Unfair charges by Barclay's and the FCA's BCOBS

[TobyB1]

I run a small company; I took Barclay's Bank to court as a Micro Enterprise.

Under the FCA Banking: Conduct of business source book (BCOBS or COBS), the BCOBS states that a business with a turnover of under 2,000,000 Euros and fewer than 10 staff is classified as a consumer and to my understanding of the BCOBS has the same rights as such.

 

Initially I was awarded judgement (by default) as Barclay’s didn’t respond to the court in time. But they had it over turned arguing that although we may be a Micro Enterprise, we did not have the same rights as a consumer and thus had no case, therefore the court argued Barclay's would have a strong likelihood of defending the case.

 

As from last week they have 28 days to prepare their fuller defense.

 

Can anyone shed any light on this, do I have consumer rights in this case, has anyone had a similar experience?

[BankFodder]

Welcome to the forum.

 

Please will you post the claim form and also the set-aside application. I think that it is important that people see this and see where you are now.

 

You can redact the details so that you can't be identified.

 

One of the problems about BCOBS and in fact the FCA cobs regulations in general is that they are almost completely unused. There is scarcely any reference to them anywhere. The FOS website avoids dealing with them, you never even talked about on any of the banks websites – although strangely when it was the code of practice (which BCOBS replaced), they were shouting it from the rooftops.

 

What I can tell you is that where we have threatened to bring actions under BCOBS against banks – especially NatWest and also Santander, the settlements have been extraordinary large in order to avoid court action. However, both these actions were bought by private individuals.

 

My sense is that the banks are extremely frightened of getting BCOBS judgements against them. If you got a BCOBS judgement then apart from any compensation that you would get I would recommend that you sent it to the FCA as part of a general complaint.

 

The cobs rules are extremely powerful and yet ordinary individuals don't seem to want to bring actions. Lawyers don't know anything about it. The judges never come across it – and so you have to undertake it carefully and very thoroughly and you will have to explain a lot to the judge.

 

As far as I can make out, BCOBS and the cobs rules in general do not only refer to private persons but also to businesses and micro-enterprises are certainly included.

 

If you follow the links relating to "person" and "private person" in the BCOBS section, you will see that they open up windows in which there are explanations of these terms and it includes micro-enterprises.

https://www.handbook.fca.org.uk/handbook/BCOBS/1/1.html

 

https://www.handbook.fca.org.uk/handbook/BCOBS/Sch/5/5.html

 

This was also my view in an article which I wrote and which was published on the BBC website a few years ago – although I confess that I had forgotten all about it http://www.bbc.com/news/business-19511542.

 

Of course it hasn't been tested in anger – let's hope that I'm right!!!

 

I think that the problem in the set-aside application was that the lawyers didn't understand – or at least they purported not to understand and the judge certainly wouldn't have known anything about it. The judge would being guided by anybody in the court who gave him some information. If you had turned up in court properly armed with the documentation and shown it to the judge then you would have been a much better position.

 

If ever one goes to court, one should always be properly prepared for any eventuality.

 

However, let me say that set-aside applications are almost always granted and so the set-aside in your case was a fairly predictable outcome.

 

The only thing to say is that it would have been better if you had agreed to the set-aside in advance because this would have saved everybody time and trouble and then you could have gone ahead and prepared your case properly.

 

Please post the documents that I have asked for and we can proceed from there.

[TobyB1]

Thanks for your help with this - an absolute minefield, i have attached the original claim form and Barclay's notice of hearing to overturn the Judgement

 

 

[ATTACH=CONFIG]59572[/ATTACH]

Edited September 22, 2015 by citizenB

[TobyB1]

Claims form about to be uploaded

[TobyB1]

Claim form below

Edited September 22, 2015 by TobyB1

[BankFodder]

Thank you. I think that we should see their grounds for setaside as well. Please will you post them

 

From the look of your claim, I think that it needs to be amended quite drastically. The best way to achieve this is to contact them and ask them to consent. If they are mature then they will do this and it will make it easier for everyone. If they want to be childish then you will have to make your application anyway.

Let me say that if they were dealing with a professional firm, they would agree immediately to an amendment - on the first occasion anyway. A lot of these firms treat litigants-in-person very differently.

 

You will need to make your application on a form N244 and it will be best to accompany it with a suggested draft amendment

[citizenB]

I unapproved the document in post # 3 as identifiable information was left. I will amend document and repost so you need do nothing.

 

Document edited and returned to post.

Edited September 22, 2015 by citizenB

[TobyB1]

More information from defendant

[BankFodder]

Good. Now you need to go to the court services website and download a form N244. This is the application notice which is used in most cases where any request has to be made of the court.

 

We will also have to draft an amended particulars of claim which sets out your case and also your status to bring an action under BCOBS rather more clearly.

 

Because the judge will never of heard of BCOBS before, we will have to lay out fairly carefully so that it is properly explained.

 

As a matter of courtesy and also to show a level of maturity in these things I suggest that we let the solicitors for the bank know about this in advance and provide a copy and invite their objections.

 

If they want to play like children, they will find that they have no one to play with.