The ombudsman has now made his decision - Marbles 'could have behaved better' and Bank of Scotland should therefore pay me £125 in compensation, a figure which the first, and utterly incompetent, adjudicator came up with over two years ago.

 

I've decided, in consequence, that I should take the matter to court, hopefully to the small claims track. However, matters are now complicated in terms of ownership and I'm not clear whom I should name as the defendant. Clearly I need to get this right.

 

At the time of the incidents 'marbles' and 'the marbles card' were trading names of HFC Bank Limited and as far as I know it was HFC Bank who managed the balance transfer process. Certainly my initial complaint to 'marbles' was answered by HFC Bank on HFC Bank headed paper. It happens also that I recorded the entire 13 conversations with Marbles staff, beginning with the initial enquiry as to what had happened to the by then missing balance transfer; this totalled around 3.5 hours and runs to about 64pp of transcript and during this 'HFC Bank' is mentioned on at least one occasion.

 

When I complained to the FOS I think this was still the case but shortly afterwards the 'marbles' operation was taken over by the Bank of Scotland under licence from, I believe, still HFC Bank. At or around this point the FOS considered my complaint to be made against the Bank of Scotland.

 

At some further point, possibly at around this same time, HFC Bank transferred its interest in the 'marbles' and related trademarks to Aviemore Funding Limited who continued licensing the relevant trademarks to the Bank of Scotland. It's also possible that the change from HFC Bank to Aviemore Funding coincided with the latter licensing the names to Bank of Scotland as they didn't want to run the trading exercise themselves - I simply haven't found out that detail yet.

 

I now learn that as of next month Bank of Scotland is going to be replaced by an entity called Progressive Credit Limited. Interestingly Progressive Credit Limited and Aviemore Funding Limited share the same address in West Malling, Kent. Whether they share the same officers I don't yet know but in any case they're clearly separate legal entitities.

 

Given that the problems took place during the HFC ownership/management and that HFC then owned the trading names and also still exists and trades I should have thought my approach would be to sue HFC despite the fact that the FOS decided that it was the Bank of Scotland that had to answer and pay compensation. It certainly seems fair that as they screwed up they should be chased. Or should I follow the FOS approach and sue the BoS? This would imply, I suppose, that if the management of the trading names changes yet again then I should instead sue this new company Progressive Credit. Or should it be Aviemore Funding in the firing line?

 

There's a further point. I presume that if I accept the meagre £125 directed by the FOS to be paid by the BoS then that would settle my claim and I would not then be free to sue BoS. Would that be the case?

 

Alternatively, however, would accepting the BoS settlement still leave me free to sue HFC Bank (or one of the other two) as the FOS direction is specifically about the BoS?

[BankFodder]

Sounds to me as if you should sue HFC and yes, if you accepted the settlement, I don't think that you could go on and sue them

[citizenB]

xx

 

FOS/Court - two bites of the cherry? High Court says no

 

 

 

The High Court has recently handed down judgment in Andrews v SBJ Benefit Consultants [2010] EWHC 2875 (Ch) confirming that a claimant who accepts a final decision from the Financial Ombudsman Service (“FOS”) cannot then bring a court claim for the balance of any additional loss in respect of the same facts, even if the cause in action is different.

 

https://www.eversheds.com/uk/home/articles/index1.page?ArticleID=templatedata\Eversheds\articles\data\en\Financial_institutions\FOS-Court-two_bites_of_the_cherry&SIDpassed=templatedataEvershedsSectorlistdataenFinancial_institutions

 

 

From Evershed's website

[Darset]

Sounds to me as if you should sue HFC and yes, if you accepted the settlement, I don't think that you could go on and sue them

 

Thanks. Yes, that's pretty much my thinking as well.

[Darset]

From Evershed's website

 

Thanks. That's very helpful.

 

I'd expect that if anyone accepted the FOS recommendation then they couldn't go on to initiate a separate action. However, I wasn't sure whether the fact that FOS had cited Bank of Scotland would also effectively bar my sueing a legally different company, such as HFC. Reading the Evershed comment, although it doesn't specifically mention such a situation, suggests that it probably would. I might email the guy mentioned there and ask him that as a simple question.