1. I have lost my savings in an investment with XXX Building Society. What can I do?
It depends on the facts. Deposits in a Building Society or a Bank are protected by the Government guarantee. Even with the collapse of Anglo Irish Bank and Irish Nationwide Building Society, the depositors with those institutions were secured and the deposits are available to be withdrawn. (In reality, all the deposits were lost in those institutions; it is the taxpayer who is replacing your lost deposit).
2. My savings were not a deposit when they lost their value. Can I still do something?
Other forms of “saving” are not as protected. If you purchased a bond it may be tied to general market values in say, the property market. The terms of the bond may govern your exposure to that risk.
3. I did not know of the risk when I bought the bond. Does that matter?
Yes, it matters a great deal. Only an unsophisticated investor would not have appreciated the risk; even so, the documentation given to you would have told you of the risk. However, if what you say is true, it shows you were an unsophisticated and vulnerable consumer. A consumer, at law, is not bound by unfair terms (or prohibited practices).
4. What is an unfair term or prohibited practice?
An unfair term is one falling into the definition of that phrase in SI 27/1995 as amended by SI 307/2000.
SI 27/1995 says:-
“…a contractual term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer, taking into account the nature of the goods or services for which the contract was concluded and all circumstances attending the conclusion of the contract and all other terms of the contract or of another contract on which it is dependent.”
5. What does that mean?
It depends on the facts of the case. Pay particular attention to Paragraph 2 of the 3rd Schedule of Statutory Instrument 27/1995. Sub-paragraphs g), j) and l) of Paragraph 1 of the 3rd Schedule do not apply to:-
“…transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control;”
6. Is that a reference to prevailing property market values?
It would appear not. (The Stock Exchanges do not maintain a direct “property index”). Furthermore, that limitation only applies to transactions “… where the price is linked…”. If the price of the transaction is not so linked, the limitation is not relevant.
7. What about prohibited practices. What are they?
They are listed in Section 55 of the Consumer Protection Act 2007. You should carefully read Section 55 (1) (t), which reads:-
“(t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions;”
That indicates that any aggrieved “investor” should explore what were the normal market conditions at the time of “purchase” and compare them with the conditions represented to him/her. (All of this is a reference to misleading information given to the investor, not a reference to better terms being available elsewhere). So, if the consumer is misled into thinking that a bond is as safe as a deposit, that is a prohibited practice. Or if the consumer is misled into thinking that a bond is the same as a deposit but with a higher interest return, that is a prohibited practice.
8. I thought only consumers who bought “goods” as opposed to “services” were protected by the Consumer Protection Act?
You were mistaken. It applies to the supply of goods and services. The Act says:-
“” product ” means goods or services;”
9. If I can prove I was misled do I escape from the loss?
Possibly. Read Section 43 of the Consumer Protection Act 2007. Section 43 (1) provides:-
“43.- (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.”
Sub-section (3) (iv) refers to “…its benefits or fitness for purpose;” In short, if the consumer informs the trader of his or her purpose, the trader will be misleading the consumer if the product is sold avowedly for that purpose and it does not serve the purpose. Needless to say, if the consumer is misled as to the fitness for purpose of the investment, the consumer cannot make an appropriate transactional decision. There are many instances of misleading practices in the Section. The more instances that apply to any case, the greater the chance of prevailing in the struggle to get compensation.
10. What about the obligations on financial services practitioners to comply with SI 60/2007. Surely that is of assistance to consumers?
Possibly it is. To be sure, a consumer should always insist that the trader confirm, in writing, that it subscribes to, and complies with, the provisions of that Statutory Instrument (SI 60/2007). The Statutory Instrument embodies the regulations to which banks etc. are obliquely referring when they say in their advertisements that they “… are regulated by the Financial Regulator”. (We now know that the Financial Regulator was not regulating them). By procuring the reference in writing, the consumer will, without the possibility of contradiction or denial, get the benefit of the provisions of SI 60/2007 through the application of Section 45 (1) (c) of the Consumer Protection Act 2007.That Section reads:-
“45.- (1) A commercial practice is misleading if-
(a) it involves a representation that the trader abides, or is bound, by a code of practice,
(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and
(c) the trader fails to comply with a firm commitment in that code of practice.”
11. Surely the Financial Regulator will look after me?
No. He may prosecute the offender, but he will not look after a consumer.
12. What about the Financial Services Ombudsman? Will he look after me?
He may, but be ready to urgently apply to the High Court in the event he makes a finding adverse to your interests. Under Section 57CI of the Central Bank Act 1942 as inserted by Section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, the adjudication of the Ombudsman is binding on a complainant. There is, according to the Ombudsman’s office, only 21 days from the date of the decision (not the date the Complainant learns of it) to lodge the appeal in the High Court. This is very inadequate and calculatedly so. See the substantial review of the Ombudsman process in the High Court JR decision relating to Enfield Credit Union and J & E Davy HERE.
13. Do I have to go through the Financial Services Ombudsman’s procedure?
No. You can litigate directly with the financial services provider in the appropriate court.
14. Is there an advantage in going to the court directly?
Yes. As noted by the High Court judge in the Enfield v Davy case, the court will not substitute its judgment for the decision of the Ombudsman. Consequently, if that High Court view of the legislation is correct (it may not be), a Complainant will lose the control over the complaint that litigation will give and will cede control to the Ombudsman, whose procedures may turn out to be cavalierly informal.
15. Is there a disadvantage in going to court directly?
Yes. It is much more expensive than the Ombudsman’s process. However, that disadvantage may be offset by the fact that the case will be heard in open court. The Ombudsman’s procedure is dealt with in private. It will often be well worth the extra expense to control the procedure and have the case heard in public. Furthermore, the application of consumer legislation is likely to be more rigourous in a court than in the Ombudsman’s process.