Tesco Bank - CIFAS Placed 2016 - Advice On How To Handle?

[BazzaS]

22 hours ago, BankFodder said:

Of course if you brought an action then it is quite possible that the bank would simply offer you the money that you are claiming in order to bring an end to the action. This would not affect the CIFAS marker – and you would have to decline the payment and continue the litigation.
The problem with declining an offer which has been made which matches your claim is that you risk the court making an order for costs against you on the basis that you could have saved everybody time and trouble by accepting their money offer.
 

Sue for damages AND a mandatory injunction.

Then they can’t get around it by offering damages alone to bring the case to a close.

[BankFodder]

Of course the action suggested above is entirely possible – it means that you would have to start a part 8 claim and this is far more complicated and most importantly it doesn't put on the small claims track. This means that you would immediately become liable for costs in the event that you lost your action.

If a judge decided that the OP had not been treated unfairly – and that the CIFAS marker was the correct decision, then the case would be lost and the OP would be liable for quite a lot of costs.
As soon as the bank realised that the claim was not on the small claims track, you could be certain that they would invest a lot of money into defending the action – confident that they were racking up costs which would be the liability of the claimant.

So although an injunction would be the ideal situation, it's extremely dangerous. The less risky way to do it is simply to claim for a modest amount of damages and then see what develops from there. Although you wouldn't get an injunction, it might be that the judge would express a view and I think it would be difficult for the bank to ignore that view.
Certainly if a judge considered that the CIFAS marker should not have been applied – then it could open the door to bringing a separate claim for an injunction with a little bit more confidence and considerably less risk

[L33noa]

I've trawled through the BCOBS material which is a mine field in its self! So, I hope I am the right track. As always, your help and guidance is appreciated greatly!

 

I see below possible causes for action.

 

BCOBS 

a. Failure to communicate properly

 FOS found that Tesco took the decision to place the markers and close the account without ever speaking to me.

 

Tesco have acknowledged that they have not acted in compliance with the GDPR in this case as they did not discuss their concerns with me before the CIFAS marker was applied

 

Tesco Bank have accepted that this was not fair and have now changed their process as a result in order to prevent any reoccurrence of this issue.

 

PRIN 2.1 The Principles

A firm must pay due regard to the interests of its customers and treat them fairly.

 

FOS found that Tesco bank did not carry out a sufficient investigation thus not treating me fairly.

 

Tesco have acknowledged that they have not acted in compliance with the GDPR in this case as they did not discuss their concerns with me before the CIFAS marker was applied

 

failure to produce the review which effectively recommended that the marker was not placed against you – was unfair. – Tesco have found that “we’ve not been able to locate a copy of this email”

 

failure to produce new DSAR – Tesco response - “a full new DSAR. Under the GDPR regulations there’s no requirement for us to provide you with information/documentation we’ve already sent”

 

 

BCOBS 5.1 Post sale requirements

5.1.1

 

Failure to follow correct procedure and rules – ICO and FOS findings on unfair treatment

 

Notes;

 

Also, I was thinking surely, they should have made the account dormant it was never used and hadn’t been for well over a year.

 

Tesco permitted a payment to be paid out of the account even though the account was unused for a considerable period and had no pattern of funds going into it. Was irresponsible for the Tesco to pay out against what was essentially a dormant account leading to personal data been processed unfairly resulting in a CIFAS being being filed

[BankFodder]

Good stuff.

Have you familiarise yourself with the steps involved in taking a small claim in the County Court?

[L33noa]

I can see you can submit it online or a paper copy with a fee dependent on the amount of claim

I have set up an account to do it online or is it better to do a paper version? 

[AndyOrch]

Always best on line...more secure...cheaper fee to submit......unless you prefer walking to the Post Office and paying postage everytime you have to submit a document...and there will be a few.

 

Andy

[L33noa]

Morning hope you have had a good weekend

 

What's the next step now for me please @BankFodder

[BankFodder]

As far as I can make out, the only solution left to you is to try and stir it up and the way you would do this would be by starting a small claim in the County Court for breach of their statutory duty under BCOBS.

You should understand that this is not an easy option for you. The bank will rally themselves together to stop this and you may find it rather stressful. It's a rather unconventional approach – and it is pretty experimental.
The idea is that you would bring an action for a very modest sum, say – £50 or something – for the unfair treatment of you in having placed this CIFAS marker on your file – and the way that they have done it.

I can imagine that there would be an attempt to go to mediation and I would suggest that you do so, but your position on the mediation is that you will be prepared to withdraw your action if they withdrew the CIFAS marker and allowed you to reopen your account.
I'm pretty certain that they would offer you the money that you are claiming on the basis that if they did this then they would satisfy your claim and so you had no option but to withdraw. They would tell you that if you refuse to withdraw despite the fact that they had offered you the money that you are seeking, then by insisting on continue the litigation, you would risk being required to pay for unnecessary costs incurred by them – and in fact they would explain this to the judge and asked the judge to award costs against you.

I think I've already explained in this thread that you are entitled to refuse an offer if it is reasonable to do so and your position would have to be to explain to the judge that even though the claim was paid, the unfair treatment – in other words the continuing CIFAS marker and the continuing closure of your account – meant that the unfair treatment was continuing and it is on this basis that you are continuing the claim.

In my view this would be entirely reasonable and this would be good grounds for the judge refusing to award costs against you. However, would depend on the judge and the judge might well take the view that you are trying to sneak a Part 8 claim through using a Part 7 "small claims" process. The Part 8 claim process is a process that you would use to get a court order.
Of course the judge would be correct – because a Part 8 claim is more complicated to bring and the small claims rules don't apply.

However, I would hope that as a litigant in person you would benefit from a certain licence and the judge would be more interested in seeing justice done. In fact if the matter was debated at all in a hearing then you would have to do point out respectfully to the judge that the prime objective is "the interests of justice" and that you are just an ordinary person who has suffered a serious injustice and a serious harm at the hands of the banks procedure.

So, in summary – you would bring a small claim, for a modest amount. Be prepared to refuse an offer of settlement if they won't deal with the substantive issue of the CIFAS marker – in which case you would have to go to a hearing and in which case you would have to be prepared to deal with the risk of having costs awarded against you. If costs were awarded against you because you had refused to withdraw the case on an offer a full settlement of the value of your claim, then your exposure to costs might be as much as £5000 – but I suppose it could be more. It could be less.



 

[L33noa]

that's great thanks I will get onto this today. so to be clear i now go straight to the small claims (which i can do online) and I dont need to send a letter prior to Tesco informing of my intentions? 

[BankFodder]

Note you must observe the pre-action protocol which means that you got to give Tesco's at least 14 days notice that you are going to bring a legal action.

If this is what you want to do then draft letter of claim and post it here and we will have a look.

One of the things that we will eventually have to do is we will have to let them know that we will be requiring that guy – the guy who recommended that the marker should not be placed against you – we will require that he gives provides a statement and gives evidence.

[L33noa]

Quote

 

Dear Sir/Madam

 

Letter of Claim

 

I am writing in compliance with the practice direction on Pre-action conduct with regards to the following matter which have arisen between us:

 

On 10th October 2016 you treated me unfairly by placing CIFAS entries against me with the relevant authorities.

• Tesco Bank have treated me unfairly and not acted in compliance with the GDPR in this case as you did not discuss your concerns with me before the CIFAS marker was applied. 
• Tesco bank did not carry out a sufficient investigation thus not treating me fairly
• Failure to produce the CIFAS review which was unfair.
• Refusal to produce new DSAR requested 16th March 2021.
• It was irresponsible for Tesco to allow the account to be used fraudulently on what was essentially a dormant account. The account was unused for a considerable period of time and had no pattern of funds going into it.
• Tesco Bank have acknowledged that they have not acted in compliance in this case as they did not discuss their concerns with me before the CIFAS marker was applied treating me unfairly.
• Tesco Bank have accepted that this was not fair and have now changed their process as a result in order to prevent any reoccurrence of this issue.
• ICO have considered the information available in relation to this complaint and are  of the view that Tesco Bank have not complied with their data protection obligations.
• Tesco Bank failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied.

This is a breach of your statutory obligation under BCOBS, which require you to treat your customers fairly and to have regard to their interests when making your decisions.

 

Furthermore, you have breached Principles 4 and 6 of the Data Protection Act

 

I am giving you an opportunity to address these concerns within 14 days. If you fail to do so then I shall see you in the County Court and without any further notice.

 

As a result of these matters I am entitled and intend to claim for compensation

 

In addition, I also claim the that the CIFAS markers are removed with immediate effect and erased from my personal records.

 

If you dispute my claim, I can confirm I would be agreeable to mediation and would consider any other system of alternative dispute resolution (ADR) in order to avoid the need for this matter to be resolved by the courts.

 

In this regard, I would invite you to put forward any proposals.

 

I look forward to hearing from you within 28 days. Should I not receive a response to my letter within this time frame then I anticipate that a legal claim will be commenced forthwith

 

Yours sincerely faithfully

 

 

 

[L33noa]

Hi @BankFodderthoughts on proposed letter please? am I on the right track with that?

Many thanks 

[BankFodder]

I have proposed some edits. Please have a look.

You've been through mediation with the FOS – and there is no point in offering it again. In any event, this is a letter of claim and you have to assert exactly what you're looking for and not give other alternatives.

You have suggested 28 days. It's up to you. Normally it would be 14 days.

Please do understand that they won't respond to this or they will simply knock you back. Once you sent this letter, then you will have absolutely to follow through with your threat. If you don't, then that will be the end of the matter.

Also, once again I have to highlight my morning to you that although we will support you completely and frankly I think that you have been treated very unfairly, you certainly will incur their fury and you may be rather shocked at the energy they put into crushing you.


 

[L33noa]

Thanks for the edits I will send today with those proposed edits

so to be clear in my head once the 14 days has passed from date of the letter I submit the claim online

 

I am ready for the fight and want to continue I have battled them for nearly 4 years i don''t want to give up now! 

 

thanks for the support as always 

[BankFodder]

Please will you read up on this forum the steps involved in taking a small claim. I'm sorry to say that the question you asked above suggest that you aren't familiar with the steps. It's very important that you become reasonably self-sufficient on this process. It's not difficult and understanding the way forward will give you confidence in what you do.

 

[L33noa]

these were my notes re the court action I just wanted to make sure wasn't missing anything, 

 

1.     Issue a letter of claim (28^th April) giving 14 days before the issue of the proceedings

         Ø  no response by 13^th May ----> move to Step 2 or…

         Ø  See what response I receive

2.     Claimant sends a claim form using MoneyClaims online on 14th day if no response (13th May)

3.     Defence or an acknowledgement of service must be filed with the Court within 14 days of receiving the claim form

         Ø  If an acknowledgement of service is filed, the Defendant then has 28 days from service of the claim to file a defence.

         Ø  If no acknowledgement of service or Defence is filed within the time permitted an application for judgment in default can be made by the claimant

 

Note:

When the Court receives a defence it will send a copy to the Claimant, the claimant will have 28 days to respond and you will be informed of this on notice form the court.

[The GodMother]

Just commenting as this is interesting. Good luck. 

 

Yes your notes look about right. Make sure you account for postage times for the LoC, and court papers delivery.  As the courts do say 14+2 meaning 2 days for postage. Tho if u have a bank holiday it may include another day. 

[dx100uk]

its 19 days to AOS from the date the court claim is raised -  14+5 days service

they have a total of 33 days to file a defence whereby the date on the claimform is 1 in the count.

[The GodMother]

I just said the couple of days as a example as some courts do a first class service others second for postage. 

 

[BankFodder]

You need to start preparing the draft POC immediately. Don't forget, it may well be quite a complicated case in the end.

[L33noa]

@BankFodderi have attempted a first draft POC please can i get your thoughts , am i on the right lines ? I need to add costs etc but at this stage i wanted to make sue i had the content idea right first many thanks as always  

 

Those sentences in red are the ones I am unsure of the wording or what would have biggest impact I have tried to lok for someguidance here but its difficult to find. 

 

 

IN THE XXX COUNTY COURT

 

 

Between

                                                                                                          Lee XXXXXX - Claimant

  

 

 

and

 

  

 

Tesco Bank - Defendant

 

 

 

 

Particulars of Claim

The claimant Mr Lee XXXXX of United Kingdom

 

The defendant is a firm regulated by the FSA under the Financial Service and Markets Act 2000 and as such is subject to the Banking:Conduct of Business Regulations (BCOB) 2009 which requires among other things that firms treat their customers fairly (R.5.1.1).

The defendant is also subject to the General Data Protection Regulation & The Data Protection Act 2018. Aswell as abiding by National Fraud Database Principles.

 

From 28^th February 2015 – 11^th November 2016 the defendant supplied current account services to the claimant - account reference number Sort code 40-64-20 – Account number 10139362 - subject to contract being the “General Terms and Conditions – Current Accounts and Savings Accounts (including Cash ISA’s) and the implied conditions of contract contained in the Banking:Conduct of Business Regulations (BCOB) 2009 and the Payment Services Regulations 2009.

 

In breach of contract and their statutory duty to the claimant, the defendant acted unfairly in that they:

°       Have not acted in accordance with GDPR regulations as you did not discuss your concerns with me before the CIFAS marker was applied

°       Have not carried out a full and sufficient investigation as found by the Financial Ombudsman service dated 12^th November 2019

°       Failed to demonstrate enough to apply for the CIFAS marker as found by Financial Ombudsman service dated 12^th November 2019

°       Failed to produce under SAR request the CIFAS review document highlighting the decision to place the marker and overrule a previous decision

°       Failed to provide me with a FULL DSAR request

°       Acted Irresponsibly by not recognising “a sudden increase in spending”, (No previous transactions on the account) and “a payment to a new Payee”.

°       Have not acted in compliance to discuss their concerns with me before the CIFAS marker was applied acknowledged by Tesco themselves

°       Have failed to follow their own internal process and procedures as in normal in these cases

°       Have not complied with their data protection obligations as found by Information Commissioner's Office dated 3^RD July 2020

°       Failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied

°       Failed to communicate to the claimant in that The Claimant was unaware of the CIFAS marker for 2 years

°       Failure to communicate to the claimant giving no opportunity for the Claimant to defend and allegations or assist with any enquires or allow the Claimant to report to the Police

°       Failed to meet the National Fraud Database Principles in particular those below:

* Principle 3: Transparency - Subjects have a right to know how data will be used and how any decisions related to them have been made.

* Principle 4: Lawfulness (Searching and filing) - Subjects must only be searched and filed if they have been legally informed of how their data may be used via a Fair Processing Notice

* Principle 4: Lawfulness (Standard of Proof) - Cases filed to the National Fraud Database must be supported by evidence and meet the ‘four pillars’ of the Standard of Proof. The Standard of Proof Pillar 2 has not been met.

That the evidence must be clear, relevant and rigorous such that the member could confidently report the conduct of the Subject to the police.

 

By virtue of the above unfairness the claimant has suffered loss, inconvenience, and defamation.

 

Particulars of loss

Cost of Telephone Calls - £

Cost of Transcription - £

Cost of Postage and Special Delivery £

Cost of Research £

 

Total - £

Particulars of inconvenience

The claimant has had to spend much time in dealing with the defendant by telephone calls & correspondence.

 

Particulars of Defamation

 

The claimant has suffered immense distress as well as being unable to obtain basic credit facilities, the Claimant has had credit facilities removed and cancelled, Insurance products cancelled and has had to decline job opportunities as a result.

 

 

And the claimant claims £XXX compensation for actual loss plus damages not exceeding £XXX for inconvenience to be decided by the court plus damages not exceeding £XXX for defamation plus exemplary damages as the court sees fit plus interest pursuant to s.69 County Courts Act 1984

 

 

I believe that the fact laid out in this particulars of claim are true

 

 

Signed

 

 

 

Date

 

[BankFodder]

I'm just starting to have a look at this

A huge amount of what you put is totally unnecessary. Surely we can summarise this into a small enough paragraph to allow it to fit into the basic moneyclaim limit?

Also, I don't know where you get the defamation stuff from. Leave it out. It lacks credibility, just complicates your life. Deal with one issue at a time

More tomorrow

[L33noa]

Morning as expected no reply from Tesco, tomorrow id the 14th Day (due to bank hol)

 

I have taken note of your amends and this fits into the money claim limit.  I have saved the form ready to send first thing tomorrow. 

 

I will go for claim amount of £500 as this only asks for a £35 fee. 

 

anything else I need to know at this stage?

 

Many Thanks 

[BankFodder]

Please can we see your draft before you send it off

[L33noa]

In breach of contract and their statutory duty to the claimant, the defendant acted unfairly in that they:

·       Have not acted in accordance with GDPR regulations as you did not discuss your concerns with me before the CIFAS marker was applied

·       Have not carried out a full and sufficient investigation as found by the Financial Ombudsman service dated 12^th November 2019

·       Failed to demonstrate enough to apply for the CIFAS marker as found by Financial Ombudsman service dated 12^th November 2019

·       Acted Irresponsibly by not recognising “a sudden increase in spending”, (No previous transactions on the account) and “a payment to a new Payee”.

·       Have not acted in compliance to discuss their concerns with me before the CIFAS marker was applied acknowledged by Tesco themselves

·       Have failed to follow their own internal process and procedures as in normal in these cases

·       Have not complied with their data protection obligations as found by Information Commissioner's Office dated 3^RD July 2020

·       Failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied

·       Failed to communicate to the claimant in that The Claimant was unaware of the CIFAS marker for 2 years

·       Failure to communicate to the claimant giving no opportunity for the Claimant to defend allegations or assist with any enquires or allow the Claimant to report to the Police

·       Failed to meet the National Fraud Database Principles in particular those below:

* Principle 3: Transparency - Subjects have a right to know how data will be used and how any decisions related to them have been made.

* Principle 4: Lawfulness (Searching and filing) - Subjects must only be searched and filed if they have been legally informed of how their data may be used via a Fair Processing Notice

* Principle 4: Lawfulness (Standard of Proof) - Cases filed to the National Fraud Database must be supported by evidence and meet the ‘four pillars’ of the Standard of Proof. The Standard of Proof Pillar 2 has not been met:

That the evidence must be clear, relevant and rigorous such that the member could confidently report the conduct of the Subject to the police.