reallymad v HSBC

[reallymadwoman]

Can anyone help?

[freakyleaky]

Hi RMW. I will have your thread moved for you. In the meantime I am just getting some clarification on the Scottish question for starters.

oh and I am fairly certain that you can't claim interest on the damages.

Be back later.

[freakyleaky]

Re the Scottish question:-

Wasn't it in a sherrif's court? (ie the equivalent of a County Court) in which case no precedent is set anyway.

[reallymadwoman]

Thanks - it's what I thought, but useful to have confirmation.

[reallymadwoman]

Oooops!

Edited June 11, 2008 by reallymadwoman
Duplicate post

[reallymadwoman]

Amended particulars of claim, issued today.

 

1. The Claimant was alleged to have held accounts with the Defendant, numbered XXX (account 1) and XXX (account 2).

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 XXX, 2008 (account 1) and XXX, 2008 (account 2).

3. On XXX 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 XXX, 2008.

4. The entries allege that the total amount owed by the Claimant to the Defendant is £XXX (account 1) and £XXX (account 2). Both entries show the account to be ‘in default’.

5. The Claimant claims that the entries are negligent misrepresentations in that the Defendant has no grounds on which to make such entries, and knew or should have known this by XXX, 2008 (account 1) and XXX (account 2) at the latest.

6. The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998 (the Act) in that

a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’ and the data ‘personal data’ as defined in s.1 of the Act

b) On 30th November, 2007 the Claimant issued a Statutory Notice to the Defendant pursuant to s. 10 of the Act, requesting that the Defendant cease processing the Claimant’s data.

c) In respect of account 1, the Defendant responded on XXX, 2008, stating that the data had been processed ‘in good faith’ that there was a lawful entitlement for them to do so. This same letter also acknowledged that no debt was in fact owed by the Claimant to the Defendant.

d) In respect of account 2, the Defendant has failed to either reply to or comply with said Statutory Notice, but confirmed on XXX 2008 that no debt was owed by the Claimant to the Defendant.

e) The Defendant has continued to process the Claimant’s personal data, such processing having continued up to at least XXX, 2008.

f) The Claimant claims that such processing is unlawful in that it breaches Principles 1, 4 and 5 of the Act.

g) Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendants meets none of the conditions in Schedule 2, which the Defendant knew or should have known by XXX, 2008 at the latest.

h) Principle 4 states that ‘Personal data shall be accurate and, where necessary, kept up to date’. The entries in the Claimants credit reference file are neither accurate nor up to date, which the Defendant knew or ought to have known by XXX, 2008 at the latest.

i) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the XXX, 2008 at the latest.

7. As a result of the unlawful processing and/or the negligent misrepresentation, the Claimant has suffered damage, namely costs in corresponding with the Defendant regarding the alleged debts and the entries on her credit reference file, distress and inconvenience.

8. The Claimant respectfully seeks;

a) An order under s. 14 of the Act, subsections 1 and 4, that the inaccurrate data be rectified, blocked, erased or destroyed.

b) An order under s. 14 of the Act, subsections 3 and 5, that the Defendant notify third parties to whom the data have been disclosed of the rectification, blockage, erasure or destruction of the data.

c) Under s. 13 of the Act, subsection 1 the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as:-

1. Postage, stationary and printing costs £XX

2. Costs of membership of ‘Credit Expert’ @ £X.XX per month, 12 months £XX.XX to ensure that the entries are removed and are not reinserted

d) Under s.13 of the Act, subsection 2 the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court.

e) Additionally, or in the alternative, the Claimant claims damages for negligence causing general loss to credit, at the discretion of the Court.

 

[reallymadwoman]

Because of a problem with the supporting evidence for my fee waiver claim (the letter was dated 1 day too early!!!!!) I'm going to have to take everything back to the court again as soon as a new letter arrives from the benefit people. Still heard nothing from Marlin though, even though Experian said they would be contacting me directly two weeks ago.

[reallymadwoman]

Had an email from Experian this morning saying that Marlin had told them to remove the one remaining entry on my credit file. This leaves me with a dilemma - should I or shouldn't I go ahead with the claim for compensation.

The entries were on my credit file for less than 3 months, and in all honesty they probably did no harm at all bearing in mind what else is on there. The only real damage is my time in writing a few dozen emails to Experian and the cost of a couple of letters to Marlin.

On principle, I think they owe me something for the hassle, but how is a judge likely to view a claim where so little harm has actually been done? On the other hand, if I issued a claim just for my costs - say £100 or so - are Marlin likely to just pay up rather than defend?

 

All opinions gratefully received.

[reallymadwoman]

Very much simplified claim issued via MCOL today for a fairly small amount of compensation.

 

I am not really hoping that the claim is ignored/forgotten about so I can eventually send in the bailiffs. Honest.

[reallymadwoman]

Claim was issued yesterday (via MCOL), so I imagine will be recieved by Marlin on Monday. How long after posting would the courts normally allow for service? And is it correct that Marlin have 14 days after that to acknowledge service? What if they don't - can I go straight for judgement?

[reallymadwoman]

Have just received 'Notice of Issue' which answers all the above questions. Claim posted 11th July, deemed served 16th July, defendant has until 30th July to reply. Put that date in my diary!

[reallymadwoman]

I guess I was expecting this, but I've heard absolutely nothing from Marlin, and they now have less than a week to acknowledge service. If they don't by 4 pm next Wednesday, I'll be asking for judgment by default and enforcing as soon as I can.

 

Now I happen to have bank details for Marlin, which they kindly provided when they wanted me to send them some money, so I could go straight for a third party debt order, which might embarrass them slightly. Anyone ever tried this?

[reallymadwoman]

Is this a new form of torture devised by those who would like us all kept firmly in our place?

 

I'm having to exercise considerable restraint not to keep checking for updates on MCOL every five minutes.

I know that they could file an acknowledgement up until 4 pm this afternoon, and it might not get processed straight away, and even if I do get judgement by default the chances are they will apply to have it set aside, but I still can't wait to hit that button.

[reallymadwoman]

Judgement by default awarded.

 

Do I send in the bailiffs straight away or give them a few days to pay up, bearing in mind they ignored 2 letters and an LBA and the claim form.

[reallymadwoman]

I sort of expected this, but as soon as they received the judgement Marlin set their pet solicitors on to me saying the claim form wasn't served so they're applying for a set aside.

 

My initial reaction was to contest the application even though it's pretty pointless, but I'm now thanking them for giving me the opportunity to amend my particulars of claim to reflect the fact that although they removed the data from one CRA, they've just put it on the files of a different one. I bet they don't expect that one! I wonder how long it will take them to offer settlement.

[reallymadwoman]

I've now received a copy of the set aside application from the court and I've decided to oppose it on principle as I would actually be happy to settle for the judgement amount plus removing all data from the CRAs. Despite Marlin asking for the hearing to be held at their local court, it's been automatically transferred to mine so if they send someone to the hearing, it will be a nice day out in West Dorset for them.

 

I've spent a couple of days researching on the forum, and I'm planning to respond to their evidence point by point as if I was doing a defence, and include copies of anything relevant, which I will then send to the court and the solicitors about 14 days before the hearing. Is this a reasonable approach?

 

Their main arguement is that they didn't receive the claim form, so if anyone else has had a similar arguement from Mortimer Clarke and is willing to give me a claim number (by PM if necessary), I would be grateful.

[emmaf01]

I'm only at the beginning of our fight, so this is incredibly informative.

 

RMW, I wouldn't go up against you!

[reallymadwoman]

I hope Marlin/Mortimer Clarke are beginning to realise that they've picked on the wrong person, but all credit has to go to CAG. Everything I know, I've learnt from here.

[emmaf01]

I'm so glad I found CAG- oops, it sounds like we've all joined a cult!

 

Saying that, the benefits are massive, the people are great and it really does change your life for the better- there aren't many religions with that sort of positive write up IMHO...

[reallymadwoman]

I've now also received the hearing date - the day my Dad goes in to hospital for major surgery. I absolutely cannot attend on that day, my Mum will need me to hold her hand even if I didn't need to be there for my own reasons, and I'm likely to be away for the two weeks after as it's too far to travel backwards and forwards on a regular basis.

I'm going to contact the court tomorrow and see if I can get the date moved, but if not can I just submit everything in writing and hope for the best?

[reallymadwoman]

I could really do with some reassurance on this. I've done my research, and I think I'm right, but this is my first experience of court and I want to be as sure as I can be that I've dotted and crossed everything.

 

1. It will cost me £40 to apply to have the hearing date changed.

2. The set aside will almost certainly be granted whatever I say - I've yet to find a case on CAG where it hasn't been.

3. I have no burning desire to be in a court room.

 

Given all of the above, the outcome I want is for Marlin to settle before any of us need to go near a court room. I've sent the solicitor copies of all the pre-litigation correspondence, including the two letters from Marlin saying I don't owe them anything and copies of the entries on my credit files (dated 4 months later) saying that I do. I don't see that they can have any defence at all, and the only thing they could quibble about is the amount claimed, which is already very modest. Any reasonable solicitor would undoubtedly have advised their clients to settle already, but we're talking about Mortimer Clarke here, and I've not heard a word from them since their original letter.

 

I've drafted a response to their set aside application basically demolishing every point they made (and incidentally providing evidence that at least three statements in the accompanying 'statement of truth' are out and out lies) which I'm reasonably happy with. I would like a second opinion but I don't want to post it on here yet for obvious reasons. Given my own reservations about giving advice via PM, it's a huge cheek, but if anyone is willing to look at it I would be very grateful and I promise not to take any suggestions as gospel without checking with someone else.

 

What I'm thinking of now is to send the response plus a load of other stuff I intend to include as evidence now (instead of in another 5 weeks) in the hope that it pressures them into making an offer. If that doesn't work, I'll send the whole lot to the court with my reasons for not attending, knowing that it probably wouldn't have made any difference anyway. You never know, they might not turn up either, especially as it's not a particularly easy drive from Worthing to the court - that last stretch of main road particularly is a pig!

 

I need to include some draft directions/orders which I also need help with. If the set aside is granted, I'm asking for permission to apply for summary judgement on the grounds that the defence has no reasonable prospect of success, and permission to amend my particulars of claim along the lines of those earlier in this thread. I have no idea if permission to apply/permission to amend is a direction, order or something else and so can't really get started on wording them. Any help would be very much appreciated - I'm not expecting anyone to word them for me, just give me a clue.

 

Thanks to all.

Edited August 27, 2008 by reallymadwoman

[reallymadwoman]

I've taken my own advice and had a good read of CPR and now know that I'm apparently asking for permission to make applications to amend the particulars of claim (CPR 17) and for summary judgement (CPR 24). Asking for permission can be done orally during the hearing so presumably can also be done in written submissions. I'm guessing that I won't also need to submit the application forms then as they can be submitted once I do have permission, but if anyone knows different please, please tell me.

 

I've also had a read of what I sent to the solicitor three weeks ago, and I then gave them 14 days to send me the stuff that should have been sent under the pre-action protocols etc, and surprise, surprise, they haven't replied. They do like giving weight to the opponents arguments, don't they? A classic case of with enemies like these, who needs friends?

[reallymadwoman]

Can anyone help with this please? I do need to get something in the post by tomorrow if possible.

[davey77]

Wish i could help but Court stuff still makes my head go fuzzywuzzy I'm afraid. Just to let you know i am rooting for you all the same.

[reallymadwoman]

I never doubted it, Davey.

 

I'm pretty confident that I've got the right idea (mostly 'borrowed' from other threads) but it's just that last little drop to make me confident enough to put it in the post.