Data Protection-Processing likely to cause damage & distress

[diddled]

Thanks to the BAG we now know that penalty charges are illegal.

Bearing in mind sections 10 and 13 DPA does anyone have any thoughts on the processing and registering of defaults when they are a result of penalty charges.

Could a person whose credit rating has suffered claim compensation under section 13 for damage and distress?

 

 

Section 10 Data Protection Act 1998

If an individual believes that a data controller is processing personal data in a way that causes, or is likely to cause, substantial unwarranted damage or distress to them or to another person, section 10 of the DPA gives the individual the right to send a notice to the data controller requiring him to stop the processing within a reasonable time.

 

Section 13 Data Protection Act 1998

An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

[jonni2bad]

If, like several of us here, you will be including the stipulation that your default is removed as well as a refund of charges, then

 

a) you are likely to face stiffer opposition from the banks and you should be prepared for the possibility of facing them in court (as everyone should, but the chances might be higher)

 

b) it seems likely that a seperate claim for compensation could well be possible if you do get the initial 'win' (even if they don't attend court).

 

I'm not too sure that you would claim compo based on the DPA though - I think, from the samll amount of posts on this subject, that you would likely claim in respect of a "deforemation of character" type scenario.

 

If and when you get to the stage of court proceedings, then you should contact the site's bigwigs (i.e. BankFodder) for further, more personalised help.

[BankFodder]

We don't know nearly enough about the DPA.

 

However, I'm away for a few days from the end of this week and I have just received a big book on the DPA - compliments of Amazon gift tokens!!

 

I am taking the book with me and when I come back, hopefully I will have to some extent sorted out some ideas about it.

 

Certainly the processing in a manner likely to cause distress had occurred to me.

I knw that there is a County Court action for DPA violations, so I need to understand how they all fit together.

 

However, with distress, dmages would only be awarded onthe basis of proof of distress so a claimant would have to provide crediable evidence that he had suffered distress and how this had affected his life, family etc.

 

I have a sense that with the help of the pretty good OFT report that we will be able to start making inroads into the banks for defaults and into the whole defaulting system.

My own personal goal is to have it torn down and re-established in a fair and controllable way.

[BotB]

Johnson v Medical Defence Union (No 2), 3 March 2006

 

In any event, his claim for compensation for damage to his reputation was misconceived. S 13 entitled a claimant to be compensated for pecuniary damage. A claimant who proved pecuniary damage could also claim compensation for distress caused by the contravention. But s 13 did not permit the recovery of compensation for general damage in the nature of loss of reputation or for any other general head of alleged loss.

 

Quote from the case Diddled helpfully posted. A medical consultant's membership was withdrawn as a review of his professional record over the years indicated he was too high a risk for professional indemnity insurance. He claimed the decision was made by unfair processing of data and included a claim for compensation for damage to his reputation. He was unsuccessful.

 

It will be necessary to prove actual financial loss/damage and if you can do that, then damages for distress can also be included. So there will be no defamation claims in the guise of S13 compensation if we are to be guided by this case.

[diddled]

In Douglas v Hello nominal damages were awarded even though there wasn't any actual loss.

 

The nominal sum under the Data Protection Act was explained in the April judgment. The Honourable Mr Justice Lindsay reasoned that, while the couple may have suffered damage or distress, such damage or distress was not by reason of a contravention of the Act.

 

 

 

http://www.out-law.com/page-4052

[BotB]

In Douglas v Hello nominal damages were awarded even though there wasn't any actual loss.

 

Yes there was otherwise not even nominal damages could have been awarded.

 

The Douglases only got £50 each under DPA because the Court had already awarded compensation (£14,000 and £7000 respectively) for pecuniary loss and distress in their claim for breach of confidence. The DPA doesn't provide a route for claims where the damage alleged has already been adequately addressed by other means. The nominal damages award was made simply to acknowledge the fact that they had indeed successfully satisfied the Court that there had been unfair data processing as a result of which they had sustained financial loss and distress.

[sazz]

Hi Guys,

 

I've just received the usual 'pass the buck to customer relations' reply to my Prelim letter. I have 2 accounts that I'm pursuing charges on and both have now been defaulted, even after many meetings at my branch to dispute the mess my student & current accounts are in as a result of their charges.

 

I'm have my credit report from Equifax which shows nothing & I'm waiting on Experian & Callcredit. Experian are the agency Bank of Scotland register with.

 

I had an appointment at Clydesdale to apply for another student account & have received a letter saying I wasn't able to be accepted & to contact Experian for my file.

 

Obviously BOS having defaulted me on 2 separate accounts when they are clearly in dispute beggers belief! They have also passed the accounts on to the lurvely Blair Oliver & Scott who call at least twice a day. I've notified them of my beginnings of possible court action & have sent a letter requiring all correspondence in letter form from now on.

 

I kept the unlawful default statement on the prelim letter & sent it to my branch who have now referred it to the ever helpful customer relations. If and when it comes to submitting the forms for court action, can I put an order for the removal of the defaults and what are the particulars? Also where would I stand with regards to the fact that the default shouldn't have been applied, but since they have been, I've been declined for other banking facilities as a result?

 

Any comments or suggestions

[daisy lighter]

Have you contacted the CRA's yourself to register with them that these accounts are in dispute?

 

If not - do as they will contact the companies involved and query these for you if you tell them that you have tried to sort the situation out yourself and have got nowhere.

Once they have been made aware of a dispute and you tell them that your next step is DPA action which includes them for processing incorrect information that you have now made them aware of (they will tell you that they only make avaliable what they are given and are therefore not responsible) but God does it speed things up!

I have used the online dispute system with DPA mentioned with both Equifax & Experian and have had several problems resolved that way ( even though the onlines credit files are a rip off ) I was desperate and in a hurry.

Having disputes registered 'may' rule you out of recieving credit by an automated credit scoring system but if you need to you can always write and ask for a manual decision (another DPA gem)

This works too.

 

Good luck with Blair Oliver & Scott - they are not easy to deal with but if you stick to your guns you will win. (not bank charges but in 2004 I got them to remove two defaults & a CCJ with over two grand on it) Removed from files and CCJ showing as satisfied on court records.

 

All DPA - they dont know it and are petrified of it!!

I say try

[Nightmare4banks]

Hi all!

 

Having read through the cases listed(also having personally worked in the mortgage industry),

The listed cases discuss compensation for privacy intrusion and professional indemnity insurance qualification which are completely independent of consumer credit data files.

 

I think that:

 

1.anyone who had his/her credit rating damaged by virtue of any inaccurate information put on the credit files could be compensated in way had the inaccurate information had not been put there in the first place.

 

2.once defaults and CCJs are on the credit files the person who has a default and/or CCJ on his/her credit files would find it impossible to obtain unsecured credit facilities only maybe at "loan shark" rates.

 

3.if the person is a homeowner and has defaults and CCJs on his/her credit files

a higher price would be paid for the borrowed(secured i.e.mortgage and/or secured loan).

 

4.In conclusion,if these defaults and CCJs were caused by unlawful charges and as a result monies were borrowed at a higher rate since,this in my view would "trigger" the right to obtain compensation for the inaccurate information on the credit files with the CRAs.

 

Anyway,this is my 2p's worth.

[andrew1]

That information is worth far more than 2p! - thanks.

[Nightmare4banks]

Hi all!

 

Andrew1,I was hoping that!

 

I would have also thought that there is a "double edged sword" with both the creditor and the CRA with regards to claiming compensation - in the event of any awkward response from the CRAs.This is because the CRAs are "aiding and abetting" the creditors in carring on their torts/wrong doings by virtue of refusing not to amend the credit files once they are informed about the incorrect data.

However the amount of compensation to claim from the CRAs would be much less due to the nature of the relationship between the CRAs and the creditors.

 

Again this is my further 2p!

[ricky young]

was reading this and was wondering.. i have been bad with banks since i first got an account and got charges from word go. I now think this is the reason that from 18 to 26 (which i am now) i have been unable to get a credit card, loan or anything.

The only thing i got was a car from yes car credit which i paid heavily for. Surely the reason i couldnt get it from a proper garage was because of the banks giving a bad credit thing!!

 

Does this mean all money i owe yes car credit (Which i never would have got if there were other options) is actually refundable.. will never pursue but it theory is that right?

[alanfromderby]

 

Does this mean all money i owe yes car credit (Which i never would have got if there were other options) is actually refundable.. will never pursue but it theory is that right?

 

The short answer is no!

 

However, you may, in theory, have a claim against the bank that has defaulted you, and put damaging information on your credit file. Of course, that would be on the basis that your poor credit score was totally down to the incorrect information.

[ricky young]

dont think it could be down to anything else as i have been unable to obtain credit anywhere anytime!!!! am i right in thinking this is not worth the effort that would be involved??

[Nightmare4banks]

Hi all!

 

Now,Ricky Young in answer to your question as Alanfromderby told you - no!

 

However,possibly due to the fact that you have a bad credit file would make it very difficult for you obtain credit.Then you could potentially - as outlined in previous postings see that the inaccurate data is removed and sue for damages.

 

I would suggest that you request a copy of your credit file from Experian and Equifax - quoting your addresses over the last 6 years together with the statutory fee of £2.You should receive the information within 7 working days.

 

When you do receive your credit file,post the details so I can assist you further.

 

I hope you find this information useful.

 

Any questions,feel free to ask.

 

All the best!

[Tashja]

Hello

 

I have just been having a read of this. I work as a trainee fee earner (rta only) and I have done 1 year of Law Degree but I am still getting a bit lost.

 

I have requested copies of my Credit Reports and sure enough Barclays hae defulted me

 

On my Equifax Report it says

 

BARCLAYS BANK (I) ** BANK DEFULT * MRS X X XXXXX

Terms 0 @ £0.00 Monthly

Balances Limit £0

Start £0

Current £+82

Defult £54

 

Effective Dates Start

Defult 01/2004

End 23/01/2004

DOB 12/09/1980

Insight last updated 12/01/2005

Monthly Status D

 

Ok . . . .

 

This account is closed - we had a severe car accident and I couldn't leave the house for 6 months ad lost my job - this is when the problems started.

 

As soon as I got compensation fo the accident I paid it into the account, cleared all the outstanding charges and bought the balance to £0.00. Stupid, stupid girl I never closed the account.

 

Approx 3 months after this I had a DCA turn up on my doorstep saying I owed Barclays £82.00 - I called the bank and they had missed a £30 charge which then put me £30 overdrawn- because I was £30 overdrawn they added another £30, an unauthorised overdraft charge and interest:mad:

 

I argued this with the bank and they agreed they were in the wrong and put the account at £0.00 balance again ..... I then closed the account.

 

AND NOW THIS :mad:

 

I am so damn mad - I have had a perfect account with NatWest for 2 years - never even been close to being overdrawn but it is only a step account - I have asked to have it upgraded and I have always failed the credit scoring and they are saying now it is because of the Barclays Defult. I have also had to go to a mortgage lender with not a very good interest rate and again I tink it is because of this As far as I can see there is nothing else on there.

 

In my letters to thwe bank (LBA sent 19th May) I have asked for te Defult to be removed. I have also written to Equifax advising them a) this has been settled and b) I am fighting Barclays for my charges.

 

Can I get compensation ???

 

Please can someone help - sorry for the long post

 

T xx

[Nightmare4banks]

Hi all!

 

Tashja,I am very sorry to read about your accident and problems with Barclays Bank.

 

In my view,you would be entitled to compensation.Please do not ask me how much - we will go through that later.

 

Please note the following:

 

To begin with,you need to answer the following question:

 

Did Barclays Bank admit it in writing regarding the error it made?

 

1.If yes,use it as ammunition to pass on to the credit reference agency in order to amend your credit file.Make a copy of the letter and request that the Credit Reference Agency amend your credit file - be nice in the first letter.If you feel that the credit reference agency is being unhelpful - say that you think that it is being biased and you will be suing the credit reference agency and Barclays Bank - for putting incorrect information on your credit file.

 

2.If no,do a DPA - Data Protection request(template letter can be found on this site) to Barclays enclosing the £10 statutory fee.Do not worry about the account being closed.Simply,request all the information that Barclays has about you.

 

When you have the information at hand regarding your Barclays account - either you have written evidence from Barclays(wishful thinking in my view!) or you receive a reply to your DPA request,I will be in better position to hopefully assist you further.

[andrew1]

A usueful exercise is to get your credit reference file from the Credit reference agency Equifax or Experian and have a look at what is actually registered against you. It only costs £2 and at least you'll know what been said about you to other lenders like the mortgage etc which have casued you to pay higher rates of interest. Bad credit ratings for whatever reason are a gift to these institutions to charge you higher interest and it may be for something stupid like these charges you refer to. You might have cause to claim this differential from the bank who registered the defaults -but you'll need proper legal advice on that.

[gemspan]

Hi there

 

Here is my story. How do you think I stand?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=71565&goto=newpost

[diddled]

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