Hi Guy A and L agreed to remove the adverse markers from my credit file the day before their defence was due to be filed. They duly did so and my credit score is now restored to the maximum. I posted my particulars of claim on another thread but cant remember where! They didnt give a reason as to why they backed down. I did not pursue compensation as my only concern was my credit rating. Good luck Jenny

SUCCESS! A and L have backed down and removed the three late payment markers following the service of my amended particulars of claim. They did this the day before their defence was due. My credit rating is now restored to its former glory. I obtained a lot of help and advice from this site and will be making a donation. Thanks to everyone. Toasty

One of the pillars of the English law of Equity is that every man has the right to a fair hearing. The financial institutions can and do wreck lives by making referals to CRA's without any opportunity for the subject to make representations. They are judge and jury without appeal. We need to campaign to have all disputes put through the court system and take away the right for any information which could affect an individual's ability to obtain credit, to be lodged without a court order. Has this ever been tested in court? Site team?

Count me in. We have nothing to lose but our financial straightjackets.

I agree with both of you. The only thing that changes anything is public opinion. I was told that years ago by a lawyer working for the UN who had special responsibility for Gaza. Nothing has changed and we need to harness public opinion and let the power brokers know we will not be robbed any longer, by taking to the streets. A million people took to the streets in opposition to the Iraq war and although it didnt prevent us going in, notice was taken of the opposition to it and undoubtably contributed to the demand for the enquiry now taking place as to the legality of that decision . We need to organise and make our voices heard. We need to start somewhere. I am not convinced we have sufficient protection in the current legislation to ever get anywhere in the courts. The financial institutions have it sewn up and the watchdogs just pay lip service. Together we have power.

Thanks Buzby, Its kind of what i expected. I will take your advice and get the replacement phone and wait to see what happens when they amend my credit file. Thanks again Toasty

i am not sure I have been clear enough. it was my mother who they originally searched when I took out the contract, but it was me who they entered the three late payments against. My mother has now taken up the matter directly with hutchinson regarding using her credit score without her consent.

Oh , one more thing, yes my mothers rating was affected, not mine. Cheers

Hi Busby The handset was sent in for repair, they said they sent it back but it was returned to them undelivered. They didnt tell me they had got it back nor made any attempt to redeliver. I suspected they would default me so i preempted that by issuing proceedings for breach of contract . They then admitted they had the phone. The case went to mediation and part of the agreement reached was the return of the phone to me. They agreed to waive the charge for the remaining time and offered £100 goodwill gesture. we both signed the mediation agreement but two days later they entered three late payments against my credit record. They now say they have lost the original phone and have offered a replacement. I suspect they do not want me to have the original phone independently examined. I have a good paper trail of complaints and constantly chased them but they never got back to me. The solicitors dealing on behalf of hutchinson are unbeilvably aggressive. I was living with my mother at the time but we are not financially linked as they cannot do that just for sharing an address. They did a search against my mothers credit record and that affected her credit rating. They passed the debt to two DCA's ,who wrote to my mother chasing payment for my debt! They have now offered to take off adverse marks posted after the mediation but insist the debt remains marked as settled. I am minded to reinstate my case and put all this in front of a judge. Any advice? Thank you very much toasty

Hi Buzby, I have read with interest your advice on mobile phone contracts. Are hutchinson 3g liable within the terms of the contract for a faulty phone that keeps going wrong. i have made many complaints during the contract, sent the phone back for repair, they didnt send the phone back to me so i eventually cancelled my direct debit. They also used my mothers credit rating to enter into the contract without her knowledge or permission. Can they pursue me for the balance of the contract - 3 months. £109. many thanks toasted

Hi Steve, I do not know how to PM, but happy to learn! Have you got adverse marks on your credit file in relation to this? I am not sure what grounds you would have to issue proceedings if the debt of £500 is accepted by you. They are very unlikely to do any kind of deal to take off any default or late payment marks unless they have defaulted you without following procedures. What did you have in mind? jenny

Yes, the whole 'Debt" is bank charges. but they have written them off so i am not trying to claim anything back. I have issued proceedings primarily to have the default removed from my credit record, but also damages under the DPA . The crux is that I didn't receive notice of them closing my account or defaulting me. wouldnt they have to keep copies of these important letters?

Hi Yourbank, I dont quite understand your reply, are you saying the report records the individual member of staff who allegedly sent the letters? Will I have to call the staff member so I can cross examine them ? Cheers Toasty

Hi Trimmo, I issued proceedings under Part 8, which i think was the way to go but A and L objected and it is now proceeding under part 7 which is just a straight forward claim but gives them the right to put in a defence. I have amended my statement of claim, they said I had not particularised it properly, which is what they always say and am waiting for their defence. I had a rather weak judge who just went along with what they asked because they were legally represented and I wasnt. I have posted my particulars on another thread on the A and L forum which you can look at. The case wont get allocated to a track until the allocation stage, but should proceed under small claims. Hope this helps cheers Jenny

Hi Guy, I would be very interested in hearing from you regarding the fact that A and L gave you no notice of closing your acount. Are they claiming that they did? They have done the same to me, and I wonder whether we could help each other. We could give evidence in each others cases. Let me know what you think. cheers Jenny

Yes, i Know, yourbank I couldnt work out how to take them off! Any advice on what it all means! Will the court take that as evidence the letters were sent? This seems to be crucial in assessing my chances of success. Cheers Toasty

Thank you Fox, I am attaching the actual notes sent, which do include blank template letters listed that they say they sent. The ones I did not receive are all those after 20th October 2008. They cannot provide copies of the actual letters, just the blank templates. How will the court view their evidence?sar report_0001.pdf Many thanks Toasted

Hi Silverfox, You make mention of screenshots in your reply above, can you tell me what this is? I have my sar report from A an L, they are claiming they sent me letters i didnt receive. Thanks Toasted

:)you are very welcome Loz, I will post the defence when i get it. I am expecting them to say they did send me the notices. They havent been able to send me any copies so it will probably be down to who the judge believes. Good luck with yours. toasty

Hi Loz, I am attaching my amended Statement of case, you will see that I am only seeking the removal of a default although I have claimed damages that is of secondary importance to me. Please feel free to copy any bits that might be useful. I have no specific expertise in civil litigation so please have someone look at your pleadings. Good Luck Amended Particulars of Claim 1.The Claimant had a Premier Direct current account number xxxxxxx ("the Account") with the Defendant which was opened on or around 1st November 2006 and closed on or around 12th February 2009 2. 1. The account was conducted on the basis of the Defendant’s own standard terms and conditions. 2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 3. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant. 4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to exceeded overdrafts 5. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made. 6. A list of the charges applied is attached to these particulars of claim. 3. The Claimant contends that: Insofar as they may be unfair, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant. Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the Defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999. 4. The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because a. They are contrary to the requirement of good faith. b. They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:- * Bank accounts have become a basic essential service * The Defendant is a wholly dominant partner in a non-negotiable standard-form contract. * There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts. * These banks exercise a collective dominance in the market. * The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges. * The charges exceed actual costs by several thousand percent. The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of i) the The Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e) and ii); the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and iii) the common law relating to liquidated damages and penalties in contracts. * They are applied unilaterally in a standard form contract without the possibility of negotiation. * The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers * The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract. * The customer had no means of assessing the fairness of the Charges at the time of entering the contract * The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%. * The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking". * The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges * The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position. * The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.· As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges. 5. In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8. 6.The provision of an agreed overdraft facility of £900 created a regulated agreement under the Consumer Credit Act 1974 as amended by the 2006 Act. Insofar as it was a multiple agreement under Section18 the part providing the overdraft facility was a regulated agreement. The Defendant is in breach of conditions (b) (i - iii) of the OFT's determination for an exemption under section 174 in that: Section 174 of the Act provides that the OFT may exempt agreements allowing debtors to overdraw on a debtor-creditor current account, from having to comply with some provisions of the Act (sections 55 and 57-73). the OFT can only do this where it is not against the public interest and the creditor can be made subject to conditions to ensure this. At the present point in time, banks providing debtor-creditor overdrafts are exempt from these sections of the Act subject to the following conditions: (a) that the creditor shall have informed the OFT in writing of his general intention to enter into agreements to which the Determination will apply; (b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded: (i) of the credit limit, if any, (ii) of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended, (iii) of the procedure for terminating the agreement; and this information shall be confirmed in writing. Additionally,the Defendant has failed to serve a default notice under section 87 of the Consumer Credit Act. 7. The Defendants are in breach of the Data Protection Act in that ; A Data Subject Access request was served on the Defendant on the 7th July 2009. The Defendants provided copy bank statements on the 23rd July. A further letter was sent to the Defendant requesting the remainder of the information on the 29th July. A list of information held by the Defendant was provided on the 3rd November 2009 with no supporting documentation. The Defendant took 4 months to partially comply with the subject access request in breach of the Data Protection Act which states that information must be provided within 40 days. 8. The late provision of this information has caused the Claimant significant delay in preparing this document resulting in an application having to be made to the court to amend the timetable and delay in bringing these issues before the court . 9. Despite the Claimant's original and further requests, the Defendant has failed to provide true copies of any correspondence alleged to have been sent to the Claimant after the 20th October 2008. During telephone calls made to the Defendant in June 2009 it is averred that it was clear from the conversation that the Claimant had no prior knowledge of the intention to or of the closure of the account. 10. The Defendant closed the account in February 2009 without informing the Claimant of either their intention to close the account or of their intention to make a reference to a credit reference agency, in breach of Section 13.7 of the Banking Code which states “In these cases we will give you at least 28 days notice that we plan to give information about the debts you owe to Credit Reference agencies. At the same time we will explain the role of Credit reference agencies and the effect of the information they provide can have on your ability to get credit.” The Defendant is also in breach of paragraph 32.4.8 of their own terms and conditions which states that 30 days notice will be given of closing the account for any reason. Additionally,the Information commissioners guidance states as follows; Notices of intention to file a default 32 Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all. 33 Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing. 34 When a default occurs in line with the criteria in this guidance, and the lender has given the customer 28 days notice of the intention to file a default, then subject to paragraph 37, the lender may supply this information to a credit reference agency despite no advance warning when the account was opened. Accuracy of a lender’s default records 39 Records Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. 43 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. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer. 11. In June 2009 the Claimant applied for funds to be released under a mortgage arrangement with Barclays Bank. Upon obtaining her credit report she discovered that adverse information in the form of late payment markers had been passed to the credit reference agencies by the Defendant. 12. The Claimant was unable to obtain the previously agreed mortgage causing embarrassment and great financial difficulty for the Claimant forcing her to borrow £19,000 from friends and family to continue with a partially completed building project. She has had to sell a property quickly at a reduced price to obtain funds to repay the debts. 13. The Claimant contacted the Defendant in June 09 as soon as she became aware of the situation however the Defendant refused her offer to pay the amount alleged to be outstanding at the time they closed the account. 14. Any purported permission to share the Claimant's information with third parties was revoked at the point the account was closed and the contract terminated. 15. The Defendants passed information to the credit reference agencies in March 2009 which is in breach of Principles 3, 4 and 5 of the Data Protection Act which states Principle 3 Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed .' The Data provided to the credit reference agencies by the Defendant was not about the closure of the account. as claimed by the Defendant. It was recorded as a series of late payment markers relating entirely to bank charges charged to the account by the Defendant. Principle 4 “Personal Data shall be accurate and where necessary kept up to date” The data currently processed on a daily basis is not up to date being dated March 09. No figures or amounts are recorded. Principle 5 "Personal data processed for any purpose shall not be kept for longer than is necessary for that purpose or purposes'. The Defendant is still processing data after the termination of the contract, whether or this is a simple renewal process of the information daily or by some other timing factor. As the contract is no longer in situ, any permission has also ceased from the date of termination. The report states that the information will be kept on the Claimants file for six years. The Claimant asserts that this is excessive and disproportionate to the amounts involved 16. The Claimant also relies on principle 2 of the Data Protection Act which states 'Personal data shall be obtained only for one or more specified and lawful purpose and shall not be further processed in any manner incompatible with that purpose or those purposes' The Claimant asserts that the term 'specified and lawful purposes' means those within the contract and no more. 17. Additionally, the Defendant is in breach of the Banking code to which the Defendant and which is incorporated into the contract. Section 13.6 of the Banking Code which is incorporated into the contract states “ We may give information to Credit reference agencies about the personal debts you owe us if: 
 1. you have fallen behind with your payments 2. the amount owed is not in dispute 3. you have not made proposals we are satisfied with for repaying your debt, following our formal demand 18.All unauthorised overdrafts which comprise wholly or mainly of bank charges are deemed to be in dispute since the issue in 2007 of the OFT test case. The late payment markers on the account refer to an unauthorised overdraft which comprised only bank charges. These charges are deemed to be in dispute and referral to a credit reference agency is a breach of the Banking Code. 19. Additionally, in the light of the High Court decision of the 24th April 2008 which found against the banks, it is now almost a certainty that this decision will be confirmed and that it will be made clear that the banks level of charges are unfair and therefore unlawful. 20. Insofar as any debts which the Claimant may owe to the bank are comprised of bank charges, these debts are invalid. Any information which the bank has recorded against the Claimant which suggests that she owes them this money is untrue and is therefore held by the Defendant unlawfully. It follows also that any passing of this information to any third party is also an unlawful act as is the holding of that untrue information by those third parties. 21. The Claimant seeks an order of the Court that all information relating to the disputed sum be removed immediately. Furthermore , by virtue of the Defendant's breach of contract, breach of the Data Protection Act and breach of the Banking Code the Claimant has suffered loss and distress. Particulars of loss The Claimant has had to borrow £19000 from friends and family. The Claimant has been unable to repay expensive credit cards in full, causing her to incur interest The Claimant has had to sell a property at below market value to obtain funds due to the Defendant's Actions. Particulars of distress The Claimant had hitherto the Defendants actions an impeccable credit history. The Claimant has suffered damage to her financial reputation. The Claimant has been unable to obtain credit to continue with her renovation works to her home causing all works to stop and leaving her with no kitchen or bathroom facilities The Claimant has had to cease the employment of tradesmen booked to carry out work causing considerable embarrassment and financial loss to the claimant. The Claimant further seeks damages under the Data Protection Act for distress in the discretion of the court pursuant to Section 13 of the Data Protection Act 1998 Plus Costs Statement of truth The Claimant believes that the facts stated in these particulars of claim are true. Signed...................................... Dated.......................................

Hi Landy, I also need the info about 'penalties ' or 'unfair' in the draft directions to be submitted with the AQ . Can you direct me to your other thread please ? many thanks Toasted.

Hi Loz, No I dont mind at all, not sure how to post it on here tho... Any advice on that? cheers Toasted

Hi All, I just got statements too, I sent a follow up letter, issued court proceedings and I got a list (no documents) of my data this week, 4 months after my original request. Its clear that A and L do not take the time limits seriously and no one makes them. Now they have lied by saying they had sent me default letters and notices but they didnt and cant provide any evidence. Do they have to keep true copies of all letters and notices they send out, for 6 years? So If they cant provide a copy of something they said they sent the court will disregard it? thanks for any advice Toasted

Thanks Bankfodder, I am confused as it says on the website that all bank charges are deemed to be in dispute following the test case! I just wondered where that view came from. Thanks for your help - toasted

I have issued proceedings against Alliance and Leicester and I am about to amend my particulars of Claim which have to be filed and served by next Tuesday. A and L does not accept that bank charges incurred after the test case was issued in 2007 are deemed to be in dispute. I need to know what authority if any, has established this point, to include in my pleadings. Any help from the site team would be most appreciated Cheers Toasted