Developments

[SurlyBonds]

Firstly, yesterday went well.. (not as in brilliant) but certainly a few steps forward. But this is, I think, going to be a case of constant pressure like Chinese water torture!

 

The under-secretarial-something-title-assistant-person we met was your typical Civvie (didn't really know enough about the legal semantics to offer any "considered opinion"), but did make copious notes and made some suggestions as I went along as to how he could refer the matters and what actions that I could take via my MP.

 

Overall, I think he was a little embarrassed that the Data Protection Act didn't actually specify a time constraint, and this was obviously overlooked when the Bill was drafted. However, he did concur that whatever the Information Commissioners Office comes out with as advice can still be tested in Court and is not taken into the legal argument - it is their interpretation only.

 

I don't want to go too much into what the future strategies are, as one may involve a very neat ambush, and I am not going to reveal it here as we all know who watches this site and learns from our intended plans. Surprise is going to be an important factor in this one. I also need a lot more time to plan this particular method out, and think about ensuring covering off ALL angles as it is quite complex.

 

Riley and I also need to do some serious work on looking at some case precedents to see if other previous contractual cases have thrown up anything we can use for ammo in this context, as there is nothing in relation to CRA cases to date. We therefore need to look at other aspects of contract cases and co-relate the relevancy of those judgements. We have started digging...

 

As to the I.C.O. (and dayglo's recent developments) I now have had exactly the same response email from the same woman (no, I won't mention names... just in case the pink monkeys start looking for a stick!!)

 

Needless to say, I think the email is just about the biggest load of tosh I've read from a regulator in a very long time. Lily-livered, spineless drivel doesn't even begin....

 

As stated in one of my earlier posts, most regulators seem to focus too heavily on their specific Act and don't have the knowledge or remit to incorporate the dependant and connected Laws - in this case, the terms of the contract.

 

It is highly blu**y amusing to see the so-called DPA Police (I.C.O.) uphold the very argument that a CRA has just conceded...but there again, I think we all won our bets in relation to 'Dayglo the Bookie's' previous odds-on post.

 

In my mind... someone is seriously in someone else's back pocket if this is the so-called support that the I.C.O. gives the public.

 

The email does not contain an ounce of logic in the argument, especially the statement about obtaining permission - she has not understood the logic of the argument, which is quite simple:

Permission is sought to conduct the initial check and run the contract only, unless the contract says anything else - end of story.

 

However, speaking to the email writer and investigator today, she has admitted that she only referred it to the policy ops people, NOT the legal department. However, after ringing her round in circles for about 20 minutes her brain finally melted and she gave up, with the usual I-can't-even-understand-your-logic-as-my-brain-is-bleeding response of "I don't think we're going to agree here and we seem to keep coming back to the same point".

 

(and then she got taken away.... ) .......allegedly [smirk]

 

"Back to the same point" huh??? OH YES, DAMN RIGHT WE ARE LADY!!!... The simple logical "same point" that you can't get through your brain in that contractual Law formed the basis of the agreement between the two parties...nothing else!! The DPA and CCA are then used to regulate that agreement.... it ain't the other way around. Duh!

 

But, as I said - typical lower-end-of-foodchain CS...there, there, never mind. [oooh....bi*ching.... watch those pinkie hackles rise!!! ]

 

So, I have now requested a formal complaint procedure pack to instigate a complaint about the way the matter was handled especially in light of her not referring the matter to someone legally qualified who understands contract Law, let alone the Law of Tort now that a contract has been breached... you might now get a hint at where I'm coming from for some 'new angles' ;-)

 

So, no move forward with the I.C.O. who have simply shown:

a) they don't understand contract Law, let alone apply it in respect of the DPA and how permissions were obtained

b) they have managed to uphold the very argument that Experian have conceded in their letter to me

c) how they have not come up with a single point of reference for "six years" other than refer to the very "industry standard" timeframe that we are claiming isn't legally constitued in the first place - other than a committee meeting in 1971 ... some 35 years ago???? and waaaaaaaaaay before any data protection laws were even a twinke in their Daddy's eye.

d) they won't listen to the public and simply give up the conversation when they get tied up in logic, and then pass the buck up the food-chain - which is what they should have done in the first place if they didn't understand the complaint.

e) they haven't got the intelligence to do their job - they should be sent on courses to understand the legal ramifications of how the DPA interfaces with other Laws, etc.

f) what is the 'real' relationship between the I.C.O. and those they Police here... Hmmmmm, back to grassy-knolls and 170 degree rotating bullets, methinks.

and

f) they are totally responsible for the price of cheese, the Middle-East crisis, and the weather.... okay I'm joking on that one!

 

However, she has STILL not come up with ANY legal statute other than her interpretation that

"reasonable time" = "six years", and that's assuming that "reasonable time" can be arbitrarily tacked onto the back of a contract anyway, after it's finished, without you agreeing to such a change in that contract... which is what the supplier is, effectively, doing.

 

strewth!!!!! Trying to work with the I.C.O. =

 

And the best bit of all, is that when these template letters are sent to the actual banks, etc., they remove the default "as a gesture of goodwill"....yeah right.!!!

 

Anyway, back to alter battle plans - patience is a virtue.

[lickthewallfatboy]

I can't wait for the next instalment-this just gets better and better!!!

[Tobes]

So am I right in thinking that because there was a contract initially, allowing everything to happen, now that contract ceases it is implied that all that was allowed is now strictly disallowed as there is no permission...

 

But what about this gumph that they need no permission to use our data because it's for the greater good lol - is the counter that they got the information from the contract so they cannot continue to use that data as it's privileged by the contract?

[Tinkerbelle]

So am I right in thinking that because there was a contract initially, allowing everything to happen, now that contract ceases it is implied that all that was allowed is now strictly disallowed as there is no permission...

 

But what about this gumph that they need no permission to use our data because it's for the greater good lol - is the counter that they got the information from the contract so they cannot continue to use that data as it's privileged by the contract?

 

As well as the nonsense that they have now come up with that once you have been defaulted, any rights you have with regards to that contract involving the "processing" of your data no longer applies. See here

 

So basically if someone rips of an organisation for £250k and gets defaulted, and someone can't afford to pay a £2.00 bill and gets defaulted because they have lost their job, they will both get tarred with the same brush.

 

I'm sorry but that sucks

 

I can't see any judge in the whole universe thinking that would be ok.

[Tobes]

Yeah, I got that too; I wrote back saying that I find it incredible that he believes that one party can have rights and the other none...I want more of the same, basically - lots of juicy stuff to show a judge!

[Tinkerbelle]

Yeah, I got that too; I wrote back saying that I find it incredible that he believes that one party can have rights and the other none...I want more of the same, basically - lots of juicy stuff to show a judge!

 

LOL ..

[SurlyBonds]

As well as the nonsense that they have now come up with that once you have been defaulted, any rights you have with regards to that contract involving the "processing" of your data no longer applies. See here

 

So basically if someone rips of an organisation for £250k and gets defaulted, and someone can't afford to pay a £2.00 bill and gets defaulted because they have lost their job, they will both get tarred with the same brush.

 

I'm sorry but that sucks

 

I can't see any judge in the whole universe thinking that would be ok.

 

Yep, that's basically what the I.C.O. is saying.... 'data for the common good', despite the FACT that the CRAs are not one of the exempted 'common good' agencies listed in the Shedules of the Act - as they are private companies.. someone knows someone who's getting something out of all this....

 

As to the 'proportionality' of the offence:

Magna Carta

Clause 20, "For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Clause 40, "To none will we sell, to none deny or delay, right or justice."

 

Bill of Rights 1689:

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

 

NEITHER OF WHICH HAVE BEEN TAKEN OFF THE STATUTE!

 

P.S. Tink, nice Avatar!;-)

[dayglo]

better and better!!!

I know what you mean but I'm not sure 'better' is the right word! having said that, I can't think what the right would should be!

[Tobes]

I just hate the fact that, as it seems to me, organisations stick together, even if one is meant to reglate the other; it seems that if an individual, a consumer, makes an argument, it is never given proper credence and almost by default arguments will be attempted that try to maintain the status quo..Well, apart from trade unions but I just hate them because they do the exact opposite to pathetic degrees

 

This woman appears to be in no way legally trained, yet she has decided to use the Act to tell us that we're wrong and EVEN to write to Experian to tell them their own letter (Surly's letter) is wrong - would she have done that if requested to by a company, say Experian? Either way I want to know what the HELL the Information Commissioners Office think they're doing using legally untrained people to issue advice - fine, you can have customer services people to hand out leaflets and do the bloody paperwork but it makes the Information Commissioners Office look ridiculous and totally undermines its position. I think I might even write to them to ask them the steps they take to make sure the advice they give has credence and the qualifications necessary to do it.

[pford]

From their own legal guidance

 

3.1.4 Lawfulness

The Act does not provide any guidance on the meaning of “lawful”. The natural meaning of unlawful has been broadly described by the Courts as “something which is contrary to some law or enactment or is done without lawful justification or excuse”. (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether criminal or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

This means that a data controller must comply with all relevant rules of law whether derived from statute or common law, relating to the purpose and ways in which the data controller processes personal data.

There are certain areas of law concerning the use of information and the relations of data controllers with individuals, which have particular relevance where breaches of the first and Second Principles are being considered. These are:-

(a) Confidentiality arising from the relationship of the data controller with the data subject.

(b) The ultra vires rule and the rule relating to the excess of delegated powers, under which the data controller may only act within the limits of its legal powers.

© Legitimate expectation, that is, the expectation of the individual as to how the data controller will use the information relating to him.

(d) Article 8 of the European Convention on Human Rights (the right to respect for private and family life, home and correspondence).

These areas, particularly (b) to (d) above, are especially important in the case of data controllers in the public sector, who, for example, often have extensive statutory powers enabling them to require information from individuals.

There are circumstances where an obligation of confidence arises between a data controller and an individual about whom information is recorded, for example, in relation to medical or banking information. The effect of an obligation of confidence is that a data controller is restricted from using the information for a purpose other than that for which it was provided or disclosing it without the individual’s permission. It would be unlawful for a data controller to do this unless there was some overriding reason in the public interest for this to happen. Where such personal data are processed for a purpose other than that for which the information was provided, the processing is likely to be unlawful processing.

Many public bodies, for example, government and statutory organisations, deal with personal data in order to carry out specific functions. In doing so they must act within the limits of their powers. Such powers may be set out in statute or be defined in a scheme of executive powers. Such bodies should be aware of the extent of their powers, in particular any specific restrictions on the use or disclosure of data. Where personal data are processed outside those powers then the processing may be unlawful.

[SurlyBonds]

 

So basically if someone rips of an organisation for £250k and gets defaulted, and someone can't afford to pay a £2.00 bill and gets defaulted because they have lost their job, they will both get tarred with the same brush.

 

I'm sorry but that sucks

 

I can't see any judge in the whole universe thinking that would be ok.

 

Absolutely, the proportionability of the case is something that all judges need to weigh up.

 

But, we're already thinking about taking this via a judicial review as the lender/CRAs are basically, judge, jury and executioner in this whole credit reference process.

 

1. There's absolutely no proportion to the whole process - it's black and white and that's it - "overprocessing" is the term that Dave came up with.

 

2. The banks often break the Banking Code anyway by not informing customers 28 days beforehand of the proposal to register adverse data - of ANY form (even is and 2s, etc). So, although the Banking code is voluntary, it forms part of the contract as they claim to be signatories to it, therefore it is an implied contrcat and they have to adhere to it a part of the overall contract.

 

3. Any decision is totally one-sided and is not referred to any process (let alone appeal panel/arbitartion, etc.) for a judgement to assess the fairness of any adverse data or look into the circumstances as to how the alledged breach occurred.

 

4. There is no appeal process once the data is registered.

 

5. The CRAs are basically going beyond the terms of the contract and extending the disclosure clauses on their own say so. They are supposed to write to you with any intended changed in Terms and Conditions with an opportunity for you to opt out, or cease the contract. Any clause is therefore not fair under the UTCC Regs.

 

6. The I.C.O. is about as tough with the CRAs as slapping them with limp lettuce or a wet fish... Hey didn't Python do such a sketch.

 

 

Anyway, we will continue this 'battle' until right wins over... no matter how long it takes... geeeeezus, that sounds so sycophantic, or from some film...

 

bad data puppy ------>

 

BTW, hello to all our regular watchers from the Credit Reference Industry... we know how much you enjoy reading these posts....hi....hellooooo..... we can seeeeeee youuuuuuu...

[Guest willowb]

Love the emoticons! how do you get them?

 

errrrrm ever so slightly off topic! Will you have a nice glass of red tonight and celebrate? a smoking jacket and cigar perhaps? ;>)

 

Wxx

[SurlyBonds]

Love the emoticons! how do you get them?

 

errrrrm ever so slightly off topic! Will you have a nice glass of red tonight and celebrate? a smoking jacket and cigar perhaps? ;>)

 

Wxx

 

Probably a bit too early to start opening up the champers....Still LOADS to do... we have to start taking on the advice given yesterday and chasing up the actions that they took away. Hi ho, Hi ho... it's off to work we go.

 

Still, although no celebrations, in my book, a glass a day keeps the stressies away...

 

I did have a smoking jacket once.... leant over the bonfire too far... ;-)

[Guest willowb]

.

 

I also need a lot more time to plan this particular method out, and think about ensuring covering off ALL angles as it is quite complex.

 

.

 

Don't know how you do it SB, a young family, a business and all of this.....you are a driven man! all the better for us:)

 

Take care of yourself dearie.

 

Wx

[Guest willowb]

I did have a smoking jacket once.... leant over the bonfire too far... ;-)

 

haha! groan groan! LOL

 

Wx

[chrismc]

Another gem from SB

BTW, hello to all our regular watchers from the Credit Reference Industry... we know how much you enjoy reading these posts....hi....hellooooo..... we can seeeeeee youuuuuuu...

 

Well Done SB....keep up the good work!!

[hondamad21]

Any update on this Surlybonds???

 

I have been in touch with a Mr. Lee H in the Directors office for Experian.

He is still arguing that "reasonable time" equates to 6 years.

 

Can start a thread with all his replies if anyone is interested. . .

[lellypea]

Hi Honda M ....I'm in touch with Lee Hancock as well.....as helpful as a chocolate teapot!

[hondamad21]

Hi lellypea,

 

I got no where with Mr Hancock. Have given up on CRA's for now and have taken Egg to court.

If I fail to get Egg to remove the default I shall then look to the CRA's again and try to get them to remove it.

 

Best of luck Lellypea, might be more productive banging you head on the keyboard then getting anything out of Lee ;)

 

hondamad

[un1boy]

Hi Honda M ....I'm in touch with Lee Hancock as well.....as helpful as a chocolate teapot!

 

Isn't he just?

 

He just seems to be sending the same mails back to everyone, must be on autopilot!!

[vimal]

Apologies if this has already been posted somewhere on the board. There is an important case being heard on Friday ref: Bank Charges:

 

A high street bank may be forced to justify its penalty charges in court for the first time.

 

No judge has ever ruled on whether charges of £30 or more to bounce a payment are legal as the banks have always paid up to prevent court action.

But a barrister now believes he can force the issue to court and is seeking a key ruling on Friday.

He is demanding the right to claim damages on top of a refund and has rejected an offer to settle the action.

Tom Brennan, who ran up £2,500 in penalties on an unauthorised overdraft when he was a law student, told BBC Radio 4's Money Box what he is asking the court.

"I am arguing for what are called 'exemplary damages'. Where a company acts unlawfully and then takes unlawful profits from a person they should face a substantial level of damages to strip them of those profits," he said.

He shares the view of many consumer groups that the charges levied by banks when people exceed their overdraft limit or a payment is bounced are illegal.

"Consumer protection regulations state clearly that you can't charge a disproportionate level of charges for any breach of contract," he said.

"The information I have from my experts it that it will cost £2.50 or thereabouts to bounce a direct debit. The bank charges me £38."

Consumer action

Major campaigns by consumer groups have led to tens of thousands of people recovering bank charges.

More than two million form letters have been downloaded from one website alone.

In every case the banks eventually pay up - sometimes at the court steps - so the legality of the charges has never been tested.

They've offered me £4,000 but I've rejected it

 

 

Tom Brennan, barrister

 

 

Mr Brennan says his approach will force NatWest to defend its actions in court.

He has refused an offer well in excess of the penalty charges taken by the bank.

"They've offered me £4,000 but I've rejected it because they keep saying the charges are both fair and lawful but I don't agree," he said.

If the court rules against him he could pay a heavy price.

"If I lose and they state that I am acting unreasonably they can ask for their costs," he said.

"They are employing senior barristers. It would bankrupt me, and that prevents you being a practising barrister or transferring to be a solicitor.

"But that will only happen if the judge awards costs and he may not if he decides I am bringing this for public reasons. This case has a momentum of its own and is too important to walk away."

In a statement, NatWest confirmed that the case was being defended but "it would be inappropriate to comment further". The case will be heard on Friday, 13 April in the Mayor's and City of London County Court at Guildhall.

[flam147]

lets hope for a victory:p

[kippy2]

case adjourned to 30th april

[Pliny the Penuriosus]

Subscribing

[smartmartian10]

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