Proof of fraud – a high threshold to reach

 

The profit

Jacqui, an online trader, used the services of Platform Trading Limited (“PTL”) an online trading platform company. Jacqui made a profit of $5,344.19 USD on 26 February 2014, but PTL refused to pay Jacqui that amount.

 

PTL was of the view that Jacqui made the profit by acting fraudulently. PTL said Jacqui and her husband Sam knew each other’s trading platform account log-ins and passwords and that Jacqui and Sam had worked together fraudulently to manipulate the market and make the profit.

 

The complaint

Jacqui complained to FSCL. We reviewed the complaint and told PTL that although Jacqui had technically breached PTL’s terms and conditions by giving her husband her account details, we could see no evidence that Jacqui and Sam had manipulated the market to make the profit fraudulently. Specifically, we could see that Sam’s account had not been used on 26 February 2014, and we failed to see how Jacqui and Sam had allegedly manipulated the market. We told PTL that it had to prove the profit was made as a result of fraudulent activity by Jacqui, if it wanted to continue to refuse to pay her the profit.

 

PTL’s view

PTL referred to a section of its terms and conditions which said that PTL had the right to review client transactions if PTL suspected fraud. We noted that the word ‘review’ was not defined in the terms and conditions. As there was disagreement about the interpretation of the term review in the contract, that term being ambiguous (meaning there was more than one possible interpretation of the word), we applied the contra proferentem principle. The contra proferentem principle says that where a contract term is ambiguous, the interpretation that favours the party who did not write the contract is to be preferred.

As Jacqui did not write the terms and conditions (PTL did), we preferred the interpretation that favoured Jacqui, being that ‘review’ only meant looking at and analysing her account upon PTL’s suspicion of fraud. In our view, ‘review’ did not mean PTL had the right to take action not to pay the profit, based on its suspicion of fraud. In the absence of much more clear contractual wording, we found that PTL could not infer meanings into the word ‘review’.

 

Overall, in the absence of proof of the fraud, but taking into account Jacqui’s technical breach of the terms of conditions when she gave her husband her account details, we formally recommended that PTL settled the complaint by paying Jacqui of two thirds of the profit (that is, $3,562.80 USD).

 

The complaint was settled.

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