By Jeff Cumberbatch From The Barbados Advocate

Musings: The Consumerist Agenda I

Even though there is much fodder for a columnist these days, the plain incongruity of some regional affairs forces me, in part, to revert to a theme I have explored in recent weeks – that of the regional theatre of the absurd or, as I titled it some weeks ago, Caribbean tragicomedy. There were some more scenes recently. First, the Prime Minister of Trinidad & Tobago announced that that state’s decision whether or not to accede to the appellate jurisdiction of the Caribbean Court of Justice will be decided by referendum, a mechanism for which the Constitution does not currently provide and which was seemingly forgotten or, at least, not considered when the recent governance reforms were being contemplated.

Next, a local legislator and government minister announces his firm opposition to “gender-neutral” legislation, although he does not use that phrase in its generally accepted sense, but means only legislation that would recognise same-sex relationships. He claims to do so on the basis of his moral and religious compass, even though the particular context in which that factual, and not necessarily legal, recognition would occur is that of spousal or partner abuse where, one would think, the genders or sexual orientations of the parties are essentially irrelevant.

And the members of the West Indies cricket team embark on a tour of South Africa with the same nettlesome clause that caused the potentially bankrupting abortion of the Indian tour either, according to some reports, expressed in the playing contract or, according to others, stated as yet to be negotiated. If the former; the irony is near palpable, if the latter – the entire contract may be void for uncertainty, having expressly left a significant aspect [remuneration] still to be negotiated by the parties.

Consumerism

The average Barbadian consumer must be feeling rather overwhelmed by now, given the events of the past few weeks. One bank, First Caribbean International (FCIB), by letter dated 3rd November, has informed customers of its intention to vary the terms of its present arrangement with them with regard to the outsourcing of the processing of their personal data in which it claims exemption from responsibility, and to provide for a unilateral entitlement in the bank to alter the terms of the account, to charge fees and to change interest rates at any time. More over, in this matter, silence by the customer is deemed to be consent after December 31 and a failure to consent, it is asserted, “may prevent us from continuing to provide you with banking services”.

While it is possible for two parties to agree to any arrangement once it is not prohibited by statute or contrary to public policy, this proposal violates no fewer than three tenets of fair contracting theory; first, that the variation of a contract should be consensual; second, that silence should not ordinarily constitute assent, and third, that the concept of a unilateral right to alter the terms of a contract, while not illegal, speaks to taking advantage of an inequality of bargaining power and is inconsistent with the principle of mutuality.

Further, the notion of outsourcing personal information, while not currently governed by local law, was regulated in the draft Data Protection Bill 2005 that incorporated as the Eighth Data Principle – “personal data shall not be transferred to a country or territory outside Barbados unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data…”

FCIB does, however, undertake to obtain the necessary regulatory approvals for the proposed variations. This is as it should be. Some years ago, at the turn of the century, the then governing administration, to its credit, radically reformed the law of consumer protection locally by enacting a slew of legislation and creating the necessary regulatory oversight body, office and tribunal to enforce its provisions. In the instant case, the Consumer Protection Act, Cap 326D (especially the First Schedule – “Contract terms which are unfair if not individually negotiated”) – and the body establish to administer and enforce it will assume some significance.

This will also most likely be the case with the Lime Caribbean proposal dated November 1 that “[s] tarting January 1 2015, customers who [opt to] continue to receive paper bills will now be charged for this service. A monthly charge of $4.68 inclusive of tax will be levied on bills that are printed and sent by mail.”

Now, I am by no means a Luddite and, in these times, I can well understand the facility for companies of electronic communication and transactions. As was said in one 1984 UK case where some tax officers sought a declaration that the recently introduced use of computerised systems [COP] in place of the old manual system of calculation was a breach of their employment contracts, “Of course, the changes in working methods and practices which COP brings in its train are great – although I think the evidence has tended to exaggerate them. But that, as it seems to me, is not the point. COP merely introduces modern up to date methods for dealing with bulk problems; it leaves the jobs done by those who operate the new methodology precisely the same as before… Although, doubtless, all of us, being conservative by nature desire nothing better than to be left to deepen our accustomed ruts, and hate change, a tax officer has no right to remain in perpetuity doing one defined type of tax work in one particular way…”

These dicta are instructive. Change is inevitable. However, management of that necessary change is equally important and a clumsy treatment may have unfavourable consequences. Witness for instance, the recent handling of the institution of tuition fees for Barbadian students at UWI by the current governing administration. Necessary maybe, but poorly explained and ham-fistedly applied, much to the chagrin of more than a few.

Barbados, for all its claims to sophistication, still numbers among its people many who are ignorant of (as in “not knowing” rather than “short of temper”), unfamiliar with or, in some cases, scared of the use of the computer, assuming that there is the required access in the first place. This proposal makes no provision for these people, a significant number of whom may be customers of LIME Caribbean.

The letter does not state the source of LIME’s entitlement to impose the new terms of billing, but I am assuming that it believes it has a contractual right to do so. If this is the case, then depending on when that term was agreed and the nature of the reason for the proposed change, paragraph 1(k) of the Consumer Protection Act may very well be implicated.

For more on this story go to: http://www.barbadosadvocate.com/newsitem.asp?more=columnists&NewsID=40087

See related story:

CIBC First Caribbean International Bank to make major changes to its operations

ST JOHN’S, Antigua – Major changes are looming for CIBC First Caribbean International Bank customers, according to a report in the Barbados Nation newspaper. But the bank has played down the changes as standard in the industry.

The Nation said the bank has told customers it is going to outsource all lending, account and client information from all its banks in the region to third parties in another country who will now be processing it.

In addition, the bank said it wanted to change all the contractual arrangements that clients originally signed, to allow the bank to “unilaterally change any of the terms of the account opening agreement or any other of its agreements applicable to interest rates, fees, charges, or overdraft limits at any time in the future.”

Further, the bank statement said such changes will deemed to have been unequivocally accepted by customers.

In a letter signed by Mark St Hill, managing director for retail, wealth, businesses and international banking, when it came to fees, he said: “The bank may change applicable fees, charges, overdraft limits at any time in the future and notify (you) by any means of public or private notification.”

On November 1, 2014, fee increases or changes on draft orders, and foreign cheques came into effect in Antigua & Barbuda.

A number of other increases or changes will come into effect on December 1, 2014. The changes will affect minimum balances for regular savings accounts, foreign currency exchange, wire transfers and more.

For more on this story go to: http://antiguaobserver.com/cibc-first-caribbean-international-bank-to-make-major-changes-to-its-operations/