needing help to reclaim bank charges

Mersey_2

Nasqueron wrote: »

This is a valid complaint if you immediately complain when you get the first charge




This user stated

"I opened up a bank account at 16 and was told which account I had to have etc etc."

This is hearsay as per the literal definition

"the report of another person's words by a witness, which is usually disallowed as evidence in a court of law."

Stating you were told you needed an account is by definition hearsay unless the conversation was recorded or some documentation exists where the bank staff state in writing which account they recommend.

An account closed 7 years ago is outside the 2 key time bar rules - more that 3 years since they could reasonably be aware of the reason for complaint and more than 6 years since it was taken out. The bank can easily dismiss this (though not to say they will).

As for 'hearsay' - we've discussed this previously, so I won't repeat it all again.


I assume you're just mis-reading the definition (even if it is dictionary rather than the civil definition). A witness (third party) account would be hearsay. A claimant & defendant's evidence in civil matters hardly ever is, as both are usually either physically present at the time or engaged in a conversation by telephone.


I know what you're trying to say, but a claimant's account is NOT hearsay. It is their evidence v the bank's.


If you or I were to state what the claimant told us, then yes, that would be.


But the OP's first hand written account or lay oral evidence is just that. The bank can then respond with their evidence (if any).



I think you just mean that is an uncorroborated allegation. That's usually true.

It's stronger the earlier you raise any grievance; but, of course, a customer raising a complaint years later when they realise/notice/are informed is entirely valid too.

Mersey_2

Nasqueron wrote: »

Stating you were told you needed an account is by definition hearsay...

It simply is not.


It is direct evidence from many complainants and forms the basis for many successful packaged account reclaims.


Of course banks can then respond with whatever evidence they have. But neither is 'hearsay.' Complaints are then decided weighing up the evidence from these two sides on the balance of probabilities.


Hearsay evidence from third parties would, however, usually be excluded. That is correct. [Although the only instance I can recall anyone ever attempting to admit hearsay or Civil Evidence Act notice evidence in a similar case was when a family member heard the conversation on speakerphone but was then incapacitated so unable to complete and sign the FOS forms. That third party account was excluded, quite rightly]

[Deleted User]

Mersey wrote: »

But the OP's first hand written account or lay oral evidence is just that. The bank can then respond with their evidence (if any).

I think the argument is largely over semantics here.

The point is that providing an unprovable allegation of wrong-doing is not as likely to meet with success as one for which there is compelling supporting evidence. I'm certain you'd agree here.

Calling it "hearsay" is therefore neither here nor there, the point is that many such accounts fail in the absence of other faults with the sale.

Mersey_2

It isn't 'unprovable' - in fact hardly any reasons are. Whether it has merit or will succeed is another matter.


I was simply pointing out that first hand evidence is not hearsay. It's the claimant's evidence v the bank's.


To state it's hearsay is not only incorrect, it might also lead OPs to think their evidence has less value than the banks. It does not. Both sides' are weighed up. Which can only be right in any civil matter.

Nasqueron

Mersey wrote: »

It isn't 'unprovable' - in fact hardly any reasons are. Whether it has merit or will succeed is another matter.

It is unprovable - the poster claimed they were told something, they have no evidence to support this claim

Mersey wrote: »

I was simply pointing out that first hand evidence is not hearsay. It's the claimant's evidence v the bank's.

It is hearsay, it is reporting what they claim they were told in a bank, not the bank's evidence

Mersey wrote: »

To state it's hearsay is not only incorrect, it might also lead OPs to think their evidence has less value than the banks. It does not. Both sides' are weighed up. Which can only be right in any civil matter.

Again wrong. Read up on "burden of proof. The OP must prove their claim "on the balance of probability" (civil courts), if their evidence is simply "I was told this in the bank" it is of almost no value - the bank does not have to prove their innocence, the OP must prove their "guilt".

Both users GemsT and butterfly_wings832000 are alleging they were miss-sold in the bank by a member of staff telling them which account they had to have. In neither case does the bank have to defend themselves, both users must prove that event happened on the balance of probabilities. If the bank provides an example of staff in branch sales training which says they should offer the best account for the customers circumstances and not pressure sale that is a 100% defence of the claim unless proof is provided that the staff lied or mis-led.

Both posters have claimed they didn't know about the account charges (as you did) which simply means bank statements were never checked. A payout following such a complaint may be an autopay or another failing. It is the classic correlation = causation fallacy to believe such a complaint automatically led to the payout.

The purpose of this board is surely to provide a factual statement of affairs and be realistic about a complaint, not suggest things might happen because someone else got lucky.

Mersey_2

Nasqueron wrote: »

(1) It is unprovable - the poster claimed they were told something, they have no evidence to support this claim


(2) It is hearsay, it is reporting what they claim they were told in a bank, not the bank's evidence




(3) Again wrong. Read up on "burden of proof. The OP must prove their claim "on the balance of probability" (civil courts), if their evidence is simply "I was told this in the bank" it is of almost no value - the bank does not have to prove their innocence, the OP must prove their "guilt".

Both users GemsT and butterfly_wings832000 are alleging they were miss-sold in the bank by a member of staff telling them which account they had to have. In neither case does the bank have to defend themselves, both users must prove that event


(4) happened on the balance of probabilities.


If the bank provides an example of staff in branch sales training which says they should offer the best account for the customers circumstances and not pressure sale that is a 100% defence of the claim unless proof is provided that the staff lied or mis-led.

Both posters have claimed they didn't know about the account charges (as you did) which simply means bank statements were never checked. A payout following such a complaint may be an autopay or another failing. It is the classic correlation = causation fallacy to believe such a complaint automatically led to the payout.

(5) The purpose of this board is surely to provide a factual statement of affairs

I've numbered your points for clarity.


(1) Unprovable would be an allegation with no evidence. This is not, as I explained above to money. Almost no reason is 'unprovable.' Whether a complainant's claim lacks merit or they cannot state the date, time, with whom they spoke and so on is another matter and will go to both aid their case and their credibility.


(2) You appear to believe that any evidence other than the bank's is hearsay. It simply is not. Both sides provide their evidence and each is their direct account. Hearsay evidence will almost always be excluded, quite rightly.


(3) With the greatest of respect I am a Solicitor - with 12 years' experience of handling litigated matters in the County Court - which is why I'm not the one who needs to. I have stated the civil burden correctly. At times, you seem to believe that an almost criminal burden is required 'to prove their guilt'. It is not. This is nonsense and no complaints would result in redress if that threshold of burden was the test. It is 50.1% not 100%.


(4) Correct. This is the civil burden in such cases as I stated.


(5) I quite agree. Which is why it is wrong to tell OPs that they, 'must prove the bank's guilt' and their first hand evidence is hearsay. It can almost never be hearsay. Both sides evidence is weighed up on the balance of probabilities, ie 50:50, not 99:1 or however high you think the burden should be. I'm sure you'll recognise that this is the position.


I agree with your last para. That may happen. But I wasn't commenting on the merits of the majority of claims.


I was simply (again) correcting your assertion that bank customers' evidence is hearsay.

[Deleted User]

Mersey wrote: »

You appear to believe that any evidence other than the bank's is hearsay. It simply is not. Both sides provide their evidence and each is their direct account. Hearsay evidence will almost always be excluded, quite rightly.

I think the point is that the other poster thinks that ANY account of the sale (from whatever source) is unprovable "evidence", unless there are recordings or documentation to back them up. So, if a complainant provides one account and the bank has a conflicting story, then neither are provable, but are decided on a balance of probabilities. Obviously such evidence has a lesser chance of success than purely factual statements for which compelling supporting evidence is provided. That's why such complaints are often dismissed here on the forum.

I agree the poster concerned is unwise to refer to this evidence as "hearsay" as that word should be reserved for third party evidence: for example, " My wife was told...".

brown1950

Mersey

I wonder why all the bank defenders on this particular site are at odds with your views ?

dunstonh

If someone makes an allegation which is unprovable, then it can still see the complaint succeed if there is
a) another failing identified.
b) on balance of probability, the allegation is likely to be correct.

However, it is unusual for an unprovable allegation to be upheld by itself without another failure being identified. Mainly as anyone can say anything about what may or may not have been said. For example, did they say should or could in their sentence 15 years ago? One letter difference in one word can change the meaning.

Credibility can come into play. If the person gives a list of complaints (like many old template letters or some CMC complaints) then if the bank is able to show these are mistaken memories or lies (depending on your point of view), then the person loses credibility which can harm them in balance of probability complaints. Likewise, if the bank starts giving wrong responses, they lose credibility.

Mersey_2

True, although no allegation is 'unprovable.'


[It only has to be 50.1% 'proven' on the balance of probabilities, not 100% 'guilt' and (b) couldn't occur if it were, although my point is that no claim has 0% chance of success in the same way that no defendant is ever 100% sure of succeeding]


The claim may just lack credibility or corroboration as you say.