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Shareholder as consumer - claim against bank (live case)


anthonyfca
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DISP 2.7.6

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

 

For the shareholder to be an eligible complainant it must also have a complaint which arises from matters relevant to one or more of the following relationships with the bank.

 

The shareholder must have (or had) a relationship with the bank and the complaint must arise from a matter relevant to that relationship.

 

(1) the shareholder is (or was) a customer or payment service user, of the respondent;

 

(2) the shareholder is (or was) a potential customer or payment service user, of the respondent;

 

(3) the shareholder is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

 

(4) the shareholder is a beneficiary of, or has a beneficial interest in, a personal pension scheme or stakeholder pension scheme;

 

(5) the shareholder is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

 

(6) the shareholder is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

 

(7) the shareholder relied in the course of his business on a cheque guarantee card issued by the respondent;

 

(8 )the shareholder is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

 

(9) the shareholder is the recipient of a banker's reference given by the respondent;

 

(10) the shareholder gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

 

(11) the shareholder is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

 

(12) the shareholder is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

 

(13) the shareholder is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

 

(14) (where the respondent is a dormant account fund operator) the shareholder is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

 

As you have confirmed, the shareholder (the complainant) does not have any of these relationships with the bank. This must mean that a complaint cannot arise from a relationship that did not exsist.

 

It does look that straight forward

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me Ok, so who does fulfil the requirements of 2.7.6?

you complainant that has a complaint which arises from matters relevant to one or more of the 14 relationships

define complainant

 

This is from the FSA Handbook

http://fsahandbook.info/FSA/glossary-html/handbook/Glossary/C?definition=G197

 

complaint

(1) (in COAF) any expression of dissatisfaction about the manner in which the FSA has carried out its statutory functions other than its legislative functions.

 

(2) (in DISP, except DISP 1.1 and the complaints handling rules and the complaints record rule in relation to MiFID business) any oral or written expression of dissatisfaction, whether justified or not, from, or on behalf of, a person about the provision of, or failure to provide, a financial service, which:

(a) alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience; and

(b) relates to an activity of that respondent, or of any other respondent with whom that respondent has some connection in marketing or providing financial services or products, which comes under the jurisdiction of the Financial Ombudsman Service.

 

(3) (in DISP 1.1 and the complaints handling rules and the complaints record rule only in relation to MiFID business) any oral or written expression of dissatisfaction, whether justified or not, from, or on behalf of, a person about the provision of, or failure to provide, a financial service, which alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience.

 

(4) (in DISP) reference to a complaint includes:

(a) under all jurisdictions, part of a complaint; and

(b) under the Compulsory Jurisdiction, all or part of a relevant complaint.

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2.7.6 relates to the relationship between the shareholder as the complainant and the bank, it does not by the meaning given to consumer relate to the relationship between the limited company and the bank as the limited company is not the complainant.

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As you have confirmed, the shareholder (the complainant) does not have any of these relationships with the bank. This must mean that a complaint cannot arise from a relationship that did not exsist.

 

It does look that straight forward.

 

If it was straightforward there would be no definitions at 2.7.3 which define the complainant including the other person as defined in 2b having the relationship.

 

"Define complainant"

Your response includes shareholders and anyone else who is unhappy regardless.

Definitions of eligible complainant are of course at 2.7.3. and include the indirect other person. By virtue of 2.7.3 glossary consumer 2b the relationship can be with this other person and not directly with the consumer.

I'll rewrite 2.76 with that in mind if you like, to see what that looks like.

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Each point within 2.7.6 specifically states complainant and not consumer. The complainant is the entity making the complaint

 

The word "complainant" is used to include all eligible complainants defined at 2.7.3Use of the word "complainant" does not exclude consumers and everyone else defined in 2.7.3, it includes them, indeed refers to and means them as well as anyone else. It is meant to be vague because the section is about the services relationship, not the complainant who has already been defined in order to get this far.

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2.7.3 and 2.7.6 both have to be complied with, it is not an either / or situation. You cannot comply with 2.7.6 and succeed if you do not also comply with 2.7.3.

 

2.7.3 defines eligible complainants

2.7.6 defines relationships that can be the subject of complaint

 

You cannot have one without the other. And "2b" allows second hand relationships.

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Each point within 2.7.6 specifically states complainant and not consumer. The complainant is the entity making the complaint

 

The word "complainant" is used to include all eligible complainants defined at 2.7.3Use of the word "complainant" does not exclude consumers and everyone else defined in 2.7.3, it includes them, indeed refers to and means them as well as anyone else. It is meant to be vague because the section is about the services relationship, not the complainant who has already been defined in order to get this far.

 

The word complainant is not used to include all eligible complainants definded in 2.7.3. I have read it a few times today and I can't see where that is implied directly or in directly. I say this because 2.7.6 states:

 

"To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent"

 

A complainant is simply someone with a complaint. Someone that is not a consumer or a micro-enterprse can be a complainant, but would be a non eligible complainant as a result of 2.7.3.

 

It is a two stage test.

 

And "2b" allows second hand relationships.

 

which is why direct substitution in 2.7.6 can fail to give the correct result.

 

2b defines a consumer and not a complainant.

 

None of the 14 relationships apply to the shareholder.

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The complainant is the shareholder as it is the shareholder making the complaint. Therefore in relation to 2.7.6, the word complainant can be rightly substitued for the term shareholder

 

(1) the shareholder is (or was) a customer or payment service user, of the respondent;

 

(2) the shareholder is (or was) a potential customer or payment service user, of the respondent;

 

(3) the shareholder is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

 

(4) the shareholder is a beneficiary of, or has a beneficial interestlink3.gif in, a personal pension scheme or stakeholder pension scheme;

 

(5) the shareholder is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

 

(6) the shareholder is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

 

(7) the shareholder relied in the course of his business on a cheque guarantee card issued by the respondent;

 

(8 )the shareholder is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

 

(9) the shareholder is the recipient of a banker's reference given by the respondent;

 

(10) the shareholder gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

 

(11) the shareholder is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

 

(12) the shareholder is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

 

(13) the shareholder is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

 

(14) (where the respondent is a dormant account fund operator) the shareholder is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

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The complainant is the shareholder as it is the shareholder making the complaint. Therefore in relation to 2.7.6, the word complainant can be rightly substitued for the term shareholder

 

(1) the shareholder is (or was) a customer or payment service user, of the respondent;

 

(2) the shareholder is (or was) a potential customer or payment service user, of the respondent;

 

(3) the shareholder is the holder, or the beneficial owner, of units in a collective investment scheme and the respondent is the operator or depositary of the scheme;

 

(4) the shareholder is a beneficiary of, or has a beneficial interestlink3.gif in, a personal pension scheme or stakeholder pension scheme;

 

(5) the shareholder is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;

 

(6) the shareholder is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);

 

(7) the shareholder relied in the course of his business on a cheque guarantee card issued by the respondent;

 

(8 )the shareholder is the true owner or the person entitled to immediate possession of a cheque or other bill of exchange, or of the funds it represents, collected by the respondent for someone else's account;

 

(9) the shareholder is the recipient of a banker's reference given by the respondent;

 

(10) the shareholder gave the respondent a guarantee or security for:

(a) a mortgage;

(b) a loan;

© an actual or prospective regulated consumer credit agreement;

(d) an actual or prospective regulated consumer hire agreement; or

(e) any linked transaction as defined in the Consumer Credit Act 1974 (as amended);

 

(11) the shareholder is a person about whom information relevant to his financial standing is or was held by the respondent in operating a credit reference agency as defined by section 145(8 )of the Consumer Credit Act 1974 (as amended);

 

(12) the shareholder is a person :

(a) from whom the respondent has sought to recover payment under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt-collecting as defined by section 145(7) of the Consumer Credit Act (1974) (as amended); or

(b) in relation to whom the respondent has sought to perform duties, or exercise or enforce rights, on behalf of the creditor or owner, under a regulated consumer credit agreement or regulated consumer hire agreement in carrying on debt administration as defined by section 145(7A) of the Consumer Credit Act (1974) (as amended);

 

(13) the shareholder is a beneficiary under a trust or estate of which the respondent is trustee or personal representative;

 

(14) (where the respondent is a dormant account fund operator) the shareholder is (or was) a customer of a bank or building society which transferred any balance from a dormant account to the respondent.

 

1 The shareholder (the complainant) is not

2 The shareholder (the complainant) is not and was not

3 The shareholder (the complainant) is not

4 The shareholder (the complainant) is not

5 The shareholder (the complainant) is not

6 The shareholder (the complainant) is not

7 The shareholder (the complainant) did not

8 The shareholder (the complainant) is not

9 The shareholder (the complainant) is not

10 The shareholder (the complainant) did not

11 The shareholder (the complainant) is not

12 The shareholder (the complainant) is not

13 The shareholder (the complainant) is not

14 The shareholder (the complainant) is not and was not

 

As the shareholder (the complainant) did not have any of the relationships detailed within 2.7.6 it is not an eligible complainant.

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Yes, but the eligible complainant did, being eligible via 2.7.3 Consumer def'n 2b.

None of the 14 relationships apply to the shareholder.

 

That's because complainant has to be as per 2.7.3 and in the case of shareholder add consumer glossary 2b.

 

Rewriting the rules in post 89 does not work, because it excludes everything in 2.7.3 - it's not as simple as that.

 

The word complainant is not used to include all eligible complainants definded in 2.7.3. I have read it a few times today and I can't see where that is implied directly or in directly. I say this because 2.7.6 states: .....

 

"complainant" includes all complainants, including everyone in 2.7.3 It is neither implied directly or indirectly because it is an all inclusive word and nothing needs to be implied because it is explicit in itself.

 

So. Thanks for taking the immense time.

Edited by anthonyfca
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