Unequally yoked – The bank and the customer

We feel ourselves compelled to return today to an issue we broached not more than an a few months ago in light of the recent revelation that one local commercial bank has instituted a fee of BDS$10 for anyone who does not have an account there purporting to cash a cheque drawn on that bank.

In August, in an editorial “Consumer protection and the banks”, we wrote: “Despite a rather formidable level of protection afforded for local consumers generally, including the enactment of [various] statutory guarantees, the establishment of institutions to regulate the contract for the supply of goods and services, and the provision of dispute resolution mechanisms in other commercial transactions, none of these extends to the banking contract.

The Central Bank of Barbados (CBB) that is the natural supervisor and regulator of banks, given its inspectorate function under its parent Act, does not now possess a consumer protection mandate. The Fair Trading Commission, while it does possess the authority under the Consumer Protection Act, Cap 326D, to strike down unfair contract terms in a consumer contract, especially where these have not been individually negotiated, is limited in that the determination of unfairness there specifically excludes “the adequacy of the price or remuneration as against the… services supplied in exchange”.

We also drew attention then to the exclusion of the banking contract from the jurisdiction of the Office of Public Counsel and concluded that the Barbadian
consumer of banking services “falls into a proverbial black hole so far as protection from the increased fees is concerned”.

Alas, nothing has changed fundamentally in this context since then, hence the introduction of this charge without a whimper of protest from the local consumer body or even the Ministry of Commerce that, so concerned with the plight of the consumer 15 years ago, has now seemingly gone silent. What strikes us as even more distasteful about this latest charge is that it seeks to impose a charge not on the issuer of the cheque, whose instructions it is contractually bound to follow, but rather on the third party beneficiary of that agreement with whom it has no relationship.

In addition, it is reported that some of these increases have been made without even the courtesy of reasonable notice of their implementation. This is plainly unacceptable.

Given that any change in this area will have to be legislative, our parliamentary representatives must stand complicit in this unfair consumer practice, especially since we have long despaired of any effective representation emanating from the local consumer body.

Nor does there appear to be any currently viable alternative. The report in another section of the press yesterday makes reference to an apparent flight to the services of the co-operative credit unions, with the Chief Executive Officer of one such organisation describing the growth of deposits in his credit union as “impressive”.

We have long considered that this recourse is unsustainable without further official enablement however. To our best knowledge, the financial assets of the local credit unions are held in the commercial banks and we suppose, are liable to the equivalent charges made to individual customers.

In the same editorial we referred to a charter of the rights and responsibilities of the banking consumer. Among the rights of the consumer was that to access to adequate, affordable and effective complaints handling mechanisms.

Perhaps the Central Bank might urge the banks to provide a similar mechanism or a voluntary code to amend their currently un-negotiated and unregulated contract of adhesion, so as to provide for some semblance of a fairer deal for the Barbadian public.

Barbados Advocate

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Advocate Publishers (2000) Inc
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