Harassment by MBNA

[Viscount Stair]

One thing that seems to work (at least briefly) is to point out to the call centre employee that THEY were committing the criminal offence personally as well as their employers and that the Communications Act offence carries a possible 2 year jail sentence.

 

Before my wife and I adopted that tactic, multiple phone calls were the norm. 6 - one after another - was the record. Now, they just seem to leave the odd message instead and write incriminating letters otherwise.

[Viscount Stair]

ONe small point - under the Communications Act 2003 the maximum prison sentence is 6 months. Feeling is that they would have to threaten violence to actually get a custodial sentence.

Sorry, my memory played tricks on me about the maximum sentence - the script I wrote out for Mrs VS does say 6 months, not 2 years.

 

I agree that it would be most unlikely in practice for an MBNA munchkin even to be prosecuted, let alone imprisoned. However, I don't think it is stooping to MBNA's level simply to be the one reminding them for a change of the worst possible consequences that could possibly apply in a situation.

[Viscount Stair]

No, I agree about getting things right - sorry for letting my memory play tricks on me. I used to be more of a contender than I am now!

[Viscount Stair]

I agree that raising interest rates when aware (or ought to be aware) of financial difficulties is Unfair Relationships territory. OFT guidance (sorry but don't have chapter and verse to hand right now) also indicates that it is potentially in UTCCR territory as well.

 

OFT guidance on Unfair Relationships indicates that breaches of legislation generally fall within the Unfair Relationships test (including ss77-79, UTCCR). I don't think they mention DPA specifically but I don't see why it should be any different in principle.

 

How Unfair Relationships will be applied in practice is - as far as I know - untested yet.

[Viscount Stair]

However, even if the OFT are too supine to take enforcement action in practice, their guidance is potentially quite useful ammunition in muddying the waters a bit.

[Viscount Stair]

Oh yes, Cap1 do spring to mind.

[Viscount Stair]

"Bordering on"? I think permanently moved in with would be more like it.

 

I got one of those postcards too. I kept mine as evidence.

 

It formed part of a long complaint I made to MBNA. Although, in one sense, I might as well have saved my breath for blowing on my porridge, it forms part of the record.

 

I have now had a reply from Ms Powell much of which would be familiar to other Caggers. She confirmed I had indeed been sent a postcard (good, so I didn't imagine it then) and also confirmed that no-one would be visiting (I hadn't supposed they would). She didn't respond to the point I made about postcards being in breach of the DCGs but I don't suppose she thinks they apply to subsidiaries of Maryland corporations.

[Viscount Stair]

Hardly original but here is another piece of ammunition:

 

BBC NEWS | Programmes | Moneybox | Warning over 'bank' phone fraud

[Viscount Stair]

The following may be of interest:

 

09.05.08 - Compensation PFHA 1997

 

It is a reproduction of the text of an article by Michael Salter and Chris Bryden (both barristers in 2 Gray's Inn Square Chambers) that was first published in the New Law Journal on 9th May 2008 (Vol 158, No. 7320 pages 652-653).

 

The authors' conclusion reads as follows:

 

At present the assumption when approaching damages for anxiety and distress for harassment is likely to be that nominal damages only will be awarded. However there is scope for argument that the broader basis of the statutory tort of harassment takes the quantification of damages out of the general rules applicable to personal injury and is more correctly identified with Vento-type bands of awards for injury to feelings in discrimination cases. Whilst at present there is no authority directly on this point it is hoped that a suitable case allowing for a challenge along these lines will soon present itself.

 

The case referred to in that conclusion (Chief Constable of West Yorkshire v Vento [2003] IRLR 102) was a Disability Discrimination Act case in an employment context but provided for three brackets for assessing damages for injury to feelings (separate from other heads of damages). The three brackets were £500-£5,000 for even the most minor cases, £5,000-£15,000 for more serious cases and £15,000-£25,000 for the most serious cases.

 

Although there appears to be very little direct authority on the quantum of PfHA damages, the authors cite the Criminal Injuries Compensation tariff, a Pensions Ombudsman case in which £1,000 was awarded for anxiety, a personal injury case involving anxiety following a car accident in which £3,000 was awarded and the two golden oldie holiday cases: Jarvis v Swan Tours Ltd [1973] QB 233 and Jackson v Horizon Holidays [1975] 1 WLR 1468.

 

Uprating Jarvis for 36 years of inflation produces a figure of £1,138 and uprating Jackson for 34 years of inflation produces a figure of £3,160.

 

Whilst I don't think that the authors had debt collection harassment cases in mind, I would respectfully adopt their reasoning that "... where the harassment is ongoing, the risk of paying financial compensation may have the effect of “focusing the mind” of the harasser and causing him to cease his harassing actions."

 

I also think (for what it is worth - and I would be interested in others' views) that there is a potentially strong argument that PfHA damages against MBNA and their ilk should fall in the £1,000-£3,000 range.

 

Whether that is enough to "focus the mind" is another matter.

Edited January 12, 2009 by Viscount Stair
errant sunglasses again

[Viscount Stair]

I initially advised MBNA back in September 2008 that I would only correspond in writing but the phone calls continue. I have an electronic fax provider so I simply fax them to advise how many calls have been received on that day and reiterate my request not to call me. Falls on deaf ears. Yesterday after receiving seven calls I faxed to advise that I had lost patience with them and that if after 24 hours from receipt of my fax I would report them to British Telecom who provide my line. To my mind and I have yet to investigate this further these calls constitute a nuisance which I am sure is contrary to the Telecommunications Act.

Communications Act 2003 - Section 127

 

Improper use of public electronic communications network

 

(1) A person is guilty of an offence if he—

 

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

 

(b) causes any such message or matter to be so sent.

 

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

© persistently makes use of a public electronic communications network.

 

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

 

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

[Viscount Stair]

Viscount Stair

 

THat could be extremely useful - THanks for bringing it to our attention

 

Are you an MBNA harassee?

Funnily enough, only by post at the moment. After my last complaint, they have promised to take me off the phone list - though not for the first time.

 

Capital One/Debitas are my current phone buddies! (This cobbler's children are very badly shod indeed!)

[Viscount Stair]

United we stand, Divided we fall

In honour of MBNA's American domicile, I think the following is also appropriate:

 

"We must, indeed, all hang together, or most assuredly we shall all hang separately."

 

(Benjamin Franklin, in the Continental Congress just before signing the Declaration of Independence, 1776.)

[Viscount Stair]

I have twice managed by means of formal complaints to Customer Advocate Office to get the phone calls stopped (for a while, the first time and for the time being, this time). The interesting thing is that the first reply contained an interesting freudian slip: I was told that I would not be phoned again during the current "campaign".

 

Doubtless, if it ever becomes an issue, it will be explained away but the OED definition of "campaign" includes the following:

 

"5. a. fig. Applied to any course of action analogous to a military campaign, either in having a distinct period of activity, or in being of the nature of a struggle, or of an organized attempt aiming at a definite result."

 

I think that the use of the word "campaign" is a potentially very damaging admission by MBNA.

 

While we are in Dictionary Corner, I thought that fellow Caggers might enjoy one of the other definitions offered by the OED for the same word:

 

"c. The Plan of Campaign in Ireland, entered upon in the winter of 1886-7, a method of conducting operations against landlords who refused to lower rents, according to which the tenants in a body were to pay what they considered the fair rent into the hands of a political leader, charged to retain it until the landlord should accept the sum offered, less any amount subsequently expended in maintaining the struggle."

[Viscount Stair]

I do not claim any originality for this (it was first posted by foolishgirl in the Utilities forum and re-posted by jonchris a few days ago) but it is worth having in this thread for ease of reference.

 

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009)

 

This was a claim for harassment brought against British Gas, which survived a strike out application and appeal and resulted in a "substantial settlement" from BG.

 

The Court of Appeal judgments establish two very useful principles that are very relevant to this thread:

 

1. Although it is necessary to show that the harassment was grave, it is not necessary to prove the claim to the criminal standard.

 

2. There can be corporate liability for harassment, not just liability against individuals.

[Viscount Stair]

As a footnote to the Ferguson case, PT pointed out in another thread that there is a conflicting Court of Appeal decision on the gravity point: Conn v Sunderland, which may has been preferred to Ferguson in one injunction case he dealt with.

[Viscount Stair]

6 April 2007