Some bank statements are sadly lacking because Once upon a time these checks would appear as “unclear effects” and sometimes “pending transactions”.
I have looked recently (within the last 24-hours) at my own bank statement into which a large cheque has just been paid and it is showing as being available to draw upon. I paid the cheque in Friday afternoon and on Monday it is showing as being available when clearly, it is not. I think it’s a quirk of the banking system.
It will help if I explain how claims in negligence arise.
There needs to be
1. a duty of care
2. the duty of care needs to be breached
3. as a result of the breach there needs to be loss or injury
4. the loss or injury must be as a result of the breach
5. the loss or injury resulting from the breach must be reasonably foreseeable.
In order for there to be a claim in negligence, all 5 heads have to be satisfied.
Although a party may be able to opt out of negligence claims in respect of damage to property by having a contract or disclaimer, it is not possible to opt out of personal injury or death as a result of negligence.
The relevant statute is the Unfair Contract Terms Act 1977 (UCTA).
However even a disclaimer in respect of negligence claims with regard to damage to property will only be applicable if it passes the UCTA test of “reasonableness”. You would need to Google the Act to get all the details of that but basically a person can’t exclude liability for claims in negligence in respect of damage to property to basically do what they like, and drive a coach and horses through all their obligations.
You potentially have a claim against the company, as I said earlier. You potentially have a claim against the bank under the Supply of Goods & Services Act (it is the old legislation which applies to business transactions not the later Consumer Rights Act- although the provisions are the same) for failing to carry out the job with reasonable care and skill.
You also potentially have a claim in negligence against the bank.
If you decide to sue the bank in the Small Claims Court for this money then win or lose, you may find they close the account so I advise caution.
You would be at liberty to complain to the Financial Ombudsman but the Ombudsman seems to be selective as to whether they will deal with business issues or not. The stance seems to be that they will deal with small business issues but not large business issues although they tend to seem to be a law unto themselves.
Ultimately, if you feel the bank are responsible for this and they want refund this money, then your only remedy is to take them to court because you cannot beat them with a blunt instrument until they pay up.
Can I clarify anything else for you?
I am happy to answer any specific points arising from this.
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