reallymad v HSBC

[Castlebest]

I think until they can provide the information you have requested they get sweet FA because until they provide a true copy of your agreement there is no debt.

 

pete

[davey77]

You can check for company details here:

Companies House

 

The Office of Fair Trading issues the licenses and holds the Public Register of such companies.

 

"The Consumer Credit Public Register lists everyone with an OFT licence as well as everyone who has applied for one or has had one taken away or suspended. It’s free to get basic information from the register, including trading names and the activities for which a business is licensed.

 

To search the public register, telephone 020 7211 8608 between 9.30am and 4pm Monday to Friday."

[reallymadwoman]

A small victory. On the current account, Marlin have closed their file after the third time I told them 'get lost, account in dispute' and suggested I contact HSBC!

As HSBC have already removed all reference to the account from my credit file, which was really what I wanted to achieve, why would I go and do a silly thing like that? I'll just wait for the next DCA to start writing and go through the whole process again. Ony 5 years and 5 months until it's statute barred and I can write a different letter.

[davey77]

It's a nice feeling to know you have made them waste their time with you that's for sure! Well done!

 

Statute barred eh? hmmmm 5 years left to go for me on some of mine!

[reallymadwoman]

And on the credit card account, a letter today from Marlin saying if I send them a copy of HSBCs letter saying there is no agreement they will consider closing their file. Kind of them.

[reallymadwoman]

Letter sent yesterday with a copy of HSBC's letter and a dig about it not being up to me to prove a debt doesn't exist but in the interests of expediency ...

 

The clock is still ticking from the date of the original complaint though, so they'd better get their collective fingers out and send the letter I want to receive.

[Castlebest]

sounds like your almost there RMW

 

pete

[reallymadwoman]

Fingers crossed that one file at least will be safely stored in the loft soon. Shame I can't say that for the Bank of Scotland file.

[reallymadwoman]

And Marlin have now closed their file on the credit card.

 

I wonder who HSBC will send it to next?

[reallymadwoman]

I've not heard anything more on either account for a month. How many before I can relax - about 5 years and 3 months until it's statute barred?

[Castlebest]

Good grief RMW I havent heard anything about my claim for 6 months and I know thats still live about 5 years and 3 months is nothing you want everything .

 

I would say your safe to carefully pack your papers away in a box marked do not open until September 2013 and put it in the loft who knows what they may think up to come back at you with in the future but at least you will still have the records

 

pete

[reallymadwoman]

It seems Marlin want to play games. If both their files were really closed 2 months ago and returned to HSBC, how come they've just (in the last week) put two entries on my credit file?

 

It's just as well my file hasn't quite made it to the loft yet and is still currently residing on the bedroom floor. I feel a strongly worded letter coming on ....

[Castlebest]

Have you received any notice of default from Marlin? also they shouldn't do anything while the account is in dispute so it looks like its time to write to them

 

pete

[reallymadwoman]

They've already had a s10 notice (which they didn't respond to) and I have a letter for each file confirming they are returning the accounts to HSBC. I really don't feel like messing about with them this time around, so I'll be going straight for an LBA once I've done my research. They will then have 21 days to confirm that the data has been removed before I head for the court.

[Castlebest]

go get em rmw

 

pete

[reallymadwoman]

Letters gone (recorded of course!) to Marlin giving them 21 days to remove the data or I start court action.

Edited June 6, 2008 by reallymadwoman

[reallymadwoman]

Time is up on Monday.

 

Any comments on draft Particulars of Claim? Now amended - see post 131.

 

 

 

 

 

• The Claimant was alleged to have held accounts with the Defendant, numbered XXXX (account 1) and XXXX (account 2).
  
• Following extensive correspondence between the Claimant and the Defendant, the Defendant agreed that no monies were owed to them by the Claimant and closed their files on XXXX, 2008 (account 1) and XXXX, 2008 (account 2).
  
• On XXXX 2008, during a routine check of the Claimant’s credit reference file, the Claimant noticed two entries in the Defendant’s name in respect of the alleged accounts. The entries were not on the Claimant’s credit file when it was previously checked on XXXX, 2008.
  
• The entries allege that the total amount owed by the Claimant to the Defendant is XXXX (account 1) and XXXX (account 2). Both entries show the account to be ‘in default’.
  
• The Defendant has failed to comply with a Statutory Notice issued by the Claimant pursuant to s.10 & s.12 of the Data Protection Act 1998 (the Act) and continues to unlawfully process data regarding the alleged defaults with Credit Reference Agencies.
  
• The Claimant has suffered damage, namely costs in corresponding with the Defendant regarding the alleged debts and the entries on her credit reference file.
  
• The Claimant respectfully seeks;
  

a) An order under S14 of the Act that the inaccurrate data be rectified, blocked, erased or destroyed, including that held by any and all third parties to whom it has been passed, including, but not limited to, the Credit Reference Agencies

b) Costs incurred by the Claimant as a result of the unlawful processing, quantified as:-

1. Postage, stationary and printing costs £XX

2. Costs of membership of ‘Credit Expert’ @ £XX per month, 12 months £XX

c) Damages in respect of distress and inconvenience at the discretion of the Court.

 

Don't know why it's messed up my formatting, but the original is numbered as usual.

Edited June 11, 2008 by reallymadwoman

[reallymadwoman]

I've been unable to locate a transcript of the 'kpohraror' case. If anyone has a link it would be very much appreciated. I will be going for the default + £1000 that others have mentioned in connection with this case, but I would like to make sure I've got my facts straight first, as that would be rather a large sum of money.

[jowalshy]

Just to let you know rmw I am hunting high and low for it (and have been since you posted) Hopefully I will find it soon.

[jowalshy]

I am really sorry but I was unable to find a direct link to the actual case, but I have quoted from another thread which does mention it. Whether it is waht you want I don;t know, but I hope it helps a little

 

 

Lookinforinfo has just pointed me to a case ( Thanks mate this is very useful tome)that I believe will be of great importance not only to me but others who are fighting incorrect defaults on their credit file, so I have put this in my letter to Experian also I have put this at the end and and told them to take special note of the sections that appertain to my claim against Experian.

I've copied the relevant sections from the judgement summary which is very long but will prove useful to others also. I've highlighted special sections.

Although in Scotland the cases referred to this summary will be very useful in persuading a Judge to side with you.

 

sparkie

 

Richard Durkin

 

against

 

DGS Retail and HFC Bank

1. Counsel for the pursuer submitted that in addition to the actual losses which he had sustained the pursuer had suffered a general loss to credit along the lines recognised in King v British Linen & Co (1899) 1F 928 and Wilson v United Counties Bank Limited. [1920] AC 102. He submitted that this general loss to credit sounded in damages over and above any actual damages which the pursuer may, as he had done here, sustained. Counsel for the second defender submitted that any award for damages to credit was circumscribed or limited by the actual damages sustained.

 

2. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

3. Wilson v United Counties Bank Limited was a case brought by an individual (Wilson) and his trustee in bankruptcy against Wilson's bank. The defenders' negligent handling of the plaintiff's estate whilst he was away on military service caused an actual loss to the estate, and also resulted in the pursuer, Wilson being made bankrupt. The trustee in bankruptcy was held entitled to recover actual losses caused by the negligent management. There was only one claim in respect of damage to credit, namely the fact that Wilson was made bankrupt when, had the defenders managed his affairs prudently, he would not have been. There was no claim that Wilson had suffered any specific loss to his credit by virtue of the bankruptcy, but the fact of bankruptcy was recognised as a serious injury to his general credit standing. This resulted in an award in 1919 of £7,500. The case, as was also the case with King v British Linen, was based on breach of contract and not negligence. The Lord Chancellor, Lord Birkenhead, said of the type of case where a banker, though his customer's account is in funds, nevertheless dishonours the customer's cheque, that the refusal to meet the cheque is so obviously injurious to the credit of a trader that the latter can recover without allegation of special damage reasonable compensation for the injury done to his credit. He applied that principle to the circumstances of Wilson's case where a defendant had expressly contracted to sustain the financial credit of a trading customer and breached that obligation. At page 120, Viscount Findlay said that the fact of bankruptcy must injure the credit of the person made bankrupt, apart from damage to the estate. He continued "In an action for negligence against a solicitor leading to the bankruptcy of his client even if due to fortuitous circumstances the estate had not been damaged, it seems on principle that the jury might give substantial damages for injury to the credit of the person made bankrupt." Later on he said "It was urged that proof must be given of special damage in order to sustain the verdict on this head for more than nominal damages. I cannot see on what principal this contention rests. The mere fact of bankruptcy imports damage to the credit of the bankrupt. It is a natural consequence, and it is for the jury to assess the damages for such a slur."

 

4. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v WoolwichBuilding Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

 

5. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

6. Evans LJ went on to consider the issue of special damages separately. There is, however, nothing in the judgment of Evans LJ to indicate that had the special damages claim been made out he would not have made an award in terms of the general damage claim. Lord Justice Waite and Sir John May each agreed in all respects with the judgment of Lord Justice Evans

 

7. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

8. In these circumstances and standing such a recent decision where the claims appear to have been treated as being capable of existing together, I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

Mitigation of loss.

9. The only case on record for the second defenders on the question of mitigation of loss is that the pursuer did not call upon the defenders to correct the entries that related to the pursuer's account with them. I am satisfied that he did this on many occasions. In his words he "pleaded` with them". The pursuer was cross examined about his failure to utilise the somewhat tortuous statutory notification procedures which were said to be open to him to have the registers changed. There was no evidence led to indicate how these matters were dealt with in practice, how long they took to reach a final conclusion or the likelihood of the pursuer being successful in utilising them. Given the total absence of record for the point and the lack of any evidence concerning it I disregard it. I am in any event quite satisfied that the pursuer believed he had done all he could do to get the registers corrected.

[reallymadwoman]

Many thanks Jowalshy - very useful. I'm now searching for transcripts of a few more cases though!

[jowalshy]

I am hopefully getting a copy of the transcript for you. If you need any more help looking for bits and bobs, just ask

[reallymadwoman]

Unfortunately all on hold today whilst I do the usual running around and organising for younger members of the household, as usual with no warning whatsoever and the 'we need to go straight away' actual translates to me sitting around for an hour twiddling my thumbs. They must truly believe that I have nothing better to do ... wonder if they will still think that when they want dinner this evening/clean clothes to go out in etc.

[reallymadwoman]

This is a link to the full transcript of Durkin v DGS Retail and HFC Bank, which I'm assuming will be allowed as it's a link to the Scottish Courts own website.

 

RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

A short summary is that Durkin bought a lap top under a debtor-supplier-creditor agreement on the express understanding that if it did not have an internal modem he could return it. It didn't so he did, the next day. He had to take action against the store (PC World) to get his deposit back, and despite telling HFC of the dispute they registered a default against him. After several years of fighting over it, he started legal action and won, even though by then the default had 'dropped off'. As well as special damages for extra interest etc - he got £10,000 for the 'general loss to credit'.

 

A couple of key phrases seem to be

it was the second defenders duty to take reasonable steps to satisfy themselves as to whether the pursuer had validly rejected the laptop and rescinded the contract of sale, and not merely to adopt the first defenders' position without further enquiry when they knew it to be in dispute

 

On that basis, it is not a valid defence to pass the buck to someone else, e.g. DCA cannot rely on what they have been told by OC

 

I consider that if a financial organisation such as the second defender operating in the financial industry intends to make an adverse representation in a national credit reference agency as to the credit of an individual ..... and that individual submits to the financial organisation that the information is false for a specific reason, .... the financial organisation making the assertion is under a duty to take reasonable care to ascertain whether it is correct or not

 

The pursuer had brought to the attention of the second defenders his assertion that he was not obliged to pay because he had terminated his contract with the first defenders.. That put the second defenders under a duty to make enquiries

 

it was the second defenders' duty not to make such representation to credit reference agencies without having taken reasonable steps to satisfy themselves of the truth thereof, when they knew it to be in dispute

 

Therefore, as Marlin knew the accounts were in dispute when they put the defaults on my credit file (after they told me their files were closed) they were under a duty not to do it unless they had made enquiries and were sure the information was correct. However, the information cannot be correct as they have already accepted, in writing, that I owe them nothing. Whether or not I owe anything to HSBC is irrelevant as the entries quite clearly state that I owe Marlin. Therefore they have no defence. And the fact that they have now removed one of the defaults and so will probably also remove the second before this gets to court is irrelevant. I have a printout of my report with them both on there - I'm so glad I printed it!

[reallymadwoman]

I've been doing a bit more research this afternoon, as a result of which I think my particulars of claim may be too brief, so I'm working on amendments.

 

In the meantime, I have a couple of questions if anyone knows the answers.

 

1. The Durkin case (see above post) was in Scotland. I believe that means that it doesn't set a precedent for an English Court but it could be used as 'guidance'. Have I got that bit right?

 

2. The supporting evidence - e.g. case law - goes in the statement of evidence later on, not the POC?

 

3. On the 'brief details of claim', as I'm claiming damages at the discretion of the court plus a small fixed amount, what do I put in the 'amount claimed' box. Is it the fixed amount plus 'I expect to recover less than £5000' or just the 'I expect to recover ...' bit?

 

4. Can I or should I claim interest on the damages bit? It really isn't worth claiming on the small fixed amount.

 

 

Finally, apologies for all the questions but this one is a request. Originally this thread was a bank charges reclaim, but it's now really a debt collection industry thread, so could someone please move it for me?