Successful court action for default removal

[reallymadwoman]

If you're interested in the background, my original thread is here :- http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/102134-reallymad-hsbc.html and the court stuff starts here:- http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/102134-reallymad-hsbc-6.html#post1525711

 

Basic summary (so you'll have some idea if it's worth reading the rest) is

 

1. DCA said I owed money on accounts which were in dispute with OC.

2. DCA eventually closed their files.

3. 2 months later they reported defaults on two accounts to the credit reference agencies.

4. They ignored a polite request to remove them and an LBA, so I issued proceedings.

5. After various shenanigans by the DCA, I won a small amount of damages.

 

I did get quite a lot of this process right but I also made some mistakes, so in the hope it will be useful for someone else, I'm planning a full account of every step. It might take a while to finish, so bear with me for now.

 

It would probably be helpful and make the thread easier to read if you avoid posting any comments until I've finished.

[reallymadwoman]

Step 1 was the letter I wrote and sent 'recorded signed for'.

 

I refer to your letter dated XXXX confirming that the file under your above reference had been closed. In view of this I was surprised to say the least to find an entry on my credit reference file in relation to (name of DCA), placed there sometime after (the last time I checked my file.

 

 

 

 

I am now prepared to allow a further 21 days from the date of this letter to receive the following:-

• An apology for continuing to process my personal data in breach of the Data Protection Act, 1998.
  
• Compensation in the sum of £100 for said breach, to include associated costs and inconvenience. I reserve the right to amend this amount if I find it necessary to seek removal of the data via the courts, and any such amendment will include damages to reputation.
  
• An undertaking that any and all entries on my credit reference files have been removed forthwith.
  

The above are not negotiable, and failure to carry out any or all conditions will result in immediate commencement of legal action relating to breaches of the Data Protection Act.

 

Important - you should never 'copy and paste' a letter as is, but should always personalize to your circumstances and ideally rewrite it in your own words. Apart from anything else, you need to understand exactly what you are writing. If your case ends up in court and the judge asks 'What did you mean by ...', you must be able to answer.

 

Though it might have served it's purpose, this doesn't actually comply with Pre-Action Protocols for a letter before action, as it doesn't go in to enough detail.

 

Also, the usual proviso applies. You should never threaten legal action unless you're 100% certain that you can and will do it. Though I eventually won this one, I personally would think long and hard about taking on another big company just because I found turning up at court so absolutely exhausting. I honestly never expected things to go so far as I believed there could not be any defence to my claim so I thought the DCA would settle before we got to a hearing. For whatever reason, they decided to fight it out, at which point I really had no choice but to continue whatever the cost to my health.

Edited December 14, 2008 by reallymadwoman

[reallymadwoman]

Having done a bit more research into Pre-Action Protocols (this thread contains the notes I made at the time http://www.consumeractiongroup.co.uk/forum/legal-issues/153324-pre-action-protocols-cpr.html) I decided I needed to write another letter.

 

I regret to note I have received no response to my letters dated XXX and signed for at your offices on XXX.

This is your final opportunity to settle this matter without legal action. In accordance with the ‘overriding principles’ I submit herewith the draft particulars of claim.

1. The Claimant was alleged to have held accounts with the Defendant, numbered XXX (account 1) and XXX (account 2).

2. Following extensive correspondence between the Claimant and the Defendant, the Defendant agreed that no monies were owed to them by the Claimant and closed their files on XXX (account 1) and XXX (account 2).

3. On XXX, during a routine check of the Claimant’s credit reference file, the Claimant noticed two entries in the Defendant’s name in respect of the alleged accounts. The entries were not on the Claimant’s credit file when it was previously checked on XXX.

4. The entries allege that the total amount owed by the Claimant to the Defendant is XXX (account 1) and XXX (account 2). Both entries show the account to be ‘in default’.

5. The Claimant claims that the entries are negligent misrepresentations in that the Defendant has no grounds on which to make such entries, and knew or should have known this by XXX (account 1) and XXX (account 2) at the latest.

6. The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998 (the Act) in that

a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’ and the data ‘personal data’ as defined in s.1 of the Act

b) On XXX the Claimant issued a Statutory Notice to the Defendant pursuant to s. 10 of the Act, requesting that the Defendant cease processing the Claimant’s data.

c) In respect of account 1, the Defendant responded on XXX, stating that the data had been processed ‘in good faith’ that there was a lawful entitlement for them to do so. This same letter also acknowledged that no debt was in fact owed by the Claimant to the Defendant.

d) In respect of account 2, the Defendant has failed to either reply to or comply with said Statutory Notice, but confirmed on XXX that no debt was owed by the Claimant to the Defendant.

e) The Defendant has continued to process the Claimant’s personal data, such processing having continued up to at least XXX.

f) The Claimant claims that such processing is unlawful in that it breaches Principles 1, 4 and 5 of the Act.

g) Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendants meets none of the conditions in Schedule 2, which the Defendant knew or should have known by XXX at the latest.

h) Principle 4 states that ‘Personal data shall be accurate and, where necessary, kept up to date’. The entries in the Claimants credit reference file are neither accurate nor up to date, which the Defendant knew or ought to have known by XXX at the latest.

i) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the XXX at the latest.

7. As a result of the unlawful processing and/or the negligent misrepresentation, the Claimant has suffered damage, namely costs in corresponding with the Defendant regarding the alleged debts and the entries on her credit reference file, distress and inconvenience.

8. The Claimant respectfully seeks;

a) An order under s. 14 of the Act, subsections 1 and 4, that the inaccurrate data be rectified, blocked, erased or destroyed.

b) An order under s. 14 of the Act, subsections 3 and 5, that the Defendant notify third parties to whom the data have been disclosed of the rectification, blockage, erasure or destruction of the data.

c) Under s. 13 of the Act, subsection 1 the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as:-

1. Postage, stationary and printing costs XX

2. Costs of membership of ‘Credit Expert’ @ £6.99 per month, 12 months £83.88 to ensure that the entries are removed and are not reinserted

d) Under s.13 of the Act, subsection 2 the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court.

e) Additionally, or in the alternative, the Claimant claims damages for negligence causing general loss to credit, at the discretion of the Court.

You should note that, if the matter does proceed to court, I will be relying upon, inter alia, the case of Kpohraror v Woolwich Building Society [1996] C.L.C. 510 with regard to the level of damages to be awarded. Should you not be aware of the case, appropriate damages were set at £1000 plus the default amount, representing in my case a total sum of XXX, and therefore a total claim of XXX. If a cheque is received within the next fourteen days, I would however consider a reasonable sum to be XXX in respect of both claims, subject to the previously mentioned undertaking regarding the entries on my credit file.

In the alternative I would ask that, under Practice Directions – Protocols ss. 4.1, 4.2 and 4.3, you provide full copies of all personal data relating to me held by (name of DCA), including a full history of all data that has been shared with other parties, including but not limited to the full contact details of all such parties, the precise nature of the information disclosed to them and the date or dates of any such disclosures. Your attention is drawn to the Courts powers to impose sanctions should you fail to a) acknowledge this correspondence promptly and b) provide the documents requested within a reasonable time. In this instance I expect to receive an acknowledgement within 5 days, and for the documents to be supplied within 14 days.

In any event, given DCA’s appalling history in relation to responding to my correspondence, in the absence of settlement as detailed above, proceedings will be issued on XXX without further notice.

 

It isn't necessary to supply draft particulars of claim, but I did because I wanted the DCA to know that I had some idea of what I was doing and was deadly serious about it.

[reallymadwoman]

This is where I made my first, and possibly biggest, mistake.

 

The DCA didn't reply, so I needed to start the court process but due to downright laziness and the convenience of doing it all online, I didn't use the particulars of claim that I'd pinched from elsewhere on the site because they wouldn't fit. Another factor was probably my belief that the DCA would never allow things to go as far as a hearing and would settle as soon as they got the court papers, so I thought it wouldn't matter if my particulars of claim were a bit .... brief is the most polite word I can think of.

 

The actual particulars of claim used are:-

The defendant negligently placed two entries on the claimant's credit reference file stating that the claimant owed the total sum of XXX to the defendant. The defendant had previously confirmed in writing to the claimant that no such amounts were due to them. The defendant further failed to respond in any way to requests for the entries to be removed. As the entries were likely to cause damage to the claimant's credit history, the claimant had to join 'CreditExpert' for assistance in having the entries removed and has been put to expense and inconvenience. The claimant claims XXX in respect of postage and stationary, xxx for membership of CreditExpert and xxx for time spent dealing with the matter.

 

No comments on just how terrible these particulars of claim are, I know!

[reallymadwoman]

Predictably, the DCA didn't acknowledge service within the 14 days so I asked for, and got, judgement by default. I gave them a week to pay up, then wrote asking for my money within 7 days or the bailiffs would be round. A day later I got a letter from their pet solicitor saying they hadn't had the court papers or any previous correspondence so would be applying for judgement to be set aside. They also said they would be asking for proceedings to be transferred to their local court which could have frightened me except I already knew that, as I was a litigant in person and they were a company, the court would automatically transfer proceedings to my local court.

[reallymadwoman]

After reading around the site I was pretty certain that their set aside request would be granted and initially I wasn't going to oppose their application. I sent off copies of everything to their solicitor as requested (along with copies of all the proofs of delivery as they claimed not to have received either letter before action) and waited for some sort of response.

 

Then I got a copy of the application. Their grounds for setting aside were:-

 

1. They didn't get the claim form.

2. I gave the court the wrong address.

3. I hadn't told them what the claim was about.

 

Given that 3 was an out and out 'mis-statement' and 2 was decidedly nit-picking plus I suspected that 1 was another 'mis-statement', I got cross and decided to make them work for their money.

 

I went through all the correspondence I'd ever sent to the DCA and made a list in date order, with a list of their replies from which it was pretty obvious that not replying to correspondence was a bit of a habit. I also went through their correspondence and highlighted the address given on every single letter (and the postcards telling me they had a parcel to deliver) which was the address I used on the claim form. I used this as the basis for my 'response to the application' and witness statement.

[reallymadwoman]

My response to their application:-

 

The claimant wishes to reply to the application as follows:-

• The Claim Form and Particulars of Claim were served upon the defendant by Northampton County Court in accordance with CPR 6.2 and 6.3.
  
• It is denied that the defendant did not receive the said Claim Form and Particulars of Claim and it is alleged that the defendant did receive them but failed to take action at the appropriate time.
  
• The address given by the claimant for service of the Claim Form and Particulars is that previously used by the defendant as their postal address. CPR 6.5 (6) does not require use of a defendant’s registered address.
  
• It is denied that the defendant is not aware of the subject matter of the claim, full details having been provided by the claimant on two occasions.
  
• It is denied that the claimant did not send a letter before action. The claimant sent two letters before action.
  
• It is denied that the defendant intends to defend the claim, as there is no conceivable defence.
  
• It is alleged that the claimant will be prejudiced if the judgement is set aside.
  

[reallymadwoman]

And the witness statement:-

 

Witness Statement

• I, (my full name) of (full address) am the claimant in this action and make the following statement regarding my reply to the application made by (defendant/applicant).
  

• On XXX the claimant wrote to the defendant seeking removal of inaccurate data previously placed upon the claimant’s credit reference file with ‘Experian’ by the defendant. The claimant also sought reimbursement of costs incurred and compensation for inconvenience. The letters were delivered to the defendant on XXX. (Exhibits DD, EE and FF)
  

• As the defendant failed to respond, the claimant wrote a letter before action on XXX again seeking removal of the data, costs and compensation together with disclosure of information necessary to the claimant’s case under Pre-Action Protocols 4.1, 4.2 and 4.3. (Exhibit GG)
  

• The defendant again failed to respond and the claimant therefore issued a claim in Northampton County Court.
  

• The defendant failed to acknowledge service of the Claim Form and Particulars of Claim or enter a defence and the claimant therefore sought an order for Judgement by Default which was entered on XXX.
  

• On XXX the claimant again wrote to the defendant seeking payment of the judgement amount. On the same date, the defendant’s solicitors wrote to the claimant stating that they would be seeking the order presently under consideration.
  

• The claimant has contacted Northampton County Court who confirm that the Claim Form and Particulars of Claim were served upon the defendant in accordance with CPR 6.2 and 6.3, and have not been returned to the court by Royal Mail as undelivered.
  

• The address given by the claimant for service of the Claim Form and Particulars of Claim is that consistently given by the defendant as their postal address since at least XXX. (Exhibits F, G, H, O, P, R, U, X, AA and CC) The claimant finds it difficult to believe that if this address is not correct, the defendant’s stationary has not been reprinted to reflect this fact.
  

• In any event, correct or not, it is clear that correspondence sent to the address given has been successfully delivered in the past, including the Notice of Judgement, and therefore it is extremely unlikely that the Claim Form and Particulars of Claim were not received for this reason.
  

• It is the claimant’s experience that the defendant rarely responds appropriately to postal communications even where these are acknowledged to have been received. The claimant works as a XXXXXX and is aware of the normal working practices of debt collection agencies in general, and has no reason to suspect that the working practices of (defendant) are different in any substantive fashion. Such companies are generally organised so that the majority of communication is undertaken via the telephone and such letters that are issued are of a standard wording. Indeed, the defendant went to rather extraordinary attempts to obtain the claimant’s unlisted telephone number, sending two postcards (Exhibits K and W) implying that a delivery had been attempted to the claimant’s address and inviting the claimant to telephone. As such, staff at the defendant’s offices would not be expected to have experience in written communication, and correspondence which is outside the ‘norm’ would only be dealt with by a very few senior staff. As a result, correspondence can easily be accidentally overlooked or even deliberately ignored if beyond the experience of the person appointed to respond.
  

• Evidence of the above is supplied by examination of the correspondence sent by the claimant to the defendant, summarised in Exhibit E. The claimant generally sends correspondence ‘Recorded – Signed For’ and as such has proof of delivery for letters sent to the defendant, only four out of fourteen of which have received a reply.
  

• The defendant is aware of the subject matter of the claimant’s claim, full details of which were given in letters dated XXX (Exhibits DD and EE) and XXX (Exhibit GG). In addition to the correspondence sent by the claimant, the defendant was contacted by ‘Experian’ (Exhibits HH and II) in connection with the disputed data, as a result of which the disputed data was eventually removed from the claimant’s credit file with that company. It is the claimant’s contention that the defendant failed to respond to the claimant’s correspondence because they had no conceivable defence and were hoping that removal of the offending data alone would satisfy any potential claim. In the alternative, it is alleged that it is an inevitable consequence of the lack of attention paid by the defendant to postal correspondence that such an error will occur through negligence.
  

• There is no conceivable defence to the claimant’s claim. It is acknowledged by the defendant that no sum is owed to them by the claimant (Exhibits X and CC). There is documentary evidence that, after the date on which the defendant knew or ought to have known this fact, the defendant published data to at least two credit reference agencies stating that the claimant did owe sums of money to the defendant (Exhibits JJ and KK). When challenged by one of the credit reference agencies, the defendant authorised removal of the offending data, which can only be taken as an admission that it was inaccurate.
  

• Despite eventual removal of the offending data from the claimant’s credit reference file with ‘Experian’, the defendant has not similarly removed data from the files of ‘Equifax’ and therefore the claimant is at risk of serious detriment in her financial affairs, and will thus be further prejudiced if the set aside application is granted and the defendant is permitted to continue unlawfully processing the claimant’s personal data. The courts attention is respectfully drawn to the case of Kpohraror v Woolwich Building Society [1996] C.L.C. 510 in which it was held that a presumption of some damage can be made in every case where the credit rating of an individual is put into question. (Exhibit LL)
  

• If however the application is granted, the claimant seeks leave from the court to amend the Particulars of Claim under CPR 17.1 in accordance with the draft Particulars attached (Document C). At the time the original claim was issued the claimant was under the mistaken impression that
  

a) The defendant had removed the offending data from the files of all credit reference agencies. Had the defendant complied with the relevant Pre-Action Protocols, the claimant would have been aware that this was not the case.

b) As a result the claimant believed that the damage caused was limited to the costs of corresponding with the defendant, ‘Experian’ and the Court, and the inconvenience of having to do so.

c) The claimant believed that no further damage would occur.

• As the defendant has continued to unlawfully process the claimant’s data even after clearly being aware that such data was inaccurate, the defendant has put the claimant at serious risk of further damage. (Details of why damage might occur, e.g trying to get a new mortgage)
  

• The particulars of claim as submitted are in draft form as the defendant and their solicitors have still not supplied information in their possession requested under Pre-Action protocols on XXX (to the defendant, Exhibit GG) and XXX (to the defendant’s solicitors, Exhibit MM). It is respectfully requested that the court order the defendant to supply the requested documentation in accordance with the attached draft order.
  

• In addition to permission to amend the Particulars of Claim, the claimant also respectfully seeks the court’s permission to enter an application for summary judgement under CPR 24.2 and 24.4 on grounds that the defendant has no real prospect of successfully defending the claim.
  

• The damage suffered by the claimant has been contributed to by the defendant’s conduct with regard to these proceedings. The defendant was given ample opportunity to deal with the claimant’s claim at an early stage and at minimal cost. The defendant’s failure to respond to correspondence and to comply with Pre-Action Protocols has led directly to the application presently before the court and, if permission is given, to the application to amend the Particulars of Claim. The claimant therefore respectfully requests that the court make an order in respect of costs with regard to both proceedings.
  

• The claimant’s costs for the present hearing are detailed herewith:-
  

a) research and preparation for the hearing

under CPR 48.6, 10 hours @ £9.25,

being the Litigant in Person rate £ 92.50

c) postage and stationary costs £ 10.00

Total £102.50

• The claimant’s costs for the further hearing are estimated to be
  

a) taxi fares to and from the Court £ 25.00

b) application fee £ 75.00

c) research and preparation 5 hours @ £9.25 £ 92.50

d) postage and stationary £ 10.00

Total £202.50

I believe that the facts stated in this witness statement are true.

Signed ………………………………. Date ………………………..

 

As with letters, you should not 'copy and paste' witness statements etc but there is nothing wrong with adapting something to suit, so long as again you are sure you understand what you are writing.

[reallymadwoman]

I made quite a few mistakes with the witness statement, the first being that it was far too long for a hearing that was only going to take 15 minutes. Do not assume that the judge will have read anything before the hearing - ideally he/she will, but there may not have been enough time.

 

The second mistake was that it was asking far too much in one go - refuse the set aside or give permission to amend the particulars of claim and for an application for summary judgement, make an order for disclosure, and grant costs.

 

We had 15 minutes, which was barely long enough to deal with the application, and by the time my turn came around it was getting very close to lunchtime. Judges are human, and they do like at least a few minutes break before they start their afternoon list.

 

As such, whilst the judge accepted my evidence that the DCA were very unlikely to have not received the claim form, he didn't have time to consider if they had any chance of defending and therefore had to give them a chance to enter a defence.

 

The judge advised against me changing my particulars of claim on the grounds that it would make the claim far more complicated and on a brief glance through, he would have to consider allocating to fast track rather than small claims. After he'd given the other side's solicitor a bit of a rocket for making an application for costs, I didn't dare mention mine and totally forgot the disclosure order.

 

Always assume that any letter you write will be read by a judge that you want on your side. Polite is a given, but also keep it factual and avoid 'tit for tat' bargaining such as if you pay now, I won't increase my claim. The judge didn't like it, and I suspect that was the main reason he advised against changing my POC. Of course, if I'd done it properly in the first place ....

 

One very important point the judge did make is that though CPR doesn't require that you use a company's registered address, had I done so he would have had no doubts at all about whether they got the claim form, so if you're suing a company, use their registered address.

 

Apart from my divorce where I had a solicitor and barrister to do the talking, this was my first ever court hearing and I had totally underestimated how scary it is. If possible, take someone with you for moral support. Make sure you know your evidence back to front and inside out, and make sure you can put your hand straight on the documents you are most likely to need. Bits of post-it notes make good index markers! Try to think of every possible question that the judge could ask, and have some sort of reply ready, but don't be rushed into answering if you're not sure. If you need to check a detail, go ahead and check it. If you need to ask the judge to make an order, make sure it's at the top of your note pad in big letters so you can't forget. It's very easy to get distracted when you've got a judge and a solicitor arguing technical points three feet away.

 

Above all, be realistic about the outcome. I got so carried away with researching and writing the witness statement, I lost sight of my original research - set aside applications are almost always granted - and so was really disappointed when I 'lost'.

Edited December 16, 2008 by reallymadwoman

[reallymadwoman]

When granting the application, the judge made an order that the draft defence filed should stand and that the case be allocated to small claims.

 

The defence:-

 

1. Unless stated to the contrary the Particulars of Claim are denied and the claimant is put to strict proof.

2. It is denied that the defendant was negligent as alleged. It is the defendant's case that the claimant had two accounts with OC, a current account and a credit card, the debt and agreement of which were the subject of an assignment to (assignee). (Defendant) was instructed in relation to the administration of the two accounts and collection of the debts. The claimant's credit records held by data processors such as Experian/Equifax would have been updated to reflect this.

3. Following the assignment of the two debts it became apparent that the claimant had on the face of it a dispute with the original creditor. It was decided by (assignee) and the defendant to recourse the two accounts back to OC and cease collection activity.

4. On (date 4 months after claimant's first letter) the defendant updated its credit reporting file requesting the removal of the two data entries. The file will be sent to Equifax/Experian on or about the (two weeks later). It is anticipated that two weeks later the credit records will be updated by the removal of the two entries made by the defendant.

5. The defendant at all material times acted in good faith and on instructions from (asignee) who had taken a lawful assignment of the two debts and agreements.

6. It is denied that the claimant's credit history was likely to be damaged as alleged and she is put to strict proof. The claimant has failed to show any loss or damage.

7. Subject to proof of joining 'CreditExpert', it is submitted that the claimant chose to join this service rather than had to as she alleges. The first 30 days of which is free followed by monthly payments of between £3.00-£5.00 approx. The subscription is cancellable by short notice.

8. The claimant's claim for £30.00 in respect of postage and stationary is denied as excessive and unnecessary. It is not clear if the claimant has included expenditure relating to her dispute with OC or has duplicated this item of claim.

9. The claim for £100.00 for 'CreditExpert' fees is denied and the defendant repeats paragraph 7 above. In the alternative the defendant will state this item of expenditure is remote and may not have been used solely for the purpose of this action and would have enabled the claimant to use it for other purposes related to her finances.

10. The claim for £120.00 time spent for dealing with this matter is denied as having no basis in fact or law. The claimant has not provided any breakdown of the calculation or her status. In any event the defendant will state this amount is excessive and unreasonable.

[reallymadwoman]

Having already received a copy of the defence, I wrote to the solicitors with my response.

 

Having considered the draft defence supplied it is abundantly clear that it has no prospect of success. So that you may advise your client as necessary, I will reiterate that there is documentary evidence that

• Your client was aware of the dispute in relation to these alleged accounts by XXX at the latest, and it is therefore arguable that their defence of ‘good faith’ could operate after this date.
  
• Your client accepted that no sums were due to them from me by XXX and X XX respectively, which places an effective absolute limit on your client’s defence.
  
• Your client did not place any information on my credit reference file until after XXX, i.e. after they had allegedly closed their files and returned the accounts to OC. ‘Good faith’ cannot possibly be used as a defence at this point. Either your clients unlawfully processed my data through negligence, or it was done deliberately in the full knowledge that the processing was unlawful. I would expect your client to prefer the former to the latter.
  
• Your clients ignored correspondence from me regarding the entries, when the matter could still have been rectified with minimal, if any, damage.
  
• Your clients removed the data from my credit reference files when challenged, implying that they knew the data was being processed unlawfully. It is noted that the data will be removed from the files of ‘Equifax’ by XXX, however I would enquire why this has not been done immediately bearing in mind the contents of the penultimate paragraph of my letter dated XXX. I have today received confirmation from ‘Equifax’ that they are unable to remove the entries without your client’s written authorisation.
  

In view of the above, it would seem that the only possible area of contention is over quantum. Lord Justice Evans in Kpohraror v Woolwich Building Society [1996] C.L.C. 510 stated that a presumption of some damage arises in every case where injury to credit occurs, and therefore I will be arguing that it is unnecessary to prove any particular loss or damage under this head of claim. I would point out that, in order to minimize any potential damage, I have refrained from applying for any form of credit since your client placed the inaccurate data upon my file as any subsequent refusal could only cause further damage. It is for this reason that the necessary house move has also been postponed. Had the intended move gone ahead, your clients would now be being held responsible for the additional cost of a ‘sub-prime’ mortgage. The alternative of a claim for the inconvenience of living in an unsuitable property is, I am confident, entirely reasonable. Lord Justice Evans further valued a claim for ‘injury to credit’ at £1000 plus the amount inaccurately stated to be owed, thus placing my claim in the region of XXX. I do in fact consider this to be rather excessive in the circumstances, and would be seeking damages limited to £5000 in my amended Particulars of Claim.

I will further be arguing that regular monitoring of my credit reference files to ensure that no further unlawful processing occurs is also entirely reasonable in the circumstances. In view of your client’s previous actions, I have absolutely no faith that they will abide by any undertaking not to further process my data and consider it to be essential to my peace of mind that I have regular proof that such processing is not being carried out. I have documentary evidence in the form of bank statements regarding the payments made to ‘CreditExpert’ and ‘Equifax’, and would consider a further period of membership of at least six months to be reasonable, however if your client wishes to quibble over these relatively trivial amounts, I am prepared to amend my claim to the cost of obtaining statutory reports from each of the three credit reference agencies on a monthly basis for a further period of six months, at a total cost of £36 for reports plus an allowance of £5 for postage and stationary. This claim will be in addition to membership of ‘CreditExpert’ for the period from XXX to the present, X months @ £6.99, total XXX and membership of ‘Equifax’ for X months @ £11.99, total XXX. The estimates of these costs contained within your client’s defence are wholly inaccurate.

With regard to my claims for postage and stationary, I would point out that these have been inflated solely by your client’s failure to respond to correspondence. A full breakdown of the amount of £30 is:-

a) Letters written to defendant, 12 @ £1.00 £12.00

b) Postage for above letters 12 @ £1.08 (Recorded) £12.96

c) Letters written to ‘Experian’ 3 @ £0.50 £ 1.50

d) Postage for above letters 3 @ £0.36 £ 1.08

e) Letter written to ‘Equifax’ £ 0.50

f) Postage for above letter £ 0.36

g) Letter written to ‘CallCredit’ and postage £ 0.86

Total £29.26

With regard to the claim for time spent dealing with this matter, again wholly due to your client’s failure to respond to correspondence, I have spent at least twelve hours just on writing letters, and further considerable time researching the Data Protection Act and obtaining legal advice. As this time could alternatively have been spent on far more enjoyable occupations, I consider it entirely reasonable to seek compensation from your client. At the litigant in person rate, which seems a reasonable estimate of the value of my time, this equates to at least £111.

[reallymadwoman]

The solicitors had obviously been taking lessons from their client, as I got no response at all. I think that by this point I was resigned to the fact that I would have to at least prepare for a final hearing, though I was hoping that settlement would be reached by the time we got to 'the steps of the court'.

With hindsight, it's fine to hope but prepare anyway.

[reallymadwoman]

In accordance with the court's order, the paperwork had to be filed and served on a Monday and I'd got mine all ready to post 'special delivery' to the solicitors on the Saturday and hand deliver to the court on the Monday.

On the Friday before 'bundle day', my latest batch of credit reports arrived showing that the DCA had searched my file 6 times over a very short space of time (probably to get a copy of my file, though I'd already given them several as part of the bundle for the set aside hearing) the searches being variously described as 'traces' and 'debt recovery'. I went ballistic. According to Equifax, the 'debt recovery' searches stay on your file for 6 years - which would be three years longer than the original defaults would have stayed on. I felt I had no choice but to do some emergency amendments to my 'bundle'.

[reallymadwoman]

Before I'd finished, the 'bundle' from the other side arrived on the Saturday morning. This consisted of a witness statement by a witness who would not be attending and a copy of my credit file. The witness statement basically repeated the defence word for word with the addition of a statement that as I already had defaults on my credit file, they couldn't have done any damage anyway.

[reallymadwoman]

My amended witness statement

 

Witness Statement

• I, (full name) of (address), am the claimant in this action and make the following statement from my own knowledge and experience. I am a litigant in person.
  

Background to the case

• The claimant received correspondence, dated XXX (Exhibit C), from the defendant, acting on behalf of XXX, seeking reimbursement of amounts alleged to be owed to OC in respect of two accounts and putting the claimant on notice that her personal data would be processed by them. The claimant responded on XX (Exhibit D) stating that she disputed that any amounts were owed to OC. The defendant did not reply.
  

• Having received no response other than a postcard (Exhibit E) requesting that the claimant telephone the defendant, the claimant subsequently wrote again to the defendant on XX (Exhibit F) and included a notice issued under s10 (1) of the Data Protection Act, 1998 (Exhibit G), requesting that the defendant cease processing her personal data. This letter was delivered to the defendant on XX. On XX (Exhibit H) the defendant acknowledged this letter with an indication that enquiries were being made.
  

• Despite the above, the defendant wrote to the claimant again on XX (Exhibit I) with a further demand for payment. The claimant responded to this correspondence, reiterating the dispute, on XX (Exhibit J).
  

• On XX the claimant received a further letter from the defendant stating that she had not responded to their previous correspondence (Exhibit K). As a result the claimant wrote a formal complaint to the defendant on XX (Exhibit L) requesting, inter alia, that her personal data be deleted from their records. This letter was signed for at the defendant’s offices on XX by ‘XX’.
  

• The claimant received a further demand for immediate payment from the defendant dated XX (Exhibit M), to which she responded on the XX (Exhibit N), again requesting that her personal data be deleted from their records. The defendant finally responded on XX (Exhibit O) stating that their file in respect of the alleged current account was closed, and on XX (Exhibit P) stating that their file in respect of the alleged credit card account was also closed.
  

 

• In respect of the alleged current account, the defendant has at no time responded to the notice issued under s10 (1) of the Data Protection Act, 1998.
  

• In respect of the alleged credit card account, the defendant responded to the notice issued under s10 (1) of the Data Protection Act, 1998, on XX (Exhibit P) stating that
  

‘we have not breached the Data Protection Act because we were assigned your debt in good faith’

Section 10 (3) (Exhibit G) of the Act states that

‘The data controller must within 21 days of receiving a notice under subsection (1) give the individual who gave it a written notice:-

(a) stating that he has complied or intends to comply …, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it …

The defendant should have responded to the notice issued under s10 (1) of the Act by XXX. Additionally, the response eventually given in respect of the alleged credit card account does not meet the requirements of s10 (3), but does imply that no further processing of the claimant’s personal data will take place.

• As a result of the dispute with the defendant, the claimant joined ‘CreditExpert’ on or around the XXX. At this point two entries relating to the disputed accounts were present on her credit file, with the originator of the information shown as OC. These entries were removed sometime before XX, following notices also issued to OC under s10 (1) of the Data Protection Act. The claimant continued to check her credit reference file on a monthly basis. When checked on or around the 1st April, no entries by OC or the defendant were present.
  

• On the XX (Exhibit Q) the claimant noted that the defendant had placed two ‘default’ entries on her credit reference file. The claimant therefore wrote to the defendant on XX (Exhibit R) seeking the removal of this data and also seeking reimbursement of costs incurred and compensation for inconvenience. The letters were delivered to the defendant on XX.
  

• As the defendant failed to respond, the claimant wrote a letter before action on XX (Exhibit S) again seeking removal of the data, costs and compensation together with disclosure of information necessary to her case under Pre-Action Protocols 4.1, 4.2 and 4.3.
  

• The defendant again failed to respond and a claim was issued in Northampton County Court (Exhibit T).
  

• The defendant failed to acknowledge service of the Claim Form and Particulars of Claim or enter a defence, and an order for Judgement by Default was entered on XX (Exhibit U).
  

• On XX (Exhibit V) the claimant again wrote to the defendant seeking payment of the judgement amount. On the same date, the defendant’s solicitors wrote to the claimant stating that they would be seeking an order for judgement to be set aside. This order was granted following a hearing on XX.
  

• On XX (Exhibit W) the claimant sent to the defendant’s solicitors, as requested, copies of all correspondence regarding the claim. The claimant also made a further request for the information originally asked for on XX (Exhibit S).
  

• As no response had been received, a further letter again asking for the outstanding information was sent by the claimant to the defendant’s solicitors on XX.
  

• The defendant’s solicitors acknowledged receipt of both letters on XX by provision of a draft defence (Exhibit Y). The claimant responded to the defence on XX (Exhibit Z).
  

• The claimant has received no further correspondence from the defendant or their solicitors with regard to the information requested.
  

The claimant’s claim

• The claimant alleges that the entries were negligently placed upon her credit reference file by the defendant as the defendant knew or ought to have known by XX at the latest (when they can be proved to have received the claimant’s correspondence) that the debts were disputed. The technical guidance issued by the Information Commissioner’s Office (Exhibit AA) states in paragraph 43, page 16
  

‘If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed.’

Even allowing for some period of time for the defendant to investigate the nature of the dispute, the defendant’s enquiries were quite clearly concluded by XX at the latest, and they were quite clearly satisfied at that stage that there was a genuine and unresolved dispute. Further, the defendant’s correspondence of that date implies that no further processing of the claimant’s data will take place.

• The entries were placed upon the claimant’s credit reference file between XX and XX, after the defendant was aware that the information was inaccurate. The defendant alleges that the entries were placed upon the claimant’s credit reference file when the alleged debts were assigned to them in 2007. So far as the claimant is aware, this assignment took place in XX of 2007. As the entries placed upon the claimant’s credit reference files by OC were not removed until after XX, it would in any event have been impossible, or at the very least wholly unfair, for the defendant to have placed the defaults on file until after this date. The claimant will maintain that the entries were not made until after XX. Had the defendant complied with Pre-Action Protocols, the exact date would be known.
  

• In any event, the credit reference files obtained by the claimant show that the defendant was ‘updating’ information on a regular basis after the entries had been placed upon her file and after the defendant had no grounds to believe that they were entitled to do so. The file dated XX (Exhibit BB) shows the entry to have been updated on XX.
  

• As the defendant knew, or ought to have known, that the information recorded was inaccurate, it must have been negligently placed upon the claimant’s credit reference file. According to the Information Commissioner’s published guidance, a data controller remains responsible for ensuring that all data processed on his behalf is accurate. A reasonably prudent person would not record data known to be inaccurate, therefore the defendant either negligently recorded the data without regard as to whether or not it was accurate or, knowing the data was inaccurate, negligently recorded it with the credit reference agencies anyway. Alternatively, once the defendant became aware that the data was inaccurate, they negligently failed to ensure that the data was removed from their records and thus not included in information sent to the credit reference agencies.
  

• The defendant claims to have acted in good faith and on the instructions of ‘XX’. Whilst the defendant may have initially acted in good faith that the debts were due as stated, they could not be considered to be acting in good faith once they can be proved to be aware of the dispute (i.e. on XX), and certainly not once they had accepted that no sum was due to them and closed their files (XX).
  

• Had the defendant genuinely believed that the data was accurate, then there is no reason why they would have removed entries from the files of ‘Experian’ when challenged. Though the defendant did not respond to correspondence from the claimant, they did respond to queries made via Experian’s ‘CreditExpert’ service, removing one of the entries on or about XX (Exhibit CC) and the other on or about the XX (Exhibit DD).
  

• The defendant did not similarly remove data from the files of ‘Equifax’. Even when the claimant submitted copies of all correspondence to the defendant’s solicitors, received by them on XX, the defendant chose to wait a month before requesting removal of the inaccurate data, knowing that it would take a further month before the entries were eventually deleted.
  

 

• The Data Protection Act, 1998 is absolutely clear on the conditions to be met before personal data is processed. Such processing must meet all of the Principles contained in Schedule 1 to the Act (Exhibit EE). These Principles are:-
  

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless:-

a) at least one of the conditions in Schedule 2 is met ….

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. ..

• With regard to Principle 1, in processing the claimant’s data the defendant has to be able to meet at least one of the conditions in Schedule 2 (Exhibit FF). These are
  

1. The data subject has given consent. Not only has the claimant never given consent for the defendant to process her personal data, but she has repeatedly requested that any such processing cease.

2. The processing is necessary for the performance of a contract to which the data subject is a party or with a view to entering such a contract. The claimant does not have and does not wish to have any contract with the defendant.

3. Not relevant.

4. Not relevant.

5. Not relevant.

6. The processing is necessary for the purposes of the legitimate interests of the defendant. Whilst this condition may have applied prior to the defendant becoming aware of the dispute or prior to the defendant’s closure of their files, they can not be said to have any legitimate interest in the processing of the claimant’s personal data after XX at the latest.

Further, as stated in 19 above, the recording of a default on an account which is genuinely disputed is likely to be considered to be unfair by the Information Commissioner’s Office. It is therefore submitted that the defendant’s processing of the claimant’s personal data is both unfair and unlawful and on this basis alone the defendant is not entitled to process the claimant’s personal data.

• Principle 4 of Schedule 1 has clearly been breached as the data is neither accurate, in that no sum is in fact owed to the defendant, nor up to date, in that even if the defendant could be held to be entitled to record the data initially, once aware of the dispute or once their files were closed, the defendant should have amended the data to reflect this fact.
  

• The defendant is also in clear breach of Principle 5 of Schedule 1 as there is no legitimate reason why the claimant’s data should have been retained after XX. In fact the data was still held by the defendant and was still being processed up to at least the XX. The claimant has no way of knowing what, if any, data is still held by the defendant.
  

• The court’s attention is drawn to the credit reports from Experian dated XX (Exhibit GG) and Equifax dated XX (Exhibit HH) which show that the defendant has ‘searched’ the claimant’s credit file four times on XX, once on XX and once on XX. The four searches on XX are recorded as ‘traces’, falsely implying that the claimant has failed to provide a forwarding address to a creditor, and the remaining two searches as being for the purpose of ‘debt recovery’, falsely implying that the claimant is in debt to the defendant. These searches will be held upon the claimant’s credit files for at least twelve months and removal of the records can only be authorised by the defendant (Exhibit II). The additional entries now made to the claimant’s file by the defendant are capable of doing as much harm as the originally disputed entries and demonstrate the defendant’s continued processing of the claimant’s personal data.
  

• Both credit reference agencies state that searches of a credit file can only be lawfully undertaken with the express consent of the individual involved (Exhibit JJ). No such consent was at any time either sought by or given to the defendant. The claimant can only conclude that in relation to the processing of personal data, the defendant is willing to circumvent accepted practice in pursuit of their own ends, and therefore demonstrates a flagrant disregard for the consequences of any such unlawful and unfair processing. The defendant would seem to be completely oblivious to the fact that any search was in any event wholly unnecessary since they have previously been furnished with copies of the claimant’s credit files.
  

• Lord Justice Evans in Kpohraror v Woolwich Building Society [1996] C.L.C. 510 (Exhibit KK) stated
  

‘The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.’

The claimant will allege that, as such, it is not necessary to show a particular loss or damage under this head of claim. It is widely known that ‘negative’ entries on a credit reference file can and do prevent someone from obtaining credit at all, or make credit only available at ‘sub-prime’ rates, and the court’s attention is drawn to the leaflets issued by the Office of Fair Trading (Exhibit LL) warning of this probability. The total number of ‘defaults’ recorded and the number of searches previously undertaken are both used by lenders.

• In fact, as the claimant was aware of the negative entries upon her credit record, she avoided making any applications for credit as any searches and subsequent refusal would also have been recorded and compounded the potential damage. The claimant did hold a ‘store card’ with a major retailer and had previously cleared the balance on the card when due, thus effectively obtaining up to six weeks’ interest free credit. On or around the XX the claimant entered this store with the intention of purchasing a number of items using the store card. The card had, unknown to the claimant, expired, but when invited to make a new application, the claimant felt obliged to decline and had to pay for the items via an alternative means (Exhibit MM). It would be possible to calculate the exact sum of interest lost on the claimant’s current account, however this is unlikely to be a significant sum.
  

• Additionally, the claimant’s current accommodation is no longer suitable to her needs and it was intended that the family would be seeking alternative accommodation. Prior to XX the claimant had registered with a number of estate agents and had begun preparations for marketing her existing property. These preparations have had to be suspended pending the removal of the entries on the claimant’s credit reference file as the claimant is fully aware of the potential effect of the entries on any mortgage application.
  

• As such, though no or no significant loss has occurred due to the application of, for example, a higher than normal interest rate, the claimant has been put to inconvenience. As an analogy, if the claimant’s vehicle had been negligently damaged by the defendant, the claimant would be entitled to claim for any loss of use of the vehicle whether or not this had resulted in any actual cost. In fact, the claimant in these circumstances would be penalised for failing to mitigate any loss, therefore it is reasonable that a claimant who so mitigates losses, for example by choosing to walk or cycle, that they are insignificant, should not as a result be prevented from making a claim for the inconvenience of doing so.
  

• It is also brought to the court’s attention that the claimant has, on two separate occasions, believed that the disputes regarding these alleged debts to have been resolved, firstly regarding the original dispute with OC, and secondly regarding the dispute with the defendant. The claimant was therefore somewhat more than dismayed to discover that not only had the problem recurred, but also that it was almost immediately apparent that it would not be a simple nor quick matter to remedy. It is submitted that the defendant’s conduct in failing to reply to correspondence and failing to comply with Pre-Action Protocols has compounded the distress and inconvenience caused. Had the defendant responded to the claimant’s initial letter, dated XX, with an undertaking to remove the disputed entries and cease processing the claimant’s personal data, then the claimant would have considered the matter to be closed.
  

• The claimant joined ‘CreditExpert’ in order to monitor her credit file because of the dispute with the defendant, the defendant having put the claimant on notice with their initial contact that they intended processing the claimant’s personal data. Had no entries been made by the defendant within six months of resolution of the dispute, it was the claimant’s intention to cancel the membership with the required one month’s notice. Current fees are £6.99 per month, and the claimant encloses copy bank statements in support (Exhibit NN). The claimant originally intended to maintain membership for a further six months, however in view of the defendant’s defence, membership has now been cancelled. As an alternative, at greater inconvenience, the claimant has obtained copies of her statutory report from Experian at a cost of £2 per month, available evidence of payments is enclosed (Exhibit NN), and intends to continue doing so for a further six months. The total costs of membership and statutory fees are:-
  

1. Membership 7 months @ £6.99 £48.93

2. Statutory fees 5 months @ £2.00 £10.00

Total £58.93

Had membership been maintained as intended to January, 2009, the total cost would have been £97.86.

• Had the claimant not joined as a member, the total cost of the reports actually obtained would have amounted to at least £30 as the claimant was able to check her report as often as necessary, and the reports were available immediately as opposed to being sent by post within seven days, thus minimising the worry and inconvenience caused by the defendant. Further, with the assistance of ‘CreditExpert’ the claimant was able to have the disputed entries removed reasonably quickly (in about eight weeks). This is contrasted with the difficulties of having the disputed entries removed from the files of ‘Equifax’(Exhibit OO).
  

• The claimant also joined a similar scheme operated by ‘Equifax’ for the same purpose on or around XX at a cost of £11.99 per month. This membership was subsequently cancelled due in part to an entirely unrelated matter and the fees refunded, and therefore any claim under this head is withdrawn. The claimant has obtained copies of her statutory report, again at a cost of £2 per month, and again intends to continue doing so for a further six months, total cost 7 @ £2.00, total £14.00.
  

• The claimant has no other purpose for which she would want or need to join either ‘CreditExpert’ or ‘Equifax’ other than to monitor the unlawful processing by the defendant. It is denied that this item of expenditure is remote, as it is entirely predictable that where unlawful processing of data is taking place, monitoring of such processing will be considered a reasonable response. The ‘CreditExpert’ service is in fact marketed as being for this purpose, and the advantages of membership of the service are clearly demonstrated by the fact that the disputed entries were removed from ‘Experian’s’ files rather more promptly than the entries in ‘Equifax’s’ files. In fact, if the claimant had not joined ‘CreditExpert’, it is entirely possible that the first the claimant would have known about the disputed entries would have been following an unsuccessful mortgage application. The extent of the potential damage in that situation is far greater than the costs to which the claimant has actually been put, for example wasted survey fees, mortgage application fees and legal costs. Additionally, if the claimant had not continued to obtain copies of her credit reference files on a regular basis, she would not be aware of the defendant’s continuing processing of her personal data. It is submitted that the defendant’s repetitive searching of the claimant’s credit reference files is sufficient justification for continued monitoring.
  

• The third credit reference agency, Callcredit, does not operate a membership service and the claimant therefore obtained a statutory report from them, at a cost of £2.00. There were no entries by the defendant on this file, though it is not clear whether this is because they had already been removed or because the defendant does not make use of this agency. As a precaution, the claimant will obtain a further copy of her file from Callcredit in six months, the total cost therefore being £4.00.
  

• The claimant details postage, printing and stationary costs as follows:-
  

a) Letters written to XXX, 12 @ £1.00 £12.00

b) Postage for above letters (recorded) 12 @ £1.08 £12.96

c) Letters written to ‘Experian’ 3 @ £0.50 £ 1.50

d) Postage for above letters 3 @ £0.36 £ 1.08

e) Letter written to ‘Equifax’ £ 0.50

f) Postage for above letter £ 0.36

g) Letter written to ‘CallCredit’ and postage £ 0.86

Total £29.26

• It is submitted that, in view of the defendant’s apparent inability to respond to correspondence and/or propensity to deny receipt of correspondence, it is entirely reasonable for the claimant to send all correspondence via the ‘recorded – signed for’ service. It is also submitted that it is entirely reasonable for the defendant to meet the costs of correspondence arising as a direct result of their negligent and unlawful processing of the claimant’s personal data.
  

• As a direct result of the unlawful processing of the claimant’s data, the claimant has had to spend a considerable amount of time writing to the various parties and seeking legal advice. The claimant estimates that she had spent, at the time the claim was originally submitted, a total in excess of fifteen hours writing letters and seeking advice, and has therefore been put to considerable inconvenience. The claimant is not in paid employment and therefore has not suffered loss of earnings, however some compensation for the loss of time which could have been put to rather more enjoyable purposes would seem reasonable. The claimant would claim at the litigant in person rate, as specified under CPR 48.6, of £9.25 per hour, total £138.75.
  

• The claimant’s total claim is therefore:-
  

a) Experian/CreditExpert £ 58.93

b) Equifax £ 14.00

c) Callcredit £ 2.00

d) Postage and stationary £ 29.26

e) Inconvenience £138.75

£242.94

 

• Finally, it is submitted that the defendant’s behaviour in dealing with this matter has substantially contributed to the costs and inconvenience to which the claimant has been put. The defendant has consistently failed to respond either appropriately or at all to the claimant’s correspondence, has failed to comply with Pre-Action Protocols, and has compounded the situation by continuing to add inaccurate data to the claimant’s credit reference files and denying receipt of correspondence which can be proved to have been delivered.
  

I believe that the facts stated in this witness statement are true.

Signed ………………………………. Date ………………………..

[reallymadwoman]

I spent the next week basically hoping that I would receive some offer of settlement, but with only 4 days to go before the hearing I decided I'd better get my act together and put together exactly what I intended to say.

According to the leaflet sent with the notice of hearing, I would have just under half of the allocated time to state my case, so I was working on about 20 minutes. I assumed that the Judge would have read my witness statement, so was basically working on expanding and clarifying what was in there.

This is the 'polished' version which I practised reading out loud firstly to check the timing and secondly because some things that read well just don't sound right.

 

Summary

• Sir(reminder of how to address the judge, in case I went blank), as a brief summary of the background as stated in my witness statement, the defendant wrote to me in XX regarding two outstanding accounts allegedly owed to XX. No such sums were owed, and following further correspondence, the defendant eventually acknowledged this on XX this year in respect of one account and XX in respect of the other.
  
• As the defendant had stated in their initial correspondence that they would be processing my personal data, which I took to mean that they would be recording information on my credit reference files, and because they failed to respond appropriately to my initial correspondence, the defendant was issued with a notice under s10 of the Data Protection Act, 1998 on XX asking that they cease any such processing.
  
• The defendant cannot dispute that they knew by XX when they can be proved to have received my correspondence, or alternatively XX when this correspondence was acknowledged, that they knew of the dispute regarding these alleged accounts. The defendant also cannot dispute that by XX at the latest that they had accepted that no sum was due to them by me.
  
• Despite the above the defendant continued to record ‘defaults’ on my credit reference file until some time in XX. The defendant can be proved to have been processing my personal data at least until the XX.
  

The defendant’s negligence

• Under the Data Protection Act, 1998, the defendant has not, since XX at the latest, had any lawful reason to process my personal data at all for the reasons given in my witness statement. In view of the guidance issued by the information commissioner’s office (Exhibit AA), I also do not believe that the defendant had any lawful reason to register ‘defaults’ with the credit reference agencies after XX.
  
• Though it is to some extent irrelevant exactly when the ‘defaults’ were placed upon my credit reference files, I am absolutely certain that, though the report was viewed online and therefore I cannot produce it in court, no ‘defaults’ in relation to these alleged debts were on my file on XX. Had I known that the defendant was going to place the defaults on my file after this date, I would have printed the report. Even if the inaccurate data had been placed upon my files at the date of the assignment, as alleged by the defendant, then it should have been removed on XX at the latest.
  
• I do not therefore believe that the defendant’s claim to have been acting ‘in good faith’ can hold at all after XX and arguably cannot hold after XX. The instructions of any other party and the lawful assignment or otherwise of the accounts are in this instance irrelevant, as the defendant, as data controller, remains solely responsible for ensuring that personal data processed by them is lawfully, fairly and accurately processed in accordance with the provisions of the Data Protection Act, 1998.
  
• That Act places the defendant under a duty of care (the first step in proving negligence is to prove that a duty of care existed) to process my data fairly and accurately. The evidence submitted shows that any reasonably prudent person is aware that unwarranted ‘defaults’ recorded to a person’s credit reference file are likely to cause damage or loss (so the damage is 'reasonably foreseeable'), and therefore the defendant has breached this duty of care by failing to process the data either accurately or fairly. As such, the defendant must have acted negligently in recording the defaults, or alternatively in failing to remove them in a timely fashion. I am unable to conceive of any reasonable explanation for the defendant’s conduct other than negligence.
  
• When challenged, the defendant did eventually remove the data from my credit reference files, which can only be an admission that it should not have been placed there. However, the defendant cannot be said to have acted quickly to correct their error.
  
• Nor can the defendant be said to have acted prudently since. It is also common knowledge that in addition to the total number of defaults recorded, lenders take into account the number of previous searches of a potential borrower’s credit reference file. For reasons known only to themselves the defendant has, since they became aware of these proceedings, chosen to unlawfully ‘search’ my credit reference files on six occasions. It is my understanding that multiple searches undertaken over a short space of time are often taken to be evidence of potentially fraudulent applications, for example as a result of identity theft. The defendant’s recent conduct has in effect entirely negated all my efforts at mitigating any potential loss, and unless the defendant authorises the removal of these search records, I will be effectively prevented from any application for credit for at least a further twelve months. There is a suggestion that the searches recorded as being for the purpose of ‘debt recovery’ will remain on my file for six years, i.e. until 2014, whereas the originally disputed data would have been removed by 2011 at the latest. This further unwarranted processing is, in my view, completely inexplicable and indefensible.
  

Injury to credit rating

• Kpohraror v Woolwich Building Society case. This case relates to a claim for breach of contract rather than negligence, however it raises important issues as to whether it is a matter of fact that some damage arises in every case where there is injury to the credit rating of an individual, whether or not that individual is a trader. I would assert that since this case was heard, the credit rating of an individual has become even more important, not just for such things as mortgages and hire purchase as discussed in the case, but in fact for such everyday requirements as a current banking account and the ability to pay bills via direct debit.
  
• Lord Justice Evans held in 1995 that a presumption of some damage would arise in every case where there was injury to credit regardless of the status of the individual, and in view of the increasing need for credit facilities, I would submit that this element of damage can only have increased in the intervening period.
  
• As an example, where an applicant for a current bank account does not have an acceptable credit history, they will generally only be offered a ‘basic’ account, with no overdraft facility, no debit card and no direct debit facility. In comparison with a standard bank account, the user of a basic account is going to suffer both inconvenience and expense. To be even more specific, if only a basic bank account were available to me and I needed to make a purchase at my local supermarket but did not have sufficient cash available, I would either have to use their cash machine at a charge of £1.50, or travel to the town centre to use a free cash machine at a cost of £2.80 in bus fares. I would also incur charges of approximately £20 per month (5 x £4) for paying bills by means other than direct debit.
  
• Thus I would submit that there is more than sufficient evidence that any injury to the credit rating of an individual can and does cause damage, and that any such damage is a reasonably foreseeable consequence of the injury. Indeed, the defendant’s witness in describing my credit file as ‘far from perfect’ is in effect acknowledging that defaults have a damaging effect. (there has to be a link between the negligence alleged and the damage - 'causation')
  

Damage as a result of the injury to my credit rating

• Had I not been aware of the entries placed upon my credit reference file by the defendant, the damage caused could have been considerable. As I was aware of the entries and the potential risk of further damage as a result of failed applications for credit due to recording of the associated searches, it was as much in my interest as that of the defendant to mitigate the potential loss so far as possible, and as a result the actual quantifiable damage due to injury to credit is minimal. I would refer to the purchase intended to have been made via store card as an example. I don’t know how much interest was lost on my current account and have no idea how such an amount would be calculated, however the total interest credited to my account for last month amounted to only £2.41, so I suspect it would be only pennies.
  
• However, I have, in making every possible effort to mitigate any loss, suffered considerable inconvenience. In some instances, for example having to pay immediately for items purchased rather than using a store card, that inconvenience is trivial assuming that, as was the case, sufficient funds are available, however the inconvenience of having had to wait in excess of six months to restart our planned house move is substantial, and no one could fail to be aware that in the intervening period the economic situation has worsened considerably which could easily have a negative effect both on the time taken to sell our existing property and the availability of a suitable alternative.
  
• We may be lucky, sell quickly and find an alternative property at a lower price than we would have paid six months ago, in which case the wait could be considered financially beneficial. Alternatively, we may now find it impossible to sell our existing property and still be trying in a year, by which time it is highly likely that I will no longer be able to manage the stairs at all. In either event the delay has caused inconvenience in that the existing property is already no longer suitable to my needs and cannot be adapted to meet them.
  
• The defendant has stated in their witness statement that no injury to my credit rating could have occurred because of two defaults already registered. Apart from the fact that the evidence supplied was obtained unlawfully, I would submit that this evidence is in any event irrelevant. Lenders are most commonly concerned with the total number of defaults recorded, not the details of each. Two defaults are only indicative of a temporary financial difficulty, particularly where it can be shown that it is a condition of the sale of my property that these debts be cleared from my ex-husband’s share of the proceeds, and which fact would of course be communicated to any potential lender. Four defaults however would instead paint a picture of severe over-indebtedness and a lack of adequate financial planning which would quite rightly discourage any potential lender whatever the circumstances under which the debts arose.
  
• In any event I view the defendant’s argument that ‘someone else had done it first’ as a simple attempt to deflect fault elsewhere. I note that the defendant makes no mention of the five other accounts with perfect history recorded on the document which they supplied. The report in my possession from the same company in fact shows eight such accounts.
  

Costs incurred

• Turning to actual costs incurred, these are fully detailed in the witness statement with evidence (no claim without evidence is going to be accepted - keep absolutely everything!) where available. I would reiterate that if I had not been a member of the ‘CreditExpert’ service, I would not have known of the inaccurate and unwarranted entries made to my credit file by the defendant and could not therefore have gone to such lengths to mitigate any potential loss. It was the defendant’s own conduct in failing to respond appropriately or at all to my correspondence which led me to suspect that unlawful and/or unwarranted processing of my personal data was likely and to therefore join a service which permitted me to monitor any such processing. The defendant’s recent conduct in continuing to unlawfully process my personal data has only served to underline the necessity for such monitoring.
  
• I would submit that joining this service was a reasonable and predictable response to the defendant’s actions or lack of them. Had the defendant responded appropriately both to the notice issued under section 10 of the Data Protection Act, 1998 and to my correspondence, monitoring of any processing would have been entirely unnecessary. (countering the argument that this damage is too remote)
  
• In addition, the ability to check my credit report immediately and assure myself that, for example, the defaults had been removed, provided considerable peace of mind and served to minimise the worry and distress caused. In view of the defendant’s recent behaviour, I sincerely wish that I was still a member and could be sure what, if anything, they have done to my credit reference files since the last reports. Waiting a full month between applications, particularly when those applications take a further seven days to arrive via the post, is rather stressful.
  
• It is difficult to put into words the sheer frustration which I have suffered in attempting to resolve what I initially considered to be a relatively straightforward error which could be quickly rectified. I do not owe the sums stated, or any other sum, to OC, and therefore mistakenly believed that one letter informing the defendant of this fact would be sufficient. Once this error was eventually rectified and I believed the matter to be closed, to discover that the defendant had placed inaccurate and unwarranted ‘default’ markers on my credit file some weeks later caused considerable concern and distress, particularly as I was by then rather more familiar with the defendant’s ‘business style’ and had no expectation of a quick resolution to this problem.
  
• It would not be an understatement to say that I was absolutely furious to discover that, having finally removed the ‘defaults’, the defendant then chose to make multiple unauthorised searches of my credit reference files.
  
• I would submit that even the most cursory examination of the correspondence between myself and the defendant amply demonstrates the complete lack of care and attention which the defendant has exercised in dealing with this matter. From the outset, the defendant has consistently ignored my correspondence, and rather than making any attempt to resolve problems has repeatedly compounded them. No reasonable lender considering my credit reference file now could do anything other than refuse credit. Even if the multiple searches recently added are not considered to be evidence of potential fraud, the reasons given for the searches would lead that lender to believe that I have moved without providing a forwarding address and owing the defendant a sum of money, neither of which is true and both of which are even more damaging than the defaults previously recorded. In the modern world many people are subject to temporary financial difficulties for perfectly legitimate reasons, however failing to provide a forwarding address to a creditor could not fail to be considered an attempt to avoid repayment of debts.
  
• In addition to compensating me for the actual costs incurred in resolving these problems, I consider it entirely reasonable to ask the defendant to make some recompense for the amount of time I have had to devote to this matter, particularly as this is almost entirely due to failings on the part of the defendant. I would have considered it reasonable to have to write no more than two or three letters in order to rectify the original problem, and had the defendant had proper procedures in place to ensure that data was being processed fairly and accurately, the second problem should never have occurred. Even allowing for the intervention of ‘human error’, my initial letter regarding the defaults, of XX this year, should have been acted upon promptly, thus effectively bringing this matter to a satisfactory conclusion.
  
• The defendants actions in ignoring that and subsequent correspondence effectively left me no alternative but to seek redress through the courts. To be entirely honest, I had given very serious consideration to discontinuing this action once I was certain that the ‘defaults’ had been removed from my credit reference files, as this was the outcome I originally wanted. However, discovering the subsequent entries made by the defendant has in effect left me no option but to continue as it seems to be the only way I can try to ensure that the defendant complies with the law regarding processing my personal data.
  
• I apologise to the court for not including this request in the documents previously filed, however I would ask for some leeway as a litigant in person. In view of the extreme time constraints under which I had to prepare the court documents, I unfortunately omitted to respectfully request that in addition to awarding whatever sum is considered reasonable in respect of the costs incurred and distress and inconvenience caused, the court give consideration to making an order under s. 14 of the Data Protection Act, 1998, subsections 1 and 4, that the defendant erases or destroys any of my personal data held by them, and under subsections 3 and 5 that the defendant notify any third parties to whom the data have been disclosed of the erasure or destruction of the data. In the absence of such an order, I now have absolutely no confidence that the defendant will not repeat their recent conduct.
  

Of course the first draft of this 'speech' was nothing like as comprehensive, and on the off chance it will help, I thought I'd give an outline of how I got here.

To do the first draft I used my witness statement to firstly construct a (brief) summary of the background, just to set the scene. I then found (on Wikipedia) an explanation of negligence which gave me a structure to base my arguments around, though it might have been helpful if I'd done that before I even issued proceedings!

To that basic argument I added any points from the witness statement that I thought were worth expanding and then checked my 'speech' against the defence and the other side's witness statement to make sure I'd covered all of their points. Job done.

[reallymadwoman]

When nothing came in the post the day before the hearing I think I finally accepted that I would have to turn up in court and had a little panic, then calmed down and concentrated on making sure that if I lost, it wouldn't be through lack of preparation.

I had two ring binders ready. The first had an exact copy of the 'bundle' submitted to the court and the other side with the addition of bits of 'post-it' notes marking documents which I thought I was most likely to need to refer to. In the very front of that binder I had my speech and the index to all the documents I had submitted.

The second binder had all the original documents (including about twenty credit reference files!) again in the same order as the court bundle. When preparing that bundle I'd definitely gone down the route that if there was even a remote possibility that a document might be needed, it should be included. At the front of that binder was my 'court papers' file, starting with the claim form and ending with the defence's witness statement.

As well as checking the binders (and testing my ability to find stuff by picking documents at random and locating them) I also practised my speech until I knew parts of it by heart. This is of course entirely unnecessary, but it did prove useful that I knew my case so well.

[reallymadwoman]

This is probably obvious, but I think worth saying anyway. Don't leave getting to the court on time to chance! Especially if you haven't been there before, make sure you know exactly where you are going even down to where the bus stop is or where the car park is (and an alternative in case that one is full). If you're planning to use public transport, have a phone number for a local taxi service handy, just in case. And in case of a complete disaster, make sure you have the phone number for the court so you can contact them to either say you will be a little late or that you won't make it.

If you can, it would actually be worth visiting the court building before the day of your hearing just so you can find out where you have to go to report to the usher and where such things as the toilets are. From my first visit for the set aside hearing, I'd learnt that I needed someone with me. The interior doors in the building are really heavy (even the door to the Ladies) and impossible to negotiate alone whilst using a walking stick and carrying a briefcase full of folders. Though my daughter's specified role was bag carrier and door opener, she was useful company too. Though of no practical help with the actual case, just having someone to make comments to in the waiting room (we had to wait an hour and a half) and having someone 'on your side' in the actual hearing was far more important. If you can possibly avoid it, don't go on your own.

[reallymadwoman]

Being the sort of person who is terminally early for everything, we arrived at the court 40 minutes early and settled in the waiting room with our books. I'll admit that I wasn't actually reading, I was far too nervous, but I tried to appear to be totally relaxed and totally concentrating on the book. Looking and pretending to be confident works for me.

The solicitor for the other side turned up about 10 minutes before the hearing was due to start and introduced himself, then asked me for a private word. Though my hopes of settlement without going through an actual hearing wanted to raise themselves, I squashed them firmly and concentrated on the advice I'd read on the forum. Listen politely and say as little as possible.

No offer was forthcoming, and I don't actually know what he wanted to achieve from our little chat unless it was to see how confident I was feeling, in which case giving every indication of being disturbed in my reading was possibly the best thing I could have done.

We were third on the list for the morning session, and the court was really, really busy with another two lists going on in different rooms. Luckily number two on the list (CL Finance anyone?) didn't turn up so we only had to wait through one other case.

[reallymadwoman]

The hearing itself was held in the Judges office. The first thing I did was ask for permission for my daughter (an adult, not a child!) to go in with me which was granted without question.

I'm told that judges can organise small claims hearings however they see fit, so what follows is not necessarily how any other hearing will proceed.

 

The judge sits at the head of the table and does all his talking into a microphone. The claimant sits on one side of the table, and the defendant on the other, and there is a second microphone presumably to pick up anything said by either side. I only mention it as it did throw me a little bit as I didn't know if I was expected to talk to the microphone or the judge. In the end I opted to ignore the microphone completely and prepare to be corrected if I'd got it wrong.

The judge began by saying he hadn't had time to read any of the papers, at which point my heart sank. It might be worthwhile planning which documents you think it would be most relevant to point out to the judge in those circumstances.

 

However, at this point all my planning started to pay off. The judge was desperately searching through various piles of paper looking for the claim form, but I was able to go straight to it and score some brownie points by making things easier for the judge.

 

Having read the claim form, the judge asked me if I owed any money to the OC. I had of course planned for this question and was able, with a completely straight face, to say no. The judge then asked the solicitor if the defence agreed that I owed nothing to the OC. The solicitor hummed and hawed a bit, then said he had no instructions on that point so would neither agree nor disagree.

 

Up to that moment I had more than half expected that the defendant was either going to make a counter claim for the £7,500 they said I owed or was going to include some sort of proof that I owed the money in their bundle. When no counter claim materialised and then nothing in the bundle, just in case I prepared arguments to at best have the hearing adjourned if they produced something last minute.

 

Though I was therefore very pleased with the solicitor's reply, the judge was not and started quite a technical discussion with the solicitor about evidence as to whether the money is owed or not being crucial to the claim. The solicitor then tried to say it was up to me to prove the claim so he wasn't obliged to supply evidence that the money was owed which really upset the judge. He said something like 'and what evidence do you think Ms X should supply to show that no money is owed? Perhaps the letters from your client saying so will suffice. Could you direct me to the relevant documents Miss X?'

Again, planning paid off. I consulted my list and gave him the exhibit numbers and he looked at the letters, then said obviously no money was owed. Round one to me.

Edited February 15, 2014 by citizenB
paragraphs

[reallymadwoman]

The judge then explained to me the process he was following. He said that he first needed to establish the facts which my case rested on. As I was saying that the defendant had put information on my credit file that was not true, he first needed to establish if that information was false, which he had done, then needed to establish that it had been put on my credit files.

 

I again directed him to the relevant document, which I had helpfully highlighted for him so he was able to find the entries really easily. The judge read the entries quite carefully, then asked for some information about how I got the report so I gave him a very brief explanation of how the online credit report things work, directed him to the date of the report, and said the entries hadn't been on the previous report which I'd checked, after the defendant had written saying I didn't owe them anything. The judge asked if I had a copy of that report and I said that I hadn't printed it and there was no way to access it at a later date when I realised that it would be useful.

 

The judge then started on the solicitor again, by asking exactly what date the entries had been made to my report. All the solicitor could do was direct the judge to his client's witness statement, which said that the entries 'would have been' made when the accounts were assigned - about 6 months before they actually did it. The following conversation went something like

 

Judge 'But what was the exact date?'

Solicitor 'I have no instructions on that, Sir.'

 

Judge 'Don't you think it might have been wise to seek instructions? It is rather important information.'

Solicitor 'Sir, surely it is for the claimant to prove when the entries were made.'

 

Judge (getting visibly annoyed) 'How can Ms X prove something that can only be known to your client? And are you asking Ms X to again prove a negative? It seems quite reasonable to me to not print a report which shows nothing. Can you telephone your client for instructions?'

Solicitor 'Yes, sir.'

 

Judge 'Is there anything else that we are likely to need instructions on Ms X? Anything in the witness statement as the witness isn't available to ask?'

 

Me 'Yes sir. Could Mr X please ask how the defendant obtained my permission to undertake the six searches of my credit file that they've done recently?'

 

Judge 'Please ask, Mr X. We'll adjourn for ten minutes.'

Edited February 15, 2014 by citizenB
paragraphs

[sillygirl1]

Nice one, isn't it fun having these 'highly qualified highly trained' solicitors taken down a peg or two in court..

 

I'm reading this thread with interest as I forsee a couple of battles next year, folders already in progress with index list at front listing secquence of events and letters received and sent.

 

Funny how they like to pull holes in a defence, and make out that you have been writing to the 'wrong address'. Surely they should have a 'duty of care' to ensure their correspondence to you is correct and shows the legal address in all cases.

[reallymadwoman]

The solicitor disappeared in to the corridor with his phone and my daughter and I sat in the waiting room again. I commented to my daughter at that point that the judge seemed to be actually putting my case for me, though I'd previously heard plenty of cases where the judge appeared to dislike litigants in person intensely.

The solicitor returned quite quickly, but was obviously waiting for his client to ring back, which they did relatively quickly. From the bit of the conversation we overheard (actually, most of it as even when he went in to a private room and shut the door, we could still hear it) it was very clear that the defendant didn't have a clue when the information went on to my credit file, let alone any evidence to prove it. I was starting to feel rather confident.

[reallymadwoman]

Return to the Judge's room.

Judge 'Mr X, do you have a date for me?'

Solicitor 'Sir, the way the system works is that data is not processed individually, but in batches ...'

Judge (interrupting) 'Do you have a date, because if you don't I will have no choice but to find that Ms X's version is the correct one.'

Solicitor 'No, Sir.'

Judge 'So the information was entered on to Ms X's file sometime between (dates I had given)'

Judge 'I've now had a chance to read through some of the paperwork supplied, (to me) not all of it of course, but I have read your witness statement. We've established that the defendant did place false statements on to your credit file after the date they knew them to be untrue, so now we have to prove negligence. To do this, we have to establish a duty of care by the defendant to you. Mr X, do you accept that your client has a duty of care?'

Solicitor 'yes, Sir'

Judge 'So, having established that there is a duty of care, was that duty breached? Are you going to dispute that your client entered the information knowing that it was inaccurate, bearing in mind the facts already found?'

Solicitor 'No, sir.'

Judge 'So negligence is established and we just need to consider damages.'

The judge and the solicitor then had a technical discussion about 'causation' which I couldn't really follow, though I was still trying to take in the fact that I seemed to have already proved my case and it was just a matter of how much.

[reallymadwoman]

Judge 'Which bits of the claim is your client intending to dispute, Mr X?'

Solicitor 'Sir, my client would dispute that any damage has in fact been caused. Could I direct you to the document attached to my client's witness statement, from which you will note that Ms X already has two defaults on her credit reference file. As such, the two added by my clients couldn't possibly have done any further harm.'

Judge 'Ms X?'

Me 'Sir, can I just direct you to exhibits XXX (printouts from Equifax website explaining how defaults affect lending decisions). You will see that it seems to be the case that it is the total number of defaults and searches which lenders take most into account rather than the details of an individaul default. As such, four defaults must cause far more damage than just two.'

Solicitor 'Sir, there is no evidence to support ...'

Judge 'Of course four defaults do more harm than two, it's common sense. Anyway, Ms X is not actually claiming for injury to her credit rating, just a very modest claim for the costs of actually getting these false statements removed, so your argument is irrelevant anyway. Are you disputing any item of special damage?'

Solicitor 'Sir, my client will allege that it was not necessary for Ms X to join 'CreditExpert' and that she chose to do so, therefore this item is ...'

Judge 'Ms X, what date did you join this service'

Me 'date, about three days after the defendant warned me they would be processing my data'

Judge 'I find the claimant's actions to be reasonable. Anything else, Mr X?'

Solicitor 'Sir, the claim for time spent ...'

Judge 'Yes, I'm afraid Ms X that item is not able to be allowed, though I appreciate that you have had to spend an inordinate amount of time dealing with this. It would fall to be dealt with as costs, however as this is small claims, I'm afraid I can't allow it. Anything else, Mr X?'

Solicitor 'Sir, the claim for postage and stationary ...'

Judge 'I'm allowing it.'