Barclaycard decline then uphold complaint.

[Mike_hawk]

I don't think s140 has any legs, any effect of an unfair relationship would flow from inception of the account and would probably be time barred. There are a few first instance examples floating around on here and on Bailii if you do some digging

 

PPI is addressed within ICOB and there are several helpful references to relevant sections within the following http://www.publications.parliament.uk/pa/jt201314/jtselect/jtpcbs/27/27ix_we_j02.htm

 

COBS for the consumer....... I'm not sure it offers any remedy or cause for the individual in respect of redress schemes, FSMA 2000 s.404 may assist

 

Personally I'd be inclined to test the water with the FOS, whilst the matter may be related to PPI the thrust of your complaint would be weighted to unfair treatment which [on the face of it] seems a fundamental contravention of COBS.

[BankFodder]

http://www.fshandbook.info/FS/html/FCA/COBS/Sch/5

 

COBS Sch 5.4 Confirms that there is a right of private action for breach of cobs.

 

In fact the rights of action for breaches of any of the BCOBS, ICOBS, MCOBS rules are all contained in the schedule to the transitional provisions in each set of rules.

 

The idea of using section 140 instead is an interesting one and it hadn't occurred to me before.

 

I think it is certainly a possibility and you might consider claiming it in the alternative.

 

However, I think that cobs is probably much more straightforward. It is also more Draconian in the standards that it sets.

 

It is clear from all the cobs rules that the duties of these companies is to act in their customers best interests. This is a pretty high standard of behaviour because it actually suggests that the banks would have to sacrifice their own interests in the event that there is a conflict of interests.

 

These cobs rules are even in conflict with the rules applied by the ombudsman and I expect that this is one of the reasons why BCOBS and the rest are never mentioned on the ombudsman's website.

 

The ombudsman rebate is to find a solution which produces a fair outcome to both parties. To me, this means that there may be a sacrifice of the customers best interests if the outcome is not fair to the company.

 

The ombudsman has no power to implement proper cobs solutions where it means that the decision is potentially not in the interests of the company.

 

The language used in the Consumer Credit Act about abusing dominant position is unnecessarily complicated. I'm not sure that I agree about the matter being time-barred.

 

I haven't looked at section 140 recently but I do recall that it refers to associated or related transactions. It seems to me that the general responsibility not to abuse a dominant position comes into being at the time the agreement was made – but there then becomes a section 140 cause of action at the time that that relationship is abused. The six year time limit runs from then – just as in the contract.

 

For me also, cobs has a far more general and wide-ranging application and so for that reason also I would prefer to encourage a claim under cobs.

 

I think cobs so is your best interests, the best interests of all customers of all financial services – and I think it serves the worst interests of the regulated firms.

 

On a final note, although I have suggested that section 140 could be used in the alternative, for a small claim I simply wouldn't bother to introduce this new level of complication.

 

Not only are you dealing with a small claim here but also you are dealing with a very small amount. It is a perfect vehicle to test out cobs and I think it would be better to make a very focused claim.

 

I think it is much easier simply going for the low hanging fruit

[paulwlton]

http://www.fshandbook.info/FS/html/FCA/COBS/Sch/5

 

COBS Sch 5.4 Confirms that there is a right of private action for breach of cobs.

 

In fact the rights of action for breaches of any of the BCOBS, ICOBS, MCOBS rules are all contained in the schedule to the transitional provisions in each set of rules.

 

The idea of using section 140 instead is an interesting one and it hadn't occurred to me before.

 

I think it is certainly a possibility and you might consider claiming it in the alternative.

 

However, I think that cobs is probably much more straightforward. It is also more Draconian in the standards that it sets.

 

It is clear from all the cobs rules that the duties of these companies is to act in their customers best interests. This is a pretty high standard of behaviour because it actually suggests that the banks would have to sacrifice their own interests in the event that there is a conflict of interests.

 

These cobs rules are even in conflict with the rules applied by the ombudsman and I expect that this is one of the reasons why BCOBS and the rest are never mentioned on the ombudsman's website.

 

The ombudsman rebate is to find a solution which produces a fair outcome to both parties. To me, this means that there may be a sacrifice of the customers best interests if the outcome is not fair to the company.

 

The ombudsman has no power to implement proper cobs solutions where it means that the decision is potentially not in the interests of the company.

 

The language used in the Consumer Credit Act about abusing dominant position is unnecessarily complicated. I'm not sure that I agree about the matter being time-barred.

 

I haven't looked at section 140 recently but I do recall that it refers to associated or related transactions. It seems to me that the general responsibility not to abuse a dominant position comes into being at the time the agreement was made – but there then becomes a section 140 cause of action at the time that that relationship is abused. The six year time limit runs from then – just as in the contract.

 

For me also, cobs has a far more general and wide-ranging application and so for that reason also I would prefer to encourage a claim under cobs.

 

I think cobs so is your best interests, the best interests of all customers of all financial services – and I think it serves the worst interests of the regulated firms.

 

On a final note, although I have suggested that section 140 could be used in the alternative, for a small claim I simply wouldn't bother to introduce this new level of complication.

 

Not only are you dealing with a small claim here but also you are dealing with a very small amount. It is a perfect vehicle to test out cobs and I think it would be better to make a very focused claim.

 

I think it is much easier simply going for the low hanging fruit

 

I'm starting to get the feel of this now and it appears straight forward save for the following advice on CAGs link to COBS.

 

 

"The fly in the ointment, however, is that there is NO RIGHT of direct civil action in the courts for aggrieved customers. There is no clear reason why this should be."

 

This advice/caveat contradicts schedule 5.4 where a breach would give rise to a section 138d claim.

 

PW

[BankFodder]

Thank you for this. It is an error. Please would you post the link to me and I will correct it

[paulwlton]

Thank you for this. It is an error. Please would you post the link to me and I will correct it

 

 

 

http://www.consumeractiongroup.co.uk/forum/content.php?834-Fair-Treatment-for-Credit-Card-Holders-and-Borrowers

[BankFodder]

Ta. Encouraging to see that at least one person pays attention to what I write!!!

[paulwlton]

I don't think s140 has any legs, any effect of an unfair relationship would flow from inception of the account and would probably be time barred. There are a few first instance examples floating around on here and on Bailii if you do some digging

 

PPI is addressed within ICOB and there are several helpful references to relevant sections within the following http://www.publications.parliament.uk/pa/jt201314/jtselect/jtpcbs/27/27ix_we_j02.htm

 

COBS for the consumer....... I'm not sure it offers any remedy or cause for the individual in respect of redress schemes, FSMA 2000 s.404 may assist

 

Personally I'd be inclined to test the water with the FOS, whilst the matter may be related to PPI the thrust of your complaint would be weighted to unfair treatment which [on the face of it] seems a fundamental contravention of COBS.

 

I found the FOS (and others) to be woefully inept when I was locking horns with my old chum at RBS Therfore, I think it best to challenge the matter in court.

[paulwlton]

Am I correct in thinking that there's an opportunity to claim punitive damages as well as compensation/damage for loss?

[BankFodder]

Am I correct in thinking that there's an opportunity to claim punitive damages as well as compensation/damage for loss?

 

O'm not at all sure. I haven't looked into it this far as there have been really no takers on any COBS action to date

What have you found?

 

What I can say is that in my experience on two BCOBS actions so far has suggested very strongly that the banks are very anxious to avoid BCOBS judgments because the level of their settlement offers has been incredibly high.

[paulwlton]

O'm not at all sure. I haven't looked into it this far as there have been really no takers on any COBS action to date

What have you found?

 

What I can say is that in my experience on two BCOBS actions so far has suggested very strongly that the banks are very anxious to avoid BCOBS judgments because the level of their settlement offers has been incredibly high.

 

It's just that if the bank has acted unfairly why should the claimant be restricted to claim solely for loss. Would it be unreasonable to include an element for exemplary damage, especially as the court is considering fairness as opposed to contractual breach.

[BankFodder]

I have been giving this some consideration. Because by suing under cobs you are suing for breach of statutory duty, the rules will be applied very strictly.

 

I think that because the regulations or Statute don't appear to have referred to any exemplary or punitive damages, they will probably not be available.

 

If that is the case then it leaves you having to sue for your losses. We can try to put together a case for loss including the loss of the money, interest, and also we may as well try to sue the any stress or inconvenience this might have caused you.

 

We can try to put in a moderate claim for extra damages and leave it to the discretion of the court and then see what happens.

 

Seeing that it is all such low value, it is not likely to be very expensive to bring the claim. I'm afraid that at this point it is rather experimental although I have absolute no doubt on the principle. The only problem is that although the regulations of been in place for more than seven years, nobody has picked up the ball

[Mike_hawk]

I found the FOS (and others) to be woefully inept when I was locking horns with my old chum at RBS Therfore, I think it best to challenge the matter in court.

 

I would say it was the same for me but to be frank I knew the extent of its answer before asking the question, it acted within DISP and whether in error or intent disclosed data which RBS probably believed was privileged...... I needed disclosure and evidence to sue and it provided

 

For my 2 pence worth I believe you should really consider the 'what if's'.... what if it defends on the basis the CMC settlement was a mistake? What if it defends on the basis that COBS offers no common law duty of care remedy?

 

In effect, it's difficult to see how you could bring a case for its actions without opening up the matter of it's PPI redress.

 

My gut feeling is to test the water with the Ombudsman on the wider issue, if successful and reported it would greatly assist the many who may have been misled. If it fails you have the option to request disclosure of all data [with the exception of privileged correspondence] in possible support of a future claim.

[paulwlton]

I would say it was the same for me but to be frank I knew the extent of its answer before asking the question, it acted within DISP and whether in error or intent disclosed data which RBS probably believed was privileged...... I needed disclosure and evidence to sue and it provided

 

For my 2 pence worth I believe you should really consider the 'what if's'.... what if it defends on the basis the CMC settlement was a mistake? What if it defends on the basis that COBS offers no common law duty of care remedy?

 

In effect, it's difficult to see how you could bring a case for its actions without opening up the matter of it's PPI redress.

 

My gut feeling is to test the water with the Ombudsman on the wider issue, if successful and reported it would greatly assist the many who may have been misled. If it fails you have the option to request disclosure of all data [with the exception of privileged correspondence] in possible support of a future claim.

 

I see where you're coming from in relation to the FOS route. However, BC has now admitted that it mis-sold the PPI. There's no mistake. In fact, their letter states the following. -

 

" I have made my decision after reviewing your application form the information provided by your CMC and our internal system evidence".

 

"Based on the evidence I have reviewed about the sale of your ppi policy I am upholding your claim as I agree the ppi policy was mis-sold".

 

The question I want answering is:

 

Was the CMCs application form different to BC in respect of selected questions?

 

Let's see what the SAR reveals.

[Mike_hawk]

Agreed...... I think that [bC disclosures] should underpin any decision you make going forward

 

Will the CMC release its copies of docs to you without the kerfuffle [and expense] of an SAR to it?

[paulwlton]

Agreed...... I think that [bC disclosures] should underpin any decision you make going forward

 

Will the CMC release its copies of docs to you without the kerfuffle [and expense] of an SAR to it?

 

I'll give CMC a ring on Monday.

 

BC could plead they didn't act unfairly by declining the initial claim and that it was just an oversight. This would be admitting mistake which caused me loss and by not compensating me the success fee they are in breach if the sixth principle of COBS any remedy would be to claim damages pursuant to sec 138d fsma.

 

Could get interesting.

[paulwlton]

When did they decline your PPI claim? That is the date of the unfair treatment

 

 

 

 

....or is the unfair treatment the date they decline to compensate my loss?

 

 

It may be prudent to forward a grievance to the head of customer relations first to get the ball rolling?

[Mike_hawk]

....or is the unfair treatment the date they decline to compensate my loss?

 

 

It may be prudent to forward a grievance to the head of customer relations first to get the ball rolling?

 

 

I think you'd have to decide which event would be the best fit to a successful claim and choose that as the moment in time of unfair treatment. Others may have a different approach but where there have been multiple side issues compounding upon the claim I've targeted an event on best percentage of success.

 

Link to Green v RBS gives some insight into the courts approach to COBS and statutory duty http://www.bailii.org/ew/cases/EWCA/Civ/2013/1197.html

 

I'd wait on the SAR response before the formal complaint, we both know how documentation can suddenly become unobtainable.

[paulwlton]

It's time to ask for the fee back. Letter off tomorrow.

 

PW

 

 

Dear sir/Madame

 

On the 24th April 2015 I received a letter from Barclaycard wherein you apologised for the miss-selling of payment protection insurance and agree to refund premiums and associated interest. You also refer to a previous letter dated 11 May 2013 and again apologise for the inconvenience of having to revisit my claim.

 

Some time in the early spring of 2013 I decided to claim back all my PPI payments as I believed that the policy was mis-sold, barclaycard sent out an application form and I filled in the relevant questions. To my surprise Barclaycard declined my claim.

 

In late 2014 I read media reports that some customers were not being treated fairly when submitting claims for mis-sold PPI.

 

In March 2015 I was contacted by a Claims management company and I agreed for them to act on my behalf in relation to claiming back mis-sold PPI. Their success fee was 30%.

 

The CMC submitted a further claim which was surprisingly now upheld by BC with the success fee being the sum of £190.35

 

 

The purpose of this letter is to request that Barclaycard compensate me for my loss of £190.35 - had Barclaycard upheld my initial claim I'd have received full compensation notwithstanding a reduced amount of interest entitlement. Furthermore, if there was any evidence that historical claims were not being investigated fairly and/or customers claims were being declined due to mistakes or oversights you had a duty to inform those effected - I believe my initial claim may have been the subject of those failures.

 

I require the payment within fourteen days of your receipt of this letter.

 

Yours faithfully

[SabreSheep]

You could maybe use "Letter before action"

 

Mention that you feel they have treated you unfairly by rejecting your first complaint and therefore have breached their obligations under BCOBS

 

That if you do not receive a positive response to your complaint that you will be forced to take action in the county court to reclaim your losses and any court fees incurred in doing so.

[paulwlton]

You could maybe use "Letter before action"

 

Mention that you feel they have treated you unfairly by rejecting your first complaint and therefore have breached their obligations under BCOBS

 

That if you do not receive a positive response to your complaint that you will be forced to take action in the county court to reclaim your losses and any court fees incurred in doing so.

 

Ill submit LBA if i don't get a cheque within 14 days.

 

Cheers

Edited May 17, 2015 by slick132
formatted quote

[BankFodder]

It's time to ask for the fee back.

 

I wouldn't if I were you.

 

I would send the SAR first. You don't want to rattle them - and also you have no idea what might be revealed in the SAR.

Just hold on for the 40 days. I will be worth it.

[paulwlton]

I wouldn't if I were you.

 

I would send the SAR first. You don't want to rattle them - and also you have no idea what might be revealed in the SAR.

Just hold on for the 40 days. I will be worth it.

 

SAR went Friday. I heed your advice and await the data.

 

Regards

[slick132]

Hi Paul,

 

If it comes to filing a claim, remember the defendant will be :

 

Barclays Bank PLC t/a Barclaycard

1 Churchill Place

London

E14 5HP

 

[SabreSheep]

I would counter argue that the limitation period only applies form when the mistake in law/fact is discovered and that would therefore be the date the CMC were successful in your claim.

[paulwlton]

I would counter argue that the limitation period only applies form when the mistake in law/fact is discovered and that would therefore be the date the CMC were successful in your claim.

 

 

 

The cause of action is the date of unfair treatment as BF alluded to earlier. The date could be the initial failure to uphold the claim and/or when they failed to compensate me the success fee.