Barclaycard decline then uphold complaint.

[BankFodder]

I presume you would recommend a sec 140 claim as well as pleading breach of COBS?

 

I don't think that this is a good idea.

The amount of money is so small, I think that the target should be to get a COBS judgment. This would have a very significant effect

[paulwlton]

I don't think that this is a good idea.

The amount of money is so small, I think that the target should be to get a COBS judgment. This would have a very significant effect

 

You think a claim for a breach of the sixth principle could be successful?

[BankFodder]

In principle, yes - but subject to the SAR, yes.

I also think that s.140 is far more complicated

[Mike_hawk]

I presume you would recommend a sec 140 claim as well as pleading breach of COBS?

 

I probably wouldn't, not because I don't believe it could ever succeed, more a question of the complexity of arguing the case for very limited return. Perhaps [on a commercial basis] it would be more inclined to roll over at the earliest opportunity if both 140 and COBS were plead. There's always an inherent risk to the business that a dj will find in your favour and with a very high degree of certainty that any app to strike out would fail it would have to invest more than the value of the claim to bring it to trial. Not sure if a judgment would be on the cards, would imagine it will look to compromise the case at the first opportunity.

 

If you think its right for you to test the 140 route Plevin may be useful, different circumstances to yours but it does indicate the courts will accept a wider 140 argument than previously held in the Harrisons case http://www.bailii.org/uk/cases/UKSC/2014/61.html oddly the second line of argument [iCOB in this instance] failed but some weight was added by the industry codes of practice in determining the decision

[paulwlton]

I probably wouldn't, not because I don't believe it could ever succeed, more a question of the complexity of arguing the case for very limited return. Perhaps [on a commercial basis] it would be more inclined to roll over at the earliest opportunity if both 140 and COBS were plead. There's always an inherent risk to the business that a dj will find in your favour and with a very high degree of certainty that any app to strike out would fail it would have to invest more than the value of the claim to bring it to trial. Not sure if a judgment would be on the cards, would imagine it will look to compromise the case at the first opportunity.

 

If you think its right for you to test the 140 route Plevin may be useful, different circumstances to yours but it does indicate the courts will accept a wider 140 argument than previously held in the Harrisons case http://www.bailii.org/uk/cases/UKSC/2014/61.html oddly the second line of argument [iCOB in this instance] failed but some weight was added by the industry codes of practice in determining the decision

 

The judgment confirms what seems to be obvious - COBS requires a breach of duty to succeed and, sec 140© is to be determined on the facts with no restrictions.

 

Although I'd prefer to include both COBS and sec 140© it may be best to stick to breach of COBS as it would be a straight forward claim.

 

Regards

[Mike_hawk]

Thinking out loud for a mo, just wondering if it would be sensible to touch on the subject of 140 within any claim but without the specifics, perhaps a line of text directly from the Act worked into your poc. Its common ground that where a cause is alluded to at the initial filing it will generally be allowed to progress the argument at trial [just in case the COBS line of attack falls over].

[paulwlton]

If you check out page 14 it defines: subject to defences and other incidents.

 

Links I post don't appear to work?

 

 

http://www.bgja.org.uk/wp-content/uploads/2014/02/Powell.pdf

 

Live link - http://www.bgja.org.uk/wp-content/uploads/2014/02/Powell.pdf

Edited May 25, 2015 by slick132
added link

[Mike_hawk]

Whereas the burden in s140 is reversed to the defendant, which is why my thinking is that if you are set on filing a claim the mere mention of the relationship should overcome any early attempt to strike out and 'should' encourage it to compromise any case. I appreciate others on here have other views but I cannot find any instance where a breach of COBS alone can provide cause.

 

If you look back on Madpriests old thread which was viewed as a win for BCOB's the underlying cause was within S.66 of the PSR 2009

[Guest]

some recentish s140 info, if not seen already. refs to the Plevin v Paragon, and Conlon, re supreme court.

http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Financial_institutions/Unfair_relationships_what_does_the_future_hold

 

 

Plevin SC case - http://www.bailii.org/uk/cases/UKSC/2014/61.html

[paulwlton]

Thinking back when BC investigated my original claim in 2013 I never received a phone call for further information however, once the CMC got involved BC phoned me and asked further questions. It'll be interesting to find out how BCs questionnaire differed to the CMCs and why BC failed to request further information by phone in 2013. - a possible breach of the second principle?

 

Regards

[paulwlton]

some recentish s140 info, if not seen already. refs to the Plevin v Paragon, and Conlon, re supreme court.

http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Financial_institutions/Unfair_relationships_what_does_the_future_hold

 

 

Plevin SC case - http://www.bailii.org/uk/cases/UKSC/2014/61.html

Thanks for this.

[paulwlton]

Thinking out loud for a mo, just wondering if it would be sensible to touch on the subject of 140 within any claim but without the specifics, perhaps a line of text directly from the Act worked into your poc. Its common ground that where a cause is alluded to at the initial filing it will generally be allowed to progress the argument at trial [just in case the COBS line of attack falls over].

 

Wasn't a couple of arguments used when we all claimed our bank charges back: unfair contract terms, sales of goods act ect. I don't think it would complicate matters if sec 140 was used in the alternative as BF suggested earlier.

[Mike_hawk]

I think you'd have to [bring s.140 into it], I thought you were going to dive in with COBS alone and get turned over so I was trying to nudge you toward including the relationship but in a more generalised way. You could state that by its actions it created an unfair relationship between the parties without having to quote chapter and verse of the act itself.

[paulwlton]

I think you'd have to [bring s.140 into it], I thought you were going to dive in with COBS alone and get turned over so I was trying to nudge you toward including the relationship but in a more generalised way. You could state that by its actions it created an unfair relationship between the parties without having to quote chapter and verse of the act itself.

 

You reconsidered your position now on limitation as you initially thought a sec 140 claim would be time barred?

[Mike_hawk]

Not exactly, but I get the impression you want to file a claim so its more a question of upping the percentages for a favourable outcome. I think [if it gets as far as trial] it will argue the cause accrued on the date of inception/first application of PPI. The argument gets a bit circular and revolves around the cause and effect of the unfair relationship........ if the PPI complained of was applied in say 2006, would/could a future event in 2013 [its initial rejection] be directly linked to the 2006 event and would it now be barred by limitation? I don't know the answer in your case and I don't believe anyone could [know] with any certainty which way the judge on the day would be swayed but I'd have to guess for a relatively low value claim the other side wouldn't want to risk going to the expense of defending when it can't be sure either.

[Guest]

this was the conlan ca case http://www.bailii.org/ew/cases/EWCA/Civ/2013/1658.html

conlan was settled prior to the SC plevin. this is a citation, but cant find it atm, Conlon v. Black Horse Limited [2014] UKSC 0038

some poss relevant (older) cases here, if of any use

http://david-bowden.co.uk/reportedCases-Detail.html

[Mike_hawk]

Paul, here's my thoughts......... would bell you but lost your number a while back when my old mobile packed up

 

I understood you wanted to file a claim and that you don't believe the FOS is fit for purpose/ suitably equipped to either understand or adequately compensate

 

The idea that B/I/COBS provides cause does not sit right [with me at least] Green http://www.bailii.org/ew/cases/EWCA/Civ/2013/1197.html shows us that for the court to entertain cause/s framed in conduct there must be a statutory duty which underpins the claim, the principles contain no such duty merely an obligation to act in a certain way when carrying out an activity where it is bound by a statutory instrument.

 

s.140 is a stat requirement within the CCA, it provides a cause of action with the benefit of reversing the burden of proof to the defendant. Ergo; if you decide to plead s.140 and compound the cause with COBS it is obliged to show [even in the first instance] how it acted fairly......... 'if' you could show that there is any doubt in the veracity of its argument the court should be bound by the principles within COBS assuming you could show it that the other side was performing a statutory duty....... does s.140 interpret within ICOBS method of PPI redress?? Hence the complexity of the argument if it went to trial. The primary benefit in the use of s.140 is that it would have to show all of its cards to dispose of the case in any part 23 app to strike out your claim.... I really can't envisage it wanting to open that can of worms when it cannot recover its costs or use those [costs] as leverage on you to discontinue.

 

I noted Plevin a few days ago and Ford has posted the same again as the SC has suddenly realised it was royally screwed over on the Harrison case in order for the defendant to achieve a commercial interest in a bad judgment........ However; the courts have now realised that the intent of parliament was to provide a much wider cause within s.140 and far more protection for the consumer than the 'bad' law it prescribed in the appeal previously allowed but compromised to the tune of £4.2M.

 

I honestly think BF has erred in his commitment to COBS, I cannot for the life of me find any cause within the principles.

 

For a small claim its really a matter of throwing enough mud and waiting to see what sticks and how eager the other side are prepared to compromise the case

[paulwlton]

Paul, here's my thoughts......... would bell you but lost your number a while back when my old mobile packed up

 

I understood you wanted to file a claim and that you don't believe the FOS is fit for purpose/ suitably equipped to either understand or adequately compensate

 

The idea that B/I/COBS provides cause does not sit right [with me at least] Green http://www.bailii.org/ew/cases/EWCA/Civ/2013/1197.html shows us that for the court to entertain cause/s framed in conduct there must be a statutory duty which underpins the claim, the principles contain no such duty merely an obligation to act in a certain way when carrying out an activity where it is bound by a statutory instrument.

 

s.140 is a stat requirement within the CCA, it provides a cause of action with the benefit of reversing the burden of proof to the defendant. Ergo; if you decide to plead s.140 and compound the cause with COBS it is obliged to show [even in the first instance] how it acted fairly......... 'if' you could show that there is any doubt in the veracity of its argument the court should be bound by the principles within COBS assuming you could show it that the other side was performing a statutory duty....... does s.140 interpret within ICOBS method of PPI redress?? Hence the complexity of the argument if it went to trial. The primary benefit in the use of s.140 is that it would have to show all of its cards to dispose of the case in any part 23 app to strike out your claim.... I really can't envisage it wanting to open that can of worms when it cannot recover its costs or use those [costs] as leverage on you to discontinue.

 

I noted Plevin a few days ago and Ford has posted the same again as the SC has suddenly realised it was royally screwed over on the Harrison case in order for the defendant to achieve a commercial interest in a bad judgment........ However; the courts have now realised that the intent of parliament was to provide a much wider cause within s.140 and far more protection for the consumer than the 'bad' law it prescribed in the appeal previously allowed but compromised to the tune of £4.2M.

 

I honestly think BF has erred in his commitment to COBS, I cannot for the life of me find any cause within the principles.

 

For a small claim its really a matter of throwing enough mud and waiting to see what sticks and how eager the other side are prepared to compromise the case

 

In relation to sec 140 CCA and limitation - one is time barred six years after the relationship has ended. I can't see my claim being struck out because although the contract ended in 2008 there was contact from BC in 2013 and the subsequent investigation of mis-selling appears to establish a continued relationship.

 

Not sure if your interpretation of Green is correct. Green argued that even though the claim was time barred and he had no redress pursuant sec 150 he was asking the court to imply COBS rules into common law duty.

 

I continue to believe a claim inclusive of COBS and sec 140 would achieve a result.

 

Regards

Edited May 30, 2015 by paulwlton
spelling grrrrrr

[Mike_hawk]

Maybe its my style of writing thats causing the confusion here??

 

Green & Rowley.......I've continually stated that there is no common law duty attached to COBS....... you cannot sue on that basis alone, there must be a statutory requirement within an Act that underpins COBS.

Any claim in COBS alone would very likely fail before it gets off the ground. The reason I have posted Green & Rowley has little to do with the uncontested bar [although if you look at your own case it could have similar implications - the relationship persisted but the original action gave effect to the bar] it does however provide the judiciary view of what would be required to provide any relief in COBS, from that you can extrapolate the judgment to other actions obliged by other Acts/Stat instruments.

 

I stated that you'd need both COBS and a regulated activity [CCA s.140 in this instance] although I'm not confident they would achieve a result at trial, they should provide for a result in compromise but that isn't exactly what you are after. A claim of relatively low value should force its hand to consent, I think if it had costs on its side [Fast or multi track] it might be a different matter and one which would be very complex in argument but I'd be cautious of the putting too much time and money into a claim that may not have any legs.

[paulwlton]

Maybe its my style of writing thats causing the confusion here??

 

Green & Rowley.......I've continually stated that there is no common law duty attached to COBS....... you cannot sue on that basis alone, there must be a statutory requirement within an Act that underpins COBS.

Any claim in COBS alone would very likely fail before it gets off the ground. The reason I have posted Green & Rowley has little to do with the uncontested bar [although if you look at your own case it could have similar implications - the relationship persisted but the original action gave effect to the bar] it does however provide the judiciary view of what would be required to provide any relief in COBS, from that you can extrapolate the judgment to other actions obliged by other Acts/Stat instruments.

 

I stated that you'd need both COBS and a regulated activity [CCA s.140 in this instance] although I'm not confident they would achieve a result at trial, they should provide for a result in compromise but that isn't exactly what you are after. A claim of relatively low value should force its hand to consent, I think if it had costs on its side [Fast or multi track] it might be a different matter and one which would be very complex in argument but I'd be cautious of the putting too much time and money into a claim that may not have any legs.

 

But Green was time barred and therefore attempted another route to redress by pleading COBS into common law. Green was precluded from a sec 138 claim whereas I am

not.

 

Could you provide specific reference to why a claim for statutory breach would fail as a damages claim?

 

Just to let you know my brains starting to melt lol,

[SabreSheep]

not sure at all if this ruling helps may be an interesting read regardless

 

http://www.moneysavingexpert.com/news/reclaim/2015/05/court-ruling-could-open-door-for-more-ppi-claims

[Mike_hawk]

But Green was time barred and therefore attempted another route to redress by pleading COBS into common law. Green was precluded from a sec 138 claim whereas I am

not.

 

Could you provide specific reference to why a claim for statutory breach would fail as a damages claim?

 

Just to let you know my brains starting to melt lol,

 

Did say it would make your head go pop

 

Green would have failed regardless of limitation as it lacked in the fundamental test of whether it was undertaking an action where it was bound by statutory duty, Greens counsel attempted to argue that it didn't need to show a stat failing and that FSMA s.150 [now repealed by s.138D] provided for a substantive claim in common law duty of care. The court disagreed as it could find nothing to attach FSMA s.150 to.

 

In essence the required elements for a successful claim in COBS are threefold........#1 - You identify the activity within an Act which the defendant is bound to comply with #2 - You subject that activity to the appropriate rule within B/I/COBS and satisfy your self that by acting in a certain way it has breached the rule #3 - You compound the cause by the use of FSMA s.138D as your alternate [or bolstering] argument for remedy.

 

The statutory duty breach can't be found in either FSMA [it provides the means to claim for breach of rules, not the cause] or COBS [ it provides the rules attached to the statutory duty, not the cause], the cause of action begins outside of the rules

 

CCA s.140 provides you with a starting point [the statutory duty]......... the next thing to do is to test the duty, did it fail you by virtue of 140A(b) or ©? I'd suggest yes to both but I am a tad biased

 

Did it breach a rule within I/COBS.... probably, there's plenty of choices but again, I'm biased

 

Does the compounding of its failure in s.140 and the relevant rules give effect to FSMA s.138D...... probably

 

Now comes the rub, which rules are you going to subject its failing to?

 

The first instant of PPI application [long stop barred]

 

The first instant you claimed redress [no stat duty to redress but in the event it was still required to comply with 140A (b) & © in its communications with you]........ However; it could argue mistake, relevance to a non substantive claim, mitigation [alternate remedy/ FOS factsheet] etc etc.

 

You need to find something within your specific circumstances which would apply and which were/are a duty..... that's why I'm being cautious [maybe overly] that the claim has no legs for trial but may be enough to put the wind up the other side to dispose of the case without incurring unrecoverable costs in the long haul

 

Got your message, out tomorrow [family birthday] but will catch up with you in the week

[paulwlton]

Did say it would make your head go pop

 

Green would have failed regardless of limitation as it lacked in the fundamental test of whether it was undertaking an action where it was bound by statutory duty, Greens counsel attempted to argue that it didn't need to show a stat failing and that FSMA s.150 [now repealed by s.138D] provided for a substantive claim in common law duty of care. The court disagreed as it could find nothing to attach FSMA s.150 to.

 

In essence the required elements for a successful claim in COBS are threefold........#1 - You identify the activity within an Act which the defendant is bound to comply with #2 - You subject that activity to the appropriate rule within B/I/COBS and satisfy your self that by acting in a certain way it has breached the rule #3 - You compound the cause by the use of FSMA s.138D as your alternate [or bolstering] argument for remedy.

 

The statutory duty breach can't be found in either FSMA [it provides the means to claim for breach of rules, not the cause] or COBS [ it provides the rules attached to the statutory duty, not the cause], the cause of action begins outside of the rules

 

CCA s.140 provides you with a starting point [the statutory duty]......... the next thing to do is to test the duty, did it fail you by virtue of 140A(b) or ©? I'd suggest yes to both but I am a tad biased

 

Did it breach a rule within I/COBS.... probably, there's plenty of choices but again, I'm biased

 

Does the compounding of its failure in s.140 and the relevant rules give effect to FSMA s.138D...... probably

 

Now comes the rub, which rules are you going to subject its failing to?

 

The first instant of PPI application [long stop barred]

 

The first instant you claimed redress [no stat duty to redress but in the event it was still required to comply with 140A (b) & © in its communications with you]........ However; it could argue mistake, relevance to a non substantive claim, mitigation [alternate remedy/ FOS factsheet] etc etc.

 

You need to find something within your specific circumstances which would apply and which were/are a duty..... that's why I'm being cautious [maybe overly] that the claim has no legs for trial but may be enough to put the wind up the other side to dispose of the case without incurring unrecoverable costs in the long haul

 

Got your message, out tomorrow [family birthday] but will catch up with you in the week

 

Your explanation/analysis is probably the correct one.

 

I thought from the outset I'd need to include CCA sec 140.

 

There are no specific rules on rights to remedy/damages etc pursuant sec 140. Indeed, one can achieve a result of unfair relationship without achieving same. That's where COBS and sec 138 remedy comes into play.

 

I now know my plan of attack. Do you see where I'm coming from?

[paulwlton]

Still awaiting data, no acknowledgement of request from BC.

 

I posted my LBA yesterday.

 

Dear sir/Madame

 

Background.

Sometime in the early spring of 2013, I received a letter from Barclaycard (BC) advising that I may have been miss-sold payment protection insurance (PPI). I filled out the application/questionnaire provided and returned it. BC subsequently rejected the clam.

 

In March 2015 I was contacted by a PPI Claims management company (CMC) and I agreed for them to act on my behalf. Their success fee being 30% of redress.

 

A telephone assessment was subsequently arranged by the CMC and I answered questions which appeared analogous to ones used by BC back in 2013, this was then submitted to BC for consideration.

 

On the 24th April 2015 I received a letter from Barclay card confirming that PPI had indeed been miss-sold and a refund of all payments, including associated interest would follow. Barclay card also referred to a previous letter dated 11th May 2013 and apologized for the inconvenience of having to revisit my claim.

 

A week or so later I received a cheque from BC for the sum of £485.69 of which a sum of £190.35 inclusive of interest was paid to the CMCs the agreed success fee.

 

On 27 May 2015 I decided to find out the reason why my original claim was rejected and why the CMCs claim had been successful, so I rang the customer relations contact number included in the letter.

 

For reasons unbeknown I passed the initial security test but, failed the extra security test on several occasions notwithstanding, I have a Barclays mortgage, banking facilities and a Barclaycard.

 

Having failed the extra security test I was advised to go to my local Barclays branch to be identified and they would then discuss the matter; I wasn't happy and after criticizing the system used for security and in accordance with said advice I drove to my local Barclays branch.

 

After being identified, the staff member rang customer relations and confirmed same. To my astonishment BC would only communicate with me through the staff member, this led to a bizarre situation where I was quizzed in front of waiting customers on a matter that should have remained private.

 

To put the icing on the cake I was told that any grievance involving a success fee was not their problem and that I should contact the CMC. I ended the conversation by making reference to the fact the bank was full with a large queue and that the situation was ridiculous.

 

I left the bank feeling embarrassed and stressed.

 

When I returned home I decided to look into the matter further and found that sometime in August 2014 the Financial Conduct Authority had instructed firms they regulate to reassess all PPI claims made in 2012 and 2013 because there was concern that many had been unfairly rejected.

 

Grievance.

I hold the view that BC unfairly rejected my original claim, be it either through mistake, negligence or oversight, I subsequently incurred loss. Furthermore, my experience in subsequent dealings was one of frustration; compounded by the fact I was treat with contempt.

 

In order to settle my grievance I require BC to refund the success fee and pay me compensation for inconvenience and distress. I believe a payment of £500 to be reasonable in this instance. I will allow you fourteen days of your receipt of this letter to comply.

 

Should you refuse/circumvent my request and without further correspondence, I will seek to recover both my financial and non-financial loss in the county court as I believe your behaviour is subject to CCA s.140 (A)© and contrary to relevant principles/rules set out in the conduct of Business Sourcebook (COBS).

 

Yours Faithfully

[BankFodder]

If they are in breach of the SAR, you should also mention that and tell them that your court action will make a claim for breach of the data protection act as well