Taking Experian to Court

[mayja]

If that's the case then sue one or the other, why both?

 

My concern isn't the size of the CRA or DCA in question, merely I fail to understand what is to be gained by suing both and it's a question nobody seems to have answered yet. If the result is the same either way then where is the sense in complicating the issue?

 

Besides, in the case of the CRA's, this information constitutes their core business and they are likely to throw a lot more muscle into it than a DCA.

 

However, the point still stands that, with the greatest respect, I don't think Mayja fully understands the intricacies of her initial compliant and his/her assertions in their current form would be torn apart in court.

 

 

 

 

Thanks for all your opinions. If I fully understood the exact legalities of my argument I would not have posted it here, I would just get on with it. You all seem to miss the point that for years the CRA's argument and statement has been consent is needed. This is echoed in the guidence notes from the Data Protection Registrar and the lenders. I know some of you think this is out of date but my point is the "industry practice" has been this is the most important of the princilples in the Data Protection Act. Why has the argument changed? Because it is a get out of jail free card for the CRA's. The Data Protection Act must have principles that take presedence over the others in order to protect the Data subject. Furthermore, the quality, accuracy and the retention of the orginal agreement is fundemental. If the contract cannot be proved and the T&C of that contract are unclear then the CRA's cannot proccess that data. Some sections of the Data Protection Act must be more important than the others.

 

Thoughts and Healthy debate please!!

[angry cat]

In 1980 Gus launched an information service called CCN. Experian is a subsidiary of GUS, as is Argos etc

 

Equifax was formerly known as Wescot Data. Equifax Europe was formed in 1990 as Wescot Data; a joint venture with the retail Group Next.

 

These companies were formed by Mail Order Catalogues for information purposes. They are not Government Departments and I believe that these CRA's should be chellenged! What right do they have to collect and process our data.

http://www.informationtribunal.gov.uk/our_decisions/documents/equifax.pdf

 

However, I do accept your point that correct specialist legal advise would be required, if one was to challenge them.

JMHO

AC

[dayglo]

my comments in RED

 

 

Thanks for all your opinions. If I fully understood the exact legalities of my argument I would not have posted it here, I would just get on with it. You all seem to miss the point that for years the CRA's argument and statement has been consent is needed. Please read both the Data Protection Act AND the Consumer Credit Act. It is under the CCA that 'consent' is required. The Information Commissioners Office have recently stated, in a response to my test case, (incidentally that is also quoted in the letter from Experian to you) that as consent is not given freely, it cannot be said to have been given under the Data Protection Act. However, as Mr. Fishybob correctly states - the Information Commissioners Office argue that section 6 applies - a legitimate use. I am currently part way through an appeals process with the Information Commissioners Office arguing that they have failed to apply the sceond part of section 6 - 'unwarranted use against legitimate, rights, freedoms and interests of the data subject' - if you read the 'Dayglo's mission to get his life back' all the detail is in there.

 

This is echoed in the guidence notes from the Data Protection Registrar THERE IS NO DATA REGISTRAR ANYMORE!!! The role was taken on by the Information Commissioners Office and they only consider the application of the DPA not the CCA and the lenders. I know some of you think this is out of date but my point is the "industry practice" has been this is the most important of the princilples in the Data Protection Act. Why has the argument changed? Because it is a get out of jail free card for the CRA's. The Data Protection Act must have principles all 5 principles carry equal weight that take presedence over the others in order to protect the Data subject. Furthermore, the quality, accuracy and the retention of the orginal agreement is fundemental. If the contract cannot be proved and the T&C of that contract are unclear what do you mean unclear? then the CRA's cannot proccess that data back to the main point - the Information Commissioners Office say that they can, so they do.. Some sections of the Data Protection Act must be more important than the others. why? on what basis do make this point?

 

Thoughts and Healthy debate please!!

 

Mayja - in one of your earlier posts in this thread, you said that you had begun court proceedings against the DCA in question.

1) What is it that you have actually done?

2) what did you use as your Particulars of Claim?

3) Did you include 'damges'

4) What was your court fee, £150 or something different?

[dayglo]

I believe that these CRA's should be chellenged! What right do they have to collect and process our data.

 

I think you know the answer to that question AC - you give them permission to process your data via the terms and conditions regarding 'information' contained in your credit agreeements post 2001 (in tha main)

 

There are 2 more subtle questions.

 

1) What gives them the rights to 'secondary processing' - the answer, currently under challenge, is the "ICO agree that a 'legitimate use' exists"

 

2) If the contract ends, does permission end? - they answer with the same point as above "ICO agree a legitimate use exists"

[angry cat]

Okay, Dayglo!

However, in my case regarding EGG, I withdrew my consent!

 

"you have given your consent to the processing [although consent may be withdrawn]"

However, Egg has continued to process as has Experian & Equifax!???

 

I also am aware, that there is no longer a Data Registrar, this was taken over by the ICO., who appears to have no teeth. I included the above link to show the origins of the two CRA's. For everyones information, after all it is always good to know ones enemy.

 

I wish mayja Good Luck and I admire you for questioning the issue.

Love AC

[Tobes]

If that's the case then sue one or the other, why both?

 

My concern isn't the size of the CRA or DCA in question, merely I fail to understand what is to be gained by suing both and it's a question nobody seems to have answered yet. If the result is the same either way then where is the sense in complicating the issue?

 

Besides, in the case of the CRA's, this information constitutes their core business and they are likely to throw a lot more muscle into it than a DCA.

 

However, the point still stands that, with the greatest respect, I don't think Mayja fully understands the intricacies of her initial compliant and his/her assertions in their current form would be torn apart in court.

 

Because if you win they are then both subject to any order given by the judge, so there is no wriggle room and absolutely no mistake about their responsibilities, and so you don't have to then try and later on prove to the CRAs that you've won blah blah blah...You don't HAVE to, but I can't see why it seems such a strange idea to some people. Furthermore I don't see why it hsould be more complicated; I'll say again that the argument is the same and so there's nothing extra that you have to do.

 

As to whether they'd fight it with a lot more effort, they didn't exactly put up much of a fight when surly took them all to court for matters relating to their core business...

[mayja]

my comments in RED

 

 

 

 

Mayja - in one of your earlier posts in this thread, you said that you had begun court proceedings against the DCA in question.

1) What is it that you have actually done?

2) what did you use as your Particulars of Claim?

3) Did you include 'damges'

4) What was your court fee, £150 or something different?

 

 

Here you Dayglo

 

Details of claim below

 

LONDON SCOTTISH BANK PUBLIC LIMITED COMPANY

LONDON SCOTTISH HOUSE

MOUNT STREET

MANCHESTER

M2 3LS

The claimant made a request under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1). The defendant refuses to supply the documents requested committing an offence. Furthermore, the claimant served a statutory notice under the Data Protection Act; again the defendant refuses to acknowledge the notice and is in breached of the claimant’s rights under the Act.

Personal Information has been provided to third parties by the defendant, who is unable to establish any contractual or legal right to provide this personal information to third parties.

The defendant is in breach of The Data Protection Act 1998 and The Consumer Credit Act 1974 (Amended)

The Claimant is seeking damages for the breaches as per the remit of The Data Protection Act. The Claimant is also seeking the destruction of the data the Defendant has provided to all third parties.

 

Case No. 6QZ66380

Claim fee £80.00

Damages £1,000

[mayja]

My points are in black:

Please read both the Data Protection Act AND the Consumer Credit Act. It is under the CCA that 'consent' is required. Your telling me the Data Protection Act doesn't state consent is required:o The Information Commissioners Office have recently stated, in a response to my test case, (incidentally that is also quoted in the letter from Experian to you) that as consent is not given freely, it cannot be said to have been given under the Data Protection Act. Prove it Prove it Prove it!!!!!!!!!!!!!! Prove I signed the contract. Oh you can't it doesnt exist.Show me a statement, something, anything? Nope can't I don't have anything. THIS IS WHAT LSB ARE TELLING ME!!! DO YOU SEE MY POINT. This is about contract law Dayglo. I want to sue Experian because the information they hold affects my life in a serious way. They are duty bound to make damn sure those records are factual and are legally binding. OTHERWISE THEY OPEN THEMSELVES UP FOR COMPENSATION CLAIMS. THIS WAS ALSO THE VEIW OF THE DATA PROTECTION REGISTRAR. THE INDUSTRY ACCEPTED THIS LONG BEFORE THE ICO WAS FORMED. Please don't respond with the ICO are now etc etc. My point is the industry and the former regulator ahd the view, so do I. Mr. Fishybob correctly states - the Information Commissioners Office argue that section 6 applies - a legitimate use. Why is this more important? I am currently part way through an appeals process with the Information Commissioners Office good luck with that we all know what the outcome will be! arguing that they have failed to apply the sceond part of section 6 - 'unwarranted use against legitimate, rights, freedoms and interests of the data subject' - if you read the 'Dayglo's mission to get his life back' all the detail

I have read your thread and your method is great and works but I'm trying to achieve more.

[angry cat]

Hmmm mayja!!

 

I dont blame you and...I may well follow in your footsteps.

 

As I am applicable for Legal Aid, it would be interesting to obtain counsels opinion.

 

The whole issue of these CRA's 'Riding Coach & Six Horses' over consumers data, especially when it is Unwarranted & Unjustified processing, requires challenging.

 

AC

[SurlyBonds]

I'm finding it very interesting that there is a chance Experian is breaking the law regarding the passing on of personal data.

 

Points to bring to your attention:

 

When you open a credit account, within your Terms and Conditions, somewhere there will be a 'disclosure of information to third parties' bit, which you will have had to agree to and sign.

 

When you apply for credit, you agree to a credit check.

 

Yes, for the duration of the civil contract... and only for that contract, unless the contract gives specific and quite unambiguous terms that the data will be processed after the cessation of the contract. In my experiance, and reading many contracts, there are no such clauses.

 

Finished contract = No contract = in contractual law.

 

Also, Experian have now written to me conceding this very simple legal argument.

 

Clause concerning credit checks are only for the puposes of ONE credit check to determine the suitability to offer credit, nothing more.

 

The banks, suppliers and CRAs are p**sing all over people's DPA rights, and they jolly well know it.

[SurlyBonds]

I am taking the DCA to court. London Scottish Bank/Robinson. Claim issued on the 20th September.

 

My case against Experian is about the quality of data they hold. I believe you can make a claim against 2 parties on one claim. I am thinking of making Experian a 2nd defendant.

 

We'll see how Experian respond to my claim.

 

Be careful about taking banks and CRAs to court for damages - they are hard to prove, may require professional witnesses, and will, at least, mean that you have to include a VERY detailed schedule as to how you computed those damages.

 

I would suggest getting the default removed first, and then considering if the rest is actually worth it. After, all, then you will have a cleaner record.

[angeljen]

Finished contract = No contract = in contractual law.

 

I understand now

 

Still finding it really interesting, the idea of taking CRAs to court. Interesting, but risky. Personally, I think you need to be complaining to the Information Commisioner guy, then your MP or whoever can tell the Info Comm guy to get his finger out of his backside and check-up of the CRAs... THEN court (and make it a really good court with loads of press attention).

 

I really think a lot more research needs to be done and a lot more avenues need to be explored, in getting the CRAs to do their jobs properly before running straight into the court room, going "Miss, Miss, Craig said that I smell and my mum dresses me funny!" (no offence meant, Mayja, but I think you may be jumping the gun. The judge will need to see that you have tried to settle this out of court and have tried every other option but court). Basically, you need to tell Craig to get his facts straight, if he doesn't, you need to tell Craig's Mum to tell Craig to get his facts straight, and if she doesn't, you've got to tell Craig's Dad or Craig's Granny to tell Craig's Mum to tell Craig to get his facts straight, etc.

 

Now, this has been really interesting, but it's 4.30am and I've been reading up on this since I got home from work at 11.30pm and my brain is about to melt. I'll be checking back soon and hope things go well for you whatever you decide to do Mayja.

[jimfishybob]

[/color]Mr. Fishybob correctly states - the Information Commissioners Office argue that section 6 applies - a legitimate use. Why is this more important?

 

It isn't more important, it's equally important.

 

But the point is, you are arguing the case based on whether you gave your consent or not. This is irrelevant as the Information Commissioners Office have conceded that consent cannot be freely given, consequently, this is not the front on which the battle will be fought. Hypothetically:-

 

YOU: Mr. Judge, Experian haven't got my consent to process my data.

 

EXPERIAN:- You're right, we haven't.

 

YOU:- Erm...oh.

 

Your telling me the Data Protection Act doesn't state consent is required

 

That's right, according to the DPA consent isn't REQUIRED, it is only one of six requirements and by fulfilling one of the others, the need for consent is eliminated.

[dayglo]

this all comes down to schedule 2 part 6.

 

Is there a legitimate use on behalf of other lenders that supercedes your rights as a data subject?

 

The Information Commissioners Office (and now the CRAs say that there is) we say that there isn't - a judge will now have to make a decision.

[aardvark the lecturer]

LONDON SCOTTISH BANK PUBLIC LIMITED COMPANY

LONDON SCOTTISH HOUSE

MOUNT STREET

MANCHESTER

M2 3LS

 

The claimant made a request under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1). The defendant refuses to supply the documents requested committing an offence. Furthermore, the claimant served a statutory notice under the Data Protection Act; again the defendant refuses to acknowledge the notice and is in breached of the claimant’s rights under the Act.

Personal Information has been provided to third parties by the defendant, who is unable to establish any contractual or legal right to provide this personal information to third parties.

The defendant is in breach of The Data Protection Act 1998 and The Consumer Credit Act 1974 (Amended)

The Claimant is seeking damages for the breaches as per the remit of The Data Protection Act. The Claimant is also seeking the destruction of the data the Defendant has provided to all third parties.

 

From what I have read (albeit on this forum), I gather that the removal of the default is fairly 'clear cut' (I don't mean to downplay the effort & fight by that comment, but I believe the legal argument to do this is more clear), under the CCA 1974 if there is no copy of the original signed notice there can be no default.

 

The CRA's right (or lack of) to process information however I see as an altogether seperate issue, which is being challenged on a very different front and argument. This is the area which the Information Commissioners Office is challenging our interpretation on(or scrabbling around to keep it's position regarding) , to the advantage of the CRA's.

 

I think they are complicated enough arguments and to mix them up seems to take an un-necessary risk.

 

Just my opinion though.

 

I do think that there seems to be a lot of barely concealed frustration and anger in the posts here, which is at times being directed against each other.

 

 

Hey, can't we all just.........get along..........or something?

(although not the DCA's and CRA's and Information Commissioners Office, obviously cause they're the **** of the earth)

[mayja]

Quick Update

 

I received a letter from London Scottish informing me they will update my file accordingly. I believe they will simply report the default as satisfied. This is already the case but this the contents of their recent letter. 7 days left to submit a defence to my claim!! tick tock tick tock!!

 

Will let you know the developments as they unfold.

 

Mayja

[blanchie14c]

Any news Mayja, been following with interest......

 

blanch