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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17278
Experience:  I have been practising for 30 years.
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My bank made a series of false statements earlier in the

Customer Question

My bank made a series of false statements earlier in the year (generally to customers and specifically to me in their secure message system). I have complained to the Ombudsman, and they are still investigating (they are overloaded with comlaints). The bank has refused to respond at all to my secure messages shown as complaints; they now seem to be ignoring all my messages. A couple of weeks ago I said that I assumed they were cancelling the account and all loans: I asked if this was so and said I would take silence as assent. There was silence. I sent a message marked for 'Small business loans' stating that I the bank had agreed to cancel all loans. I have had no response.What is my legal status here?
Submitted: 13 days ago.
Category: Law
Expert:  F E Smith replied 13 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need sometime to consider this and compose a response. There is NO need to wait on line becauseyou will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

can you give me the background to this matter please

and why do you try to contact them if matter is with ombudsman?

Customer: replied 13 days ago.
This began right at the start of the pandemic; on their site they had the statement 'we may offer a repayment holiday'. I phoned and they were rude and unhelpful, saying bluntly 'we're not doing that' and refusing to discuss their claim. I then complained to the bank and had no response (beyond an acknowledgement and a promise to respond). So I complained to the Ombudsman. This was moinths ago. The bank finally replied saying they had sent a final response. I had not received one, so they said they would resend. Nothing happened and from then on they do not respond to messages of complaint; they now ignore related messages with different headings. There is nothing coming from the Ombudsman. I am reluctant to put in more money to cover loan repayments to a bank which refuses to respond. They have, as I said, responded with my question about whether they were cancelling all loans with silence - which I stated would be taken as assent. They literally treat me as though I do not exist. I do not telephone banks because I find they cannot be trusted... This is HSBC, after all. Their message system is primitive (they will only allow full stops and commas, no question marks, not currency symbols such as £, etc!), and it looks now as though they are not even monitoring messages. They last responded to a 'complaint' message on 10the July; since then I have sent 5 complaint messages. That one on the 10th said 'I have forwarded your complaint to a complaint handler'. I do not wish to put more money into the account to cover loan repayments and feel they have breached regulations and the (at least implicit) agreement with me.
Expert:  F E Smith replied 13 days ago.

Let me deal with your “silence” offer first.

Legally, they haven’t accepted.

They cannot except by silence.

There is already case law and if you Google Felthouse v Bindley it will give you plenty of reading.

So you can not rely on them cancelling the account based upon their silence!

At least you can until the law changes and I think that’s doubtful because it’s a 19th-century case which is still good law which is well settled. It depends whether whoever your communicating with is aware of the law. Perhaps not.

Whilst you can wait for the ombudsman, there is no saying that the ombudsman is going to give you the result you want. You need to remember also that your complaint will not initially be dealt with by an ombudsman, it will be dealt with by an “investigator” who to be frank, in my experience, have made some absolutely stupid and idiotic decisions. You can then ask for it to be passed to an actual Ombudsman (I thought that was what you were doing in the first place but it seems not!) Who will invariably uphold their colleagues decision!!

So if you want something done sooner rather than later, you can always issue court proceedings. However if the court proceedings are defended it could easily be 12 months before it gets to court so it only makes it sooner if the bank decide they don’t want to go to court and they want to settle.

I know this is largely not the answer you wanted.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Customer: replied 13 days ago.
I never really thought that the silence is assent argument would have legal standing; my actual point is that they are failing to behave correctly with a customer, ignoring complaints and requests without justification. This surely does have legal standing as default of legal obligations. They also appear to have lied in writing to me and to all customers on their site.My specific problem is that I do not want to put money in to make loan repayments until they actually start dealing with the complaints. What I need to understand is my legal position.
Customer: replied 13 days ago.
PS. Banks do, of coursde, regularly use a form of the 'silence is assent' argument - 'If we do not hear from you then we shall take it to mean...' or some such formulation!
Expert:  F E Smith replied 13 days ago.

I know it has no legal standing but there is no harm whatsoever in trying it on. They may not know the law. It depends whether they refer it to their legal department or someone who does know.

They are undoubtedly in breach of contract and in breach of the provisions of the Consumer Rights Act for failing to carry out the service with reasonable care and skill.

You are quite correct that banks (and insurance companies) do you silence all the time.

“If we don’t hear from you we will automatically renew your policy”, but you do have the right to cancel.

I’m not certain whether the amount of the loan payment or the loan outstanding is in dispute but my advice is to always pay that which you agree to but do remember that if you stop paying, they will put a default against your credit history and normally, only a court application remove that.

What you can do, and this would force them into dealing with it is to pay it, and then anything you don’t agree with, simply issue court proceedings against them in respect of the return of that money on the basis that you paid it under pressure/duress/mistake, and now you want it back. Perfectly legitimate. Perfectly legal. I don’t know why more people don’t do it. The bank cannot ignore legal proceedings.

Customer: replied 13 days ago.
Many thanks. This has helped a lot.
Expert:  F E Smith replied 13 days ago.

No problem at all. I am really glad to help. Come back to me at any time if anything else needs clarification. Kind regards

Customer: replied 12 days ago.
May I ask three questions? First, is it worth me going to Trading Standards? Second, would you take on tis case if asked? Third (and completely separate!), we do have a rather odd problem with a parish council - and it seems parish councils are their own arbiters of complaints - should I start a new question on this site?
Expert:  F E Smith replied 12 days ago.

Of course you can.

1 some trading standards are exceptionally helpful and others not so. However even a helpful one would not normally get involved in a bank argument. In any event they will only prosecute statutory breaches and breaches of the regulations if appropriate and they would normally pass it to the Financial Conduct Authority and you are already in touch with the Ombudsman. They wouldn’t do anything about getting you any compensation.

2 I’m afraid that we are specifically not allowed to take instructions from here.

If the site were to be a source of potential clients, we would no longer be independent because we would have an interest in pursuing litigation. With no interest in pursuing litigation, we can be really objective with our view is to whether something has a good chance or a limited chance of success.

In any event, for logistical reasons you would be better using a local solicitor .

3 Parish councils are in my opinion and experience a whole load of do-gooders who “interfere”. Because it’s a completely different subject, you would need to post another question but if you want me to deal with it, please put my name at the top of the thread, and request me,, “For FES only” and I will pick it up for you. Kind regards

Customer: replied 9 days ago.
On 15th October I sent a message to the bank stating what you had told me and saying I would start proceedings. I then gave them two weeks to respond with a proper offer of apology and compensation. For the first time since 10the July the responded today with: 'Good morning, Thank you for your message. I'm sorry you've had cause to contact us again. I can see that you have raised your concerns with the Financial Ombudsman Service. Please direct any further queries regarding this via them and we will co-operate with their investigation in to the case.'My inclination is to start proceedings, but I am concerned about the cost, especially if they are not successful. I will contact the local Trading Standards, but wonder what advice you might have regarding legal action?
Expert:  F E Smith replied 9 days ago.

They clearly have no intention of dealing with this because there is absolutely nothing whatsoever to stop them resolving the issue even though the matter has been referred to the Ombudsman.

If your claim is under GBP10,000 then it Small Claims Court and costs are not normally awarded against a loser. However don’t make the claim 9999 because there is a chance they would allege you had artificially reduced the value of the claim and ask for it to going to the fast-track when there would be costs risks.

Over GBP10,000, fast-track or multitrack, legal costs could easily be as much as the claim itself.

Don’t expect trading standards to do anything.

Customer: replied 9 days ago.
OK. That seems to say I should not proceed, since my claim is that they misled me (and other customers), then made false claims - but none clearly cost me any money, so there is no clear figure that I can claim.
Expert:  F E Smith replied 9 days ago.

It is a general premise of English law that for there to be a claim you have to suffer loss or injury. It doesn’t actually need to cost you money.

Someone who breaks their arm in a negligence accident hasn’t necessarily lost any money but they suffer pain. That has value.

Untrue statements may be defamatory although just because something is untrue doesn’t mean it is necessarily defamatory. For example you could have a true statement which is flattering.

“He is a brilliant football player” when he is not is brilliant is not defamatory.

“He is a poor football player” when he is a good one is defamatory.

However there is also “injury to feelings” and very often injury to feelings and defamation go hand-in-hand.

However, if the bank make a statement “we may offer a payment holiday”.

They don’t have to because it says they “may”.

However if they’re going to make a statement like that, they are going to have to show that they have offered payment holidays and that they have a system in place for considering whether it should be offered or not and they have to offer them to a reasonable number of people otherwise it’s a matter for Advertising Standards.

Customer: replied 9 days ago.
Many thanks. They didn't turn me down for the repayment holiday individually, they clearly, and pretty rudely stated 'we are not doing that'.
Expert:  F E Smith replied 9 days ago.

I think that is a matter for Advertising Standards and the Financial Ombudsman.

I don’t think you have a court claim to make