Are we all correct about BCOB?

[whizzkid001]

Can someone clarify whether it is in fact definately possible to sue a bank under BCOB. Only a friend 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!

[BankFodder]

Your barrister is completely wrong. If you want to sue your bank in relation to current account activity then you do have a s.150 direct right of action.

If you want to sue in respect of a non-current account activity such as PPI then you would have to rely on COBS and argue that the principle of fair treatment is implied into the contract. This is an easy and achievable argument. Otherwise the bank would effectively have to argue that they were not bound by COBS in all of their dealings.

[whizzkid001]

So what is he getting when he says '...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'?

 

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).

Edited February 7, 2012 by whizzkid001

[BankFodder]

I've no idea what he is getting at. He is wrong.

[BankFodder]

Also, there is no 3,4,4R in BCOBS. He is probably confused with COBS

[whizzkid001]

Just seen this on the FSA website -

 

'Section 150 rights

 

Under Section 150 of FSMA, private persons who have suffered loss as a result of a firm’s contravention of an FSA rule have the right to take action in the courts for damages. These rights do not attach to breaches of the Principles but are available with respect to breaches of almost all FSA conduct of business rules. So, in line with this approach, we propose that such rights should apply for BCOBS rules.'

 

So surely Principle 6 (a firm must pay due regard to the interests of its customers and treat them fairly) would not be actionable at court given the statement above?

[BankFodder]

No because under BCOBS you would normally be suing under 5.1.1R

 

The principles may be used as a guide to interpretation in a way where the effect of a rule in a particular situation is not clear.

 

Furthermore the Principles are binding overall but not actionable by the private individual - which means that you have to hope that the FSA deigns to take action (HaHa!!). However, as I have pointed out above, it is inconceivable that the principles are not incorporated by implication into EVERY contract with a firm regulated by the FSA and so a breach of contract action is the way to implement the Principles directly

[BankFodder]

That said, it seems to be all so much hot air.

 

The FSA can't be bothered to lift a finger against the banks in a way which is really significant for consumers - and maddeningly, consumers don't seem to be able to pluck up the courage to do it for themselves either - so the banks carry on business as usual and slip away scot-free whilst the consumer, the taxpayer, the health-service, our old people, our young people, the education system, the police service, our armed forces, our small businesses, our high streets - all pay the price. We have a fantastic court system with great accessibility and the legal rights are all there and people simply won't take the small actions to help themselves and which will make all the difference.

Do you know that in most European countries, there is no direct right of access to the courts and you are obliged to employ a lawyer and you are not protected from costs in the event you lose. Even in France where those idiots cut the heads of thousands of people to get rid of a ruling monopolistic elite, they went straight ahead and replaced it with another one within years.

The UK has astonishing access and astonishingly meaningful citizenship - but it seems that we lack the will to get stuck in. It seems that there was never a danger of a revolution in England - our Betters were never in danger - and they still aren't.

[carcar]

BankFodder, I think I will have to sue NatWest, under BCOB.

 

Please can you let me know how I go about this? Is this a tried and tested thing. Also, other threads have suggested compensation etc. How do you calculate this and include it into a claim?