25 Sep 2008 6:36 PM:

With my apologies for the delay in replying, here is why I'm not doing anything. My solicitor emailed the following:

"Dear Kevin

 

I hope that the weather is better in Spain than it is here because it has certainly been diabolical. 

 

Referring to your query with Alison whilst I was on holiday, I apologise for only just coming back to you but I am only now getting on top of the backlog created by going away, to the point where it makes you wonder if it is worth going.

 

I assume that the company you are upset about is an English company.  If it is a Spanish company then Spanish law will apply and I would not be in a position to advise.  On the assumption it is an English company that was supposed to be sending money over, I still think that you have an uphill task if you try to pursue it.  The reason I say that is, the amount involved, i.e. £1,000 mentioned to me, under English law would represent a small claim.  The Courts have set a rule that anything under £5,000, no matter how complicated, is classed as a small claim.  The assumption is, therefore, that members of the public can sort their own legal affairs out without recourse to lawyers.  If you do have recourse to lawyers and a claim under £5,000, then even if you are successful, you are unlikely to get back anything other than your Court fee and a very small amount of fixed legal costs.  The reality is, therefore, that if it costs £2,000 or £3,000 or more to pursue a claim, you are only likely to get back a few hundred pounds at the very best in terms of Court fee and costs.  In practical terms, it makes pursuing small claims virtually a commercial waste of time.  I personally think this has been done deliberately to try to discourage small claims because the reality is that quite often what are claims that are classed as small claims are quite legally complex and quite how a member of the public would be expected to deal with them beats me but, unfortunately, we don’t make the rules.

 

You would have to show that the company were negligent in not getting money to you on time.  You mention small print and I assume that there is an agreement between you and the company to transmit the money.  Often, there will be exemption clauses in the small print which exempt them from liability if there are breakdowns out of their control.  This is quite standard practice.  Without seeing any agreement between you, it is difficult to be precise but I have tried to set out the principles.

 

What you would need to do is to write them a formal letter before action, setting out what you are claiming and why and giving them a reasonable period of time to respond.  If ultimately nothing comes of it, you would then be expected to issue a summons in the County Court claiming the £1,000.  This is really where the cost aspect comes in because once you have issued a summons, you have embarked upon a course of action which it is not always possible to just simply pull out of.

 

If they choose to defend it and start to claim exemptions and small print, then obviously it is up to you to prove that legally they are in the wrong and, again, that is where the cost comes in.  I will happily look at the agreement between you if you want but that has to be the starting point because if they are going to claim exemptions, then they will do it under that agreement.  If it is unclear that they had the benefit of any exemptions or get out clauses, then the letter before action could be sent.  I will leave it entirely up to you but I would certainly hesitate to advise you to throw what could be a considerable amount of legal costs at it in the sure and certain knowledge that even if you succeed, you are not going to get back anything like what it has cost you to make the claim.

 

I look forward to hearing from you."

 

I have, however, heard from the Information Commissioner's Office and they have asked me to complete a form for a "potential breach of the Data Protection Act." They are little more than a toothless watchdog, powerless to apprehend, never mind impose any fines! Money transfers are outside the control of the FSA, too, as you will have read above.

So - we lost our money, and [company name not quoted, in accordance with posting rules] got away with it - again.

Thread: HiFX problems, delays transferring money

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11 Jul 2008 12:17 PM:

Names editted out to comply with forum rules. The firm we used are referred to as "my company."

Money transfer companies provide a service. If you are in the UK when you enter a contract with them (i.e. request that they transfer money for you) then they are subject to UK law in the provision of that service. Equally, you are bound by the terms and conditions of the contract (provided the terms are reasonable, but that is a different matter!) The law states that the service must be provided by a competent person (or persons) in the organisation, and that they must use reasonable care and skill. In my case, I was advised verbally when to transmit funds to my company so that it could then forward them to Spain in time to complete the purchase of my property. I took that advice without checking my company’s small print – perhaps a mistake on my part, but I thought these were the guys at the sharp end and they would know what they are talking about. So, I transferred my money to my company and off we go to Spain to complete the purchase of our house. On the day that completion was due, that the Spanish bank had not received the funds. During several frantic telephone calls made by both my lawyer and myself (outside the Notary’s office!) my company admitted that they had received the funds from me several days beforehand, but that they had failed to forward them to the Spanish bank. They said new computer system was to blame, and that it was my company’s fault. We returned to the UK having breached our contract on the purchase. We had the additional costs associated with appointing a power of attorney and, obviously, we were unable to obtain the keys to our new property to measure up and order furniture (we bought unfurnished). Hence we had to make an additional trip to Spain to do this, for which I hold my company responsible. The other unfortunate thing is that we were unable to use our new home for the Christmas period.

 

After our return to the UK, during a phone call to my company, they confirmed that they were at fault, compensation would be paid to us (although no figure was mentioned) and I was told to confirm my complaint in writing. This I did, but things went downhill from there. I received a letter from [name removed] of my company’s “Compliance Department.” This stated that, following a “thorough investigation” my company had acted without fault and blamed me for the late transmission of my funds to them. They claimed they had not received the funds from me until after the completion date, contradicting what they had said – and repeated – several times earlier. They then quoted from their small print, which states a ridiculous length of time to allow funds to reach the destination. (I was subsequently advised that this is to cover 3^rd world countries, where the banking systems are slow (or any country where the banks do not use the Banks Automated Clearing System or BACS). However, Europe is pretty quick – all European countries use BACS). My solicitor told me that they acted incorrectly by giving me the advice that they did and then by “hiding behind the details in the small print.”

 

As you will know, all conversations with my company are recorded. I wrote to them and requested copies of all the telephone conversations that we had had. They sent a CD with a total of 16 minutes and 9 seconds’ worth of conversations. I contacted my mobile phone operator for statements and totalled the calls to my company – this showed a further 49 minutes and 38seconds, and my home phone bill showed a further 35 minutes and 49 seconds. (This does not include the call made by my lawyer.) I asked for the missing conversations to be sent – I didn’t receive them. I sought legal advice.

 

You may or may not know is that my company - like others - records conversations and stores them digitally, i.e. on computers, so they are subject to the Data Protection Act. You are entitled to copies of all the personal data that a company holds on you. The procedure to obtain them is to write to the Head of Compliance – [name removed], I was told at the time – and make a formal request for copies of the information (in this case, telephone conversations) under Section 7(1) of the Data Protection Act 1998. See http://www.ico.gov.uk/ for more information – there is even a sample letter on the site telling you how to ask for this information. Send your letter by recorded delivery and enclose the fee (£10 at the time, see the ICO website for confirmation of this). I did this – I received a letter from [name removed], Compliance Manager, saying that they would send the information on CD to my solicitors. They even returned my cheque, saying that my company does not charge a fee for the service. That was the last I heard from them – September 2007. The conversations would have clearly shown that I had followed their instructions to the letter, and would also have confirmed their admission of fault. Their failure to send this information contravenes the Data Protection Act for which my company can be reported to the Information Commissioner’s Office. Unfortunately, this organisation will do nothing for an individual, making it little more than a toothless watchdog, but confirmation from them that the law has been breached will assist any court case you subsequently pursue.

 

I have not done anything since receiving that last letter as, in the space of a year, both my parents died and we moved house three times. However your posting has prompted me to take further action (if it’s not too late).

 

BTW you may feel that my company was not really to blame in my case, as their new computer system had failed to notify them that the funds I sent to the my company account had arrived. However, the IT department has the same requirement to provide their services to the rest of the company with the same reasonable skill and care. That’s still true if the work is contracted out (I am a systems support specialist, so I know this to be the case). So the buck stops with my company, whatever they may say.

I apologise for the delay in sending this. I typed the bulk of it a couple of days ago but I have only just completed it.

This message was last edited by kevinm on 7/13/2008.

This message was last edited by kevinm on 7/13/2008.

This message was last edited by kevinm on 7/13/2008.
Thread: HiFX problems, delays transferring money

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21 Mar 2007 10:28 AM:

Justin

As you request, this will be my last post on this subject.

I will close by adding my bitter disappointment with HiFX, since it seems someone there is happy to discuss my case with you while refusing to enter into dialogue with me. My emails remain unanswered. I resent the fact that I am now accused of failing to disclose "some important facts" and that you state "... the fault actually lies with yourself." My soilicitor does not agree.

I add my disappointment that other eyeonspain members will now not see the outcome of this case.

Kevin

This message was last edited by kevinm on 3/21/2007.
Thread: HiFX problems, delays transferring money

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15 Mar 2007 9:22 PM:

Thanks Janice, you cheered me up with that!

 

BTW not even an email to say "We have received your mail and we are looking into it...." Poor show, HiFX. Something tells me this IS going to court.

Thread: HiFX problems, delays transferring money

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13 Mar 2007 10:26 PM:

Hi Kelju

You may be interest in looking at "HiFX problems, delays transferring money" on this site. I have just had to warn them that I will take them to court if they do not settle my claim in the next two weeks. It appears that they are OK when there are no problems, but when things go wrong they just dump you. We were put in breach of contract and could not complete on out Spanish home because (it seems) of their ill-managed computer system upgrade and now we are told they did nothing wrong (not quite what I was told at the time!)

My advice - don't use HiFX.

Thread: We may just go beyond the date we fixed the exchange rate for

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