Gandolfi v NatWest

[MARTIN3030]

I dont want to say too much at this stage-but I had problems getting my own terms and conditions too.

In fact I was unable to get them and the bank said they didnt have them.

It took some homework to unravel-but I was able to draw some conclusions...even without the terms and conditions.

I dont want to give anything away because it will give the banks an upper hand.

Hopefully I can make things more easy to understand soon.When I am able to post up an account-you will get the jist of what I have been saying.

I am not saying it will be beneficial to all-but I am certain it will be for some.

I just ask for a little patience for now.

[MARTIN3030]

Gandolfi can you say whether you have anything in the way of paperwork in relation to the business account ?

Ie letters etc.

[gandolfi]

Gandolfi can you say whether you have anything in the way of paperwork in relation to the business account ?

Ie letters etc.

 

Unfortunately not, I'm afraid. Just statements (originals). There is a slim chance that I could've kept a charges letter in an old batch of monthly receipts buried amongst the paperwork, but I doubt it...

[MARTIN3030]

See what you can find-these will be VERY important

Pm me with what you find.

[gandolfi]

Gandolfi can you say whether you have anything in the way of paperwork in relation to the business account ?

Ie letters etc.

 

Martin - shouldn't it be possible for me to obtain copies of these letters from the bank? There were certainly plenty of them over the years! I asked for all paperwork in my original SAR, but just got statements. Would it be worth asking again for copies of all correspondence under the Data Protection Act - at least for the Personal account, as well as Business if possible? Do they have to provide this regardless of the stay?

 

Who best to write to? The banks? Or Cobbetts?

 

Many thanks,

Gandolfi

 

PS - Thanks steven and elsinore

[gandolfi]

Hi Gandolfi.

 

If you mean charges for returned items, then the bit you want is at page 92, paras 359 to 372, here

 

http://www.judiciary.gov.uk/docs/judgments_guidance/oft_judgment_240408.pdf

 

Els

 

Thanks Elsinore

These paragraphs seem extremely important to me. The Judges conclusion in Paragraph 372 is clear:

 

"372. I therefore accept the OFT’s submission that if a Bank declines to pay upon a Relevant Instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it."

 

This completely undermines the Banks claim to be charging a fee for a service when bouncing cheques etc. Can this argument be used for sole trader Business Accounts as well as Personal?

 

I tried to interpret the paragraphs that follow (373 - 383 Do the Banks supply “services” when they pay upon a Relevant Instruction?) about whether the Banks provide a service when deciding to make an unauthorised payment, but am finding it difficult to understand clearly. Is he saying that they are providing a service but one that is not significantly distinct from the service provided for a normal (in credit) payment...?

 

Trying to nibble away at the arguments....

 

Gandolfi

[Rhia]

I read it that he accepts when the bank return/bounce etc they are NOT providing a service or anything like a service.

 

In other words to it's not a service, therefore a charge and it's only raison d'etre is to make a profit.

[gandolfi]

I read it that he accepts when the bank return/bounce etc they are NOT providing a service or anything like a service.

 

In other words to it's not a service, therefore a charge and it's only raison d'etre is to make a profit.

 

OK, that much is very clear.

But then when the bank does honour a payment, are they providing a service then ? This is the bit I'm unclear about... paragraphs 373-383 in:

http://www.judiciary.gov.uk/docs/jud...ent_240408.pdf

I think he's saying that that isn't an additional service either, but I'm not sure...

 

Gandolfi

[steven4064]

When they honour a payment they are providing a service and they charge you 57p (or whatever). The question is, how come it costs £35 (or whatever) to not make a payment?

[gandolfi]

Just sending off a follow-up SAR for copies of letters and all other documents relating to my accounts - or a statement that they don't have them with an explanation...

 

We'll see what happens....

[MARTIN3030]

Yes you are right in principle,however the banks are saying that they have no records of more historical stuff-in fact many are now refusing to hand over pre 6 year documentation.

Since any request would have to ultimately rely on the bank to supply-then its them you should approach.

If you are seeking these to be disclosed by way of a Court order then it would be Cobblers.

It would do no harm to get something in writing from the Bank to say one way or another that they have them or not.I dont think in the past many banks supplied copies of communications because people doing SARs did not specifically ask for it-so they would simply not bother.They can refuse an open ended request,you would have needed to be specific.ie;

1.Copies of all statements from the account between XXX and XXX

2.Copies of customer screenshots/activity logs.

 

3.Copies of letters sent out to me including charges notifications,revised terms and conditions notifications and general information.

 

4.Details of any activity or operations that required manual intervention,specifically any manual intervention that was performed to process breaches on the account.

 

5.A copy of telephone call logs.

 

6.details of communications with any third parties including in-house collection, and external collection agencies,credit reference agencies and tracing agents in relation to the account.

 

A SAR should be clearly intelligible to the subject,therefore I trust that there will be supporting notes to explain any coded entries or references that may appear in any of the documents requested.

There is a realisation now that letters which would have been sent out informing of charges-and how and when the bank would be taking them,can be used as crucial submissions in your claim.

The banks of course know this too.

You probably would only need to show one or two in any event-since you could reconcile it to your statements and see exactly how it followed on in the same way.

 

Understand all that ?

[photoman]

When they honour a payment they are providing a service and they charge you 57p (or whatever). The question is, how come it costs £35 (or whatever) to not make a payment?

 

Agreed.

 

And don't forget that Business accounts also often have regular monthly or quarterly "service" charges too.

 

In fact this this could all actually be where Business claimants have an advantage over personal account claimants?

The fact that these regular charges for honoured payments are actually indicated by their own admission to cost such low sums is damming when compared to the "costs" incurred for essentially what is the same process but simply in default.

 

I have mentioned this before, and in fact in my own claim Lloyds tried to use the old "we normally provide the claimant with free banking" argument.

 

They soon had egg on their face when I filed a response to defence and reminded them of both the monthly and individual item charges, and I think such a poorly thought out contestation was instrumental in their relinquishing their whole stance and settling my claim.

 

PS: Hello Gandolfi.

Can't recall whether or not I've posted on your thread before (have a felling I have as I get alerts).

Watching your claim, and will contribute as and when I can.

 

PM.

[MARTIN3030]

If I were you I would send another £10.00 since they could argue that they satisfied your last request-if you was not specific in asking for the additional stuff.

For a tenner I would not take the chance of them sending your request back to await the fee.

If they say they cannot comply,then they will send back your tenner in any event,and since you will be accompanying it with the fee-it HAS to be treated as a legitimate request.

 

You could always add in the request something like "I anticipated that I would have been sent copies of documents requested here.I understand that this request may be viewed as a new application,however perhaps you could exercise discretion to waive the fee,given that it has been paid previously.

In the alternative that a further fee is required,I enclose £10.00."

[Rhia]

A SAR sent in the case I am involved with did bring in documents, letters, a sort of running statement of account (but no individual ones) and notes. There were many (the majority) items missing and they were pushed and pushed on a number of occasions and eventually confimed that this was all they held.

 

I would push them again. I was also advised, that in the case of accounts that have been taken to a central debt collecting unit such as Telford, that it's a good idea for ask for all the info from the actual branch you banked with.

 

I was also advised (by an insider) they don't keep letters beyond six years and rely on the notes.

And getting back to the fee for paying items in and out that had crossed my mind to that this is a service you are aware it is...so where DOES that leave the £XX charged for bouncing this and that?

[yourbank]

I don't agree with that Rhia, ie ask for information from the branch where the account was held because the branch would send any paperwork re SAR to Edinburgh to deal with.

[MARTIN3030]

Yes a subject access request has to be dealt with by the data protection officer/compliance officer.

[yourbank]

I need to clarify my post. I said don't send a SAR to branches cos they don't deal with them and the DPA team are based in Edinburgh. lol, note to self, re read posts

[Rhia]

In that case the SAR was dealt with at Telford. I had telephone conversations with the actual compliance officer. Never had any dealings with Edinburgh.

 

Of course they simply might have compliance officers in both locations - rbs compliance and NatWest compliance. Any suggestions?

 

P.S. Note to self too I meant when you send a SAR to wherever we decide as in above ramblings, make sure you ask for any infomation in relation to the branch as well as everything else. Is it tea-time?

[MARTIN3030]

Yes I too had my SAR Dealt with by Telford I seem to recall Joyce Tudor does it ring any bells ? However mine was in 2006 not sure of script now.I would have thought that their Data protection officer was based at the Mound.

[yourbank]

Yes I too had my SAR Dealt with by Telford I seem to recall Joyce Tudor does it ring any bells ? However mine was in 2006 not sure of script now.I would have thought that their Data protection officer was based at the Mound.

lol,

Here is where mine came from:

2nd Floor Business House B

PO Box 1000

Edinburgh

EH12 1HQ

[MARTIN3030]

Seems they have lots of addresses in Edinburgh

 

Banks & Other Financial Institutions in EH12 | Banks & Other Financial Institutions | UpMyStreet

[MARTIN3030]

No chance of looking on the ICO website then;

 

 

"The public register of data controllers is currently unavailable while we carry out essential maintenance work.

Please call the Notification Helpline on 01625 545740 for any queries.

We expect the register to be available again on 10 August 2009."

[steven4064]

I remember Joyce Tudor

[gandolfi]

I remember Joyce Tudor

 

...me too

[elsinore]

Thanks Elsinore

These paragraphs seem extremely important to me. The Judges conclusion in Paragraph 372 is clear:

 

"372. I therefore accept the OFT’s submission that if a Bank declines to pay upon a Relevant Instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it."

 

This completely undermines the Banks claim to be charging a fee for a service when bouncing cheques etc. Can this argument be used for sole trader Business Accounts as well as Personal?

 

Yes but the difficulty will be persuading the Court that there is a 'read across' from personal to business accounts and your arguments will have to be very cogent and persuasive.

 

However, on this specific point the Appeal judges disagreed with Smith J (see para 113 of their judgment)

 

http://www.judiciary.gov.uk/docs/judgments_guidance/abbey-judgment-260209.pdf

 

I'm not sure that this alters Smith's judgment though, because of the way that the appeal judges referred to the matter. It appears that they were making an observation, rather than reversing Smith's judgment. Perhaps somebody with more legal interpretive skills (PT?) could say.

 

Has the Banks' statement of case for the appeal been published? It would be interesting to see if they specifically argued against this part of the original judgment.

 

If you have time I recommend that you read the whole appeal judgment. It summarises the original judgment very clearly and, if you are looking for potential nuggets, it may be easier than ploughing through Smith J's necessarily detailed and complex 400 pages over and over again.

 

Els