AC2007 V Bank of Scotland

[Dusary]

I'd guess that there are (at least) two possible ways forward:

 

1. Stick at it - Write back with supporting evidence (I know you have already supplied them with it - but, from my experience the right hand often doesn't know what the left hand has done).

 

2. It's astonishing that they use the phrase: "regardless of any Court finding...." Is HBoS really saying that they are totally above the law? I think that the Ombudsman might have something to say about their cavalier manner.

[AC2007]

UPDATE 29/04/08

 

Reply to ombudsman.

 

Dear Mr XXXX,

 

Following on from your letter dated 17th April stating that you do not believe that you have the power to deal with the case because of time limits.

 

You quote

“This is because our rules say that, unless there are exceptional circumstances or if the bank does not object, we cannot consider a complaint which has been brought:

 

- more than six years after the event complained of; or

- (if later) more than three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he or she had cause for complaint.

 

In your case the event complained of is the levying of bank charges between 1993 and 1999 and it is understood both accounts were closed subsequently. You first complained to Bank of Scotland in November 2007 and to us in January 2008. So, in regards to the charges incurred before 1999, it is apparent that you brought the complaint more than six years after the events which gave rise to the complaint”

 

I believe after having discussed this with my solicitor, it is my understanding that under the current law found in the Prescription and Limitation (Scotland) Act 1973 (as amended). The provisions on negative prescription set out when contractual rights and obligations are extinguished. There are two time periods: the short five-year period and the 20-year long-stop period. Both run from the date on which the obligation became enforceable and this will vary depending upon the nature of the obligation.

A claim for breach of contract generally becomes enforceable when there is a concurrence of liability (i.e. the breach) and actual loss. The pursuer then has five years to make a claim. However, given that a pursuer may not realise that they have suffered a loss until some time after the breach (e.g. where there is a latent defect in a building), the five-year period will not start until the pursuer becomes aware, or could with reasonable diligence have become aware, of that loss. This qualification is subject to the 20-year long-stop which applies irrespective of the pursuer’s knowledge.

 

As I did not know until the publicity last year regarding the charges then it can be assumed that I did not become aware of a breach until that time.

 

Also having read part XVI of the Financial Services and Markets Act 2000, I can find no mention of time limits and given the grey areas with regards to the interpretation of said time limits, I would hope that this would mean that there are “exceptional circumstances” in this case and that the FOS can in fact continue to try and reach an amicable settlement to this case that is suitable to both parties without the need for a formal investigation.

 

If you need any further information I can be contacted on 0780 XXX XXXX and I look forward to your assistance in resolving this matter.

 

 

 

Yours sincerely,

 

 

AC2007

[AC2007]

UPDATE 08/05/08

 

Reply from FOS

 

Dear Mr AC2007

Your complaint about Bank of Scotland plc

Thank you for your letter dated 29 April 2008.

Your complaint has been passed to me for a further review.

I appreciate your comments about legislation relating to time limits for commencing legal action. These may be relevant should you wish to start a legal action against Bank of Scotland to reclaim the charges it applied to your account in the period 1993 to 1999, but you would need to obtain appropriate legal advice on this matter.

Our role is to resolve individual disputes between consumers and financial businesses, where consumers think they have lost out. We provide an informal alternative to the civil courts and, as my colleague explained in his letter dated 17 April 2008, we are bound by the rules under which we operate.

The rules are set by the industry regulator, the Financial Services Authority (FSA) and are set out in the FSA Handbook. You can find the rules on the FSA website http://fsahandbook.info/FSA/html/handbook/DISP72. The rules are known as 'DISP' rules; D!SP rule 2.8.2R states "The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:

(2) more than:

(a) six years after the event complained of; or (if later)

(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;

© unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received;

unless:

(3) in the view of the Ombudsman, the failure to comply with the time limits was as a

result of exceptional circumstances; or (5) the respondent has not objected to the Ombudsman considering the complaint."

 

 

Charges were applied to your account between 1993 and 1999; it seems to me reasonable to assume you would have received statements for your account detailing the charges being applied. In my view, if you had been unhappy about the charges, you would appear to have been able to have raised your complaint at the time. I have not seen any evidence to suggest you raised your concerns before making your complaint to Bank of Scotland in 2007.

Bank of Scotland has confirmed it objects to this service considering your complaint.

The only remaining issue to consider is whether there are any exceptional circumstances which may have prevented you from making your complaint within the time limits set out above. As Mr Milns pointed out in his letter of 17 April 2008, the ombudsman would not usually consider you being unaware of the time limits as an exceptional circumstance. I am not persuaded that your reference to the interpretation of time limits is sufficient to be regarded as exceptional circumstances - in my opinion the time limits set out in the rules are clear.

I have reviewed the additional information you have supplied but, even after taking it into account, I still consider it unlikely that more investigation would result in a different outcome. Accordingly, I must confirm my view that your complaint does not appear to be one we are able to consider.

However, if you still feel that I have misunderstood or overlooked anything which would make a difference, please let me know by 22 May 2008 and my findings will be reviewed. But if I have not heard from you by then I will assume that you do not want us to take your complaint any further and will close my file accordingly.

I would remind you that any rights you may have to take legal action against Bank of Scotland have not been affected by our consideration of your complaint.

Yours sincerely

 

Adjudicator

 

 

 

This seems as though it is going to have to be settled in court:confused:

[AC2007]

UPDATE 18/05/08

 

Looks like this may be my last chance with the FOS before having to raise proceedings in the Court of Session:-x

 

Dear Mr Adjudicator,

 

Thank you for your letter dated 8th May 2008.

 

In your letter you state that you do not believe that the FOS can investigate my complaint because the rules set out in the FSA handbook states;

 

"The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:

(2) more than:

(a) six years after the event complained of; or (if later)

(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;

© unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received;

unless:

(3) in the view of the Ombudsman, the failure to comply with the time limits was as a result of exceptional circumstances; or

(5) the respondent has not objected to the Ombudsman considering the complaint."

 

You go on to state;

 

“Charges were applied to your account between 1993 and 1999; it seems to me reasonable to assume you would have received statements for your account detailing the charges being applied. In my view, if you had been unhappy about the charges, you would appear to have been able to have raised your complaint at the time. I have not seen any evidence to suggest you raised your concerns before making your complaint to Bank of Scotland in 2007.”

 

 

I can confirm that I did indeed receive, and I am still in possession of, statements from the bank throughout the times in question, and although I was unhappy with the charges as not only did it have a serious effect on my business at the time but also my health, I did not realise until February 2007 that the charges in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law.

 

In these circumstances I believe that under rule 2.8.2R (2)(b)

(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;

 

I am well within the time limits of reasonably becoming aware that I had cause for complaint, as before that date I did not realise that I could challenge the charges as they did not reflect the true cost to Bank of Scotlandof my account going into unauthorised overdraft.

I believe that the exceptional circumstances which may have prevented me from making my complaint are nothing to do with the time limits of when the actions occurred, but more about when I became aware that the charges were unlawful. I would draw your attention to the terms of the contract which the bank agreed to at the time that I opened my account. It is an implied term of that contract that the bank would conduct themselves lawfully and in a manner which complies with UK law. As I did not become aware until February 2007 that the bank were not conducting themselves in such a manner, I therefore believe that in contacting the bank in August for information about the accounts and complaining about the unfairness of the charges in November that I acted within the time constraints set out in the above ruling, as I can not see how I could have complained to the bank before becoming aware of the unfairness of the charges.

 

I would hope that you will reconsider my request for the FOS to try and resolve this matter and that you can use your influence to get the bank to try and negotiate a settlement that is satisfactory to both parties as I would prefer this outcome than having to raise proceedings with the Court of Session in Edinburgh, which will prove costly and time consuming to both parties, but one which I am willing to pursue.

If you need any further information I can be contacted on 0780 XXX XXXX and I look forward to your assistance in resolving this matter.

 

 

 

Yours sincerely,

AC 2007

 

 

Any other advice would be gratefully appreciated.

 

[Bigmac versus]

Nothing to add to what you are doing except when you say

"but more about when I became aware that the charges were unlawful"

 

The charges havent been found to be unlawful YET.

If they do then this may change things but until then the FOS will take the six year rule every time.

 

I hope they accept your complaint I really do.