car2403 -v- GE Capital Bank (Default removal)

[car2403]

Incidentally, they (Salans) wrote to me on 6 March to say they would refund the charges and interest - that hasn't happened yet, according to Customer Services. I'm now writing to them to say they haven't done what they said they would, have attempted to unlawfully default me again as the "new" default notice included the charges that they haven't refunded yet again and that I will agree to discontinue the claim if they agree to remove the defaults now, especially as the outstanding balance will be clear once they get their fingers out and refund the charges/interest. Worth trying my hand at settling, now, I reckon? All I want is this damned default removed! If they don't take the bait, I should be hearing from the Court sometime next week or the week after that with the final determination hearing date.

 

Interesting times...

 

This letter went to the Court as well, with all the attachments relevant to prove my case against GE in this area. (That's a letter to the Judge outlining that they've failed to negotiate despite requesting a stay in proceedings for that specific reason, all the "without prejudice" letters I've sent them asking them to negotiate during the stay period which was ignored, a copy of the "new" Default Notice, a letter from GE saying they wouldn't be pursuing the debt while it was in dispute with the Court, a letter from Salans saying the charges + interest would be refunded and a couple of harassment complaint letters I sent)

 

The Judge must have had a real chuckle to himself when he read that little lot - the order is;

 

1. A copy of the claimants letter dated 8 April 2008 be sent to the Defendants Solicitor. (This is the little lot, above, which is attached to the order)

 

2. The Defendants Solicitor shall within 7 days of receitp of this order write to the Court giving details of the directions whey they seek for determining the matters in issue, after which the Court will give further directions on paper without a hearing.

 

3. Because this order has been made by the Court without considering repreesntations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver to the application to the Court to arrive within severn days of service of the order.

 

Dated 14 April 2008

 

Now, the order is dated 14 April, but it's dated (at the top) on 24 April and I received it today. Seems they have until 1 May to say how they are going to proceed.

 

I'm not happy about this, as I specifically said

 

I would therefore ask the Court to review the file and set a final hearing for the determination of the claim.

 

Why would the Court ask GE how it wants to progress? It's my claim, not GE's! I'm fuming... I suppose I should wait to see what their response is, (the Court will take longer to review my reply to this order than it would to wait for the Order to expire!) before deciding what to do.

 

All this and I received this email from Salans;

 

Without Prejudice and Subject to Contract

 

Dear car2403,

 

Thank you for your letter dated 12 April 2008.

 

That's the one saying "you promised to refund the charges + interest, but haven't done so. I've now paid the balance off to stop you unlawfully defaulting me again and I now owe your client no money whatsoever

 

I have instructed my client to clear the balance (once the amount of charges debited and the balance itself have been verified).

 

The amount has been verified already - I've sent them a breakdown of charges with statutory 8% interest, which covers the difference between the payments made and the outstanding balance. In fact, they have agreed to refund the contractural interest, so they will owe me money, now!

 

Your Credit Records;

 

Our client is not able to remove any default notifications to "cleanse" your credit records.

 

Really?!

 

All data passed to the credit reference agencies accurately reflects the manner in which you operated your account.

 

Perhaps this is true, but we'll see how far your arguments get you in Court...

 

Settlement Offer

 

However, our client is willing to settle both your claim and we set out its terms of settlement below:

 

Oh, so you ARE willing to negotiate, despite the stay you requested in the case expiring? That's nice of you...

 

(1) Your account be closed and GE Money to confirm to you in writing that you have no further liabilities to it in respect of this account.

(2) You file a Notice of Discontinuance with the Court it respect of both claims and copy such notices to us.

 

In fact, this means "if you withdraw your claim against us, we will let you", as I don't owe them a penny - this, IMHO, is a slap in the face and doesn't amount to a "settlement offer".

 

Please be advised that Lewis Debt Recovery will no longer be pursuing you for the money you owe as our client has repurchased the account.

 

How can a debt collection agency chase me for a debt that doesn't exist, after I've paid it off, exactly?

 

We have advised our client that the credit agreement is enforceable.

 

This is now irrelevant as there is no balance outstanding.

 

We look forward to hearing from you.

 

Oh, you will...

 

Yours faithfully

SALANS

 

If I was fuming before, I'm now on fire!

 

My response will be;

 

Dear Sirs,

 

WITHOUT PREJUDICE SAVE AS TO COSTS;

 

Thank you for your "settlement offer". I refer to it in quotations, as this is how you have described it, but I do not see how you can refer to it as such as you are effectively saying "withdraw your claim and we will agree to the withdrawal".

 

To clarify my position in these proceedings, I would like you to note the following - there is no outstanding balance, as once your client has corrected its records (as you said it would do in your letter dated 6 March, but it is yet to action) the balance remaining on the account will be zero at the least, or in the negative, and that your client continues to process my data unlawfully for the reasons stated in the claim itself and all submissions which have been made to date, which you seem to have totally ignored. It is for these reasons that I am not willing to withdraw or discontinue my claim against your client, as outlined in your email dated 24 April.

 

I note that the Court has ordered you to inform it of your intentions with regards these proceedings, in an order from District Judge Pescod dated 24 April 2008. I look forward to hearing your reply to that order, in the form of draft directions for the Court to consider. I have already requested that the Court set a final hearing date for determination of the outstanding issues - if your client continues to refuse to remove the default notifications shared with the credit reference agencies, despite asking the Court to stay proceedings to negotiate on this precise issue, the Court will have no alternative but to set a final hearing date, as I am unwilling to withdraw my claim for the reasons stated herein.

 

Further, I am willing to extend my offer of settlement contained within my letter to you dated 12 April for another 7 days from your receipt of this email - after this time, I will be unable to communicate with you further, as I have nothing more to add to this conversation and I would suggest that you request the Court to set a final determination hearing, as requested by me, to resolve the issues we are unable to agree upon. The terms of settlement on offer, now, are;

 

1. GE Money agree that any default notification, or any other adverse information, made by the GE Money, to Experian, Equifax, CallCredit or any other Credit Reference Agency, in respect of the alleged debt under the account numbered *** will be withdrawn within 14 days of your acceptance; and

2. I agree that I will file with the Court a Notice of Discontinuance of the claim (including all issues contained within it) as above (a copy provided to you) within 7 days of your acceptance; and

3. The parties agree to bear their own costs.

 

I look forward to hearing from you at your earliest convenience.

 

Yours faithfully,

[car2403]

There's been some movement on this, but not the movement I wanted.

 

The reply to the email above from Salans amounted to "we'll check with GE Money and come back to you". They haven't come back to me. The offer of settlement above, (the final one I'm prepared to give them) expired yesterday.

 

I have received a cheque from GE Money for £3.89 - this appears to be the difference between the cash amount I paid to them to prevent them defaulting me again and the amount of penalty charges plus contractural interest applied to them.

 

The order from the Court seeking directions from GE expired yesterday. It seems to me that they don't want to settle the outstanding issues?

 

Just waiting for the Court to review the file again, after that order expires, and to allocate a hearing date. I may just fax the Court again to let them know GE are playing silly buggers with us both and urge them to set a hearing date, as I did originally request for on 8 April. (I don't know why they've given them this extra time!)

 

I can't wait to see what the Judge says to all this - I'm now preparing my statement of costs, at £9.25 per hour plus disbursements, as I made my first CPR Part 36 offer on 10 January and - due to GE's stubbornness - the claim is still ongoing.

[car2403]

Just waiting for the Court to review the file again, after that order expires, and to allocate a hearing date. I may just fax the Court again to let them know GE are playing silly buggers with us both and urge them to set a hearing date, as I did originally request for on 8 April. (I don't know why they've given them this extra time!)

 

GE have totally ignored both me and the Court.

 

The Courts response is;

 

Upon the Courts own motiion. The Court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

IT IS ORDERED THAT

 

1. The Defendant shall file and serve an amended defence by 4pm on 23 May 2008.

 

2. The Claimant shall, if he so chooses, file and serve amended Particulars of Claim/Reply to the defence by 4pm on 6 June 2008.

 

3. The parties shall disclose and copy to each other all documents that each intends to rely on at the hearing by 4pm on 20 June 2008.

 

4. The parties shall file with the Court and serve on each other, by 4pm on 4 July 2008;

i) a paginated bundle of documents that each party intends to rely on at the trial.

ii) witness statements of all persons who are to give evidence at the trial.

 

5. This matter be listed for hearing for the first open date after 18 July 2008.

[car2403]

Amended defence; (amended bits in red)

 

AMENDED DEFENCE

 

1. The Defendant denies that the Claimant is entitled to the relief claimed or any relief against the Defendant in respect of the matters stated by the Claimant in his particulars of claim.

 

2. The Defendant was at all material times engaged in the business of providing credit to consumers, in respect of which it is regulated by the Office of Fair Trading.

 

3. It is admitted that on 29 January 2005, the Claimant entered into a credit agreement with the Defendant for the provision to the Claimant by the Defendant of credit for the purchases of goods in B & Q Stores (“the Agreement”) (account number: **** — “the Account”).

 

4. It is admitted that no date has been inserted in the “Date of Agreement” box, however, it is denied that such omission renders the Agreement unenforceable in the event the Defendant wishes to enforce the Agreement. Presently, the Defendant is not seeking to enforce the Agreement.

 

5. Further, the Defendant denies that the Claimant has suffered any prejudice as a result of the omission.

 

6. In the alternative, if, which is denied, the Agreement is unenforceable then this does not alter the fact that the Agreement remains a valid contract. The Claimant’s obligations under the Agreement remain binding.

 

7. It is denied that the Defendant is processing data without the Claimant’s consent. The Claimant consented to the disclosure of details of his application and how he conducted his account (including any default) to the Credit Agencies by agreeing to be bound under the terms of the Agreement.

 

8. It is denied that the Defendant has passed any inaccurate information to any Credit Reference Agencies. All data passed to the Credit Agencies during the currency of the Credit Agreement accurately reflected the state of the Claimant’s account and how the Claimant operated it and was in accordance with the Information Commissioner’s guidance on the fair processing of personal data with regard to defaults.

 

9. The Claimant’s claims that any default notice was invalid on the basis that such a notice would comprise, partly, of the default charges debited to the Account which, the Claimant avers, are illegal. The Defendant denies that the charges are a disproportionate penalty, unenforceable, irrecoverable at common law or contrary to the Unfair Terms in Consumer Contracts Regulations 1999 or otherwise. The charges are a genuine pre-estimate of the cost to the Defendant of dealing with the claimant’s default and are reasonable. Any default notice or other information provided to any Credit Reference Agencies was, therefore, accurate and valid and, accordingly, the Claimant’s claim for damages in denied.

 

10. In the premises, it is denied that the Claimant is entitled to relief, whether as claimed or at all.

 

STATEMENT OF TRUTH

 

Blah, blah, blah...

 

I can't see why they've even amended it, to be honest?

 

I will be filing a response to this defence, but I can't see any need to amend my POC. (Which can be at post #10, here; http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html#post1228718)

Edited May 23, 2008 by car2403

[car2403]

Amended defence; (amended bits in red)

 

I can't see why they've even amended it, to be honest?

 

I will be filing a response to this defence, but I can't see any need to amend my POC. (Which can be at post #10, here; http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html#post1228718)

 

Here's my planned response; (I particularly enjoyed writing paragraph 10!)

 

Case Number: ***

In the *** County Court

 

 

Between:

car2403

(Claimant)

-v-

GE Capital Bank Limited

(Defendant)

_______________________

REPLY TO DEFENCE

_______________________

1. I, car2403, the Claimant in this case, am a litigant in person and I make this reply to defence statement from my own knowledge and experience, in response to the Defendants amended defence dated 23 May 2008. References made in this statement are references to the paragraphs of the Defendants amended defence, unless otherwise stated.

2. Paragraph 1 is denied, for the reasons stated in the particulars of claim.

3. Paragraph 2 is denied, in that such detail is outside of the knowledge of the Claimant, however, the Defendant is put to strict proof of the relevance of that paragraph to these proceedings.

4. Paragraph 3 is admitted.

5. Paragraph 4 is admitted, save for where that;

a) Such an omission does have an effect on the enforceability of the agreement, under the Consumer Credit Act 1974, for the reasons stated in the particulars of claim; and

b) The current enforceability of the agreement itself is irrelevant to these proceedings, as the Defendant has refunded the amount of charges (plus contractual interest applied to those charges) to the account and the Claimant has cleared the remaining balance outstanding under the agreement, having no intention of further drawing against the agreement; and

c) The Defendant has already sought to enforce the agreement by issuing a Default Notice previously, as outlined in the particulars of claim, such action amounting to a form of enforcement of that agreement. The Claimant will seek to continue these proceedings on that basis, so calls in to question the past enforceability of the agreement in those circumstances, such matters being central to the Claimants dispute with the Defendant in its Defaulting of the account and the registering of such information with third party credit reference agencies, as a result.

The Claimant, therefore, puts the Defendant to strict proof of its denial at paragraph 4.

6. Paragraph 5 is denied, in that the Claimant has suffered prejudice as a result of the Defendants omission, as outlined in the particulars of claim and at paragraph 5, above, and puts the Defendant to strict proof of the lack of prejudice caused to the Claimant. Further more, the Defendant is well aware of this level of prejudice, as the Claimant has corresponded with it regarding this prejudice on multiple occasions, should it decide to check its records again.

7. Paragraph 6 is denied, for the reasons stated in the particulars of claim and outlined at paragraph 5 above. The Claimants obligations (moral, legal, or otherwise) under the agreement have been discharged as a result of the submission at paragraph 5, yet the Defendant continues to process and share his data under the agreement. The Claimant puts the Defendant to strict proof that it had a fully enforceable agreement and that such an agreement was lawfully and accurately Defaulted, as a result.

8. Paragraph 7 is denied. No admission is made as to the inclusion of such a clause in to the agreement. Further more, where the Defendant can show such a clause, the Claimant makes reference to its submissions at paragraph 5, above, and to the particulars of claim, in that the agreement has now ended and that the continued processing or sharing of the Claimants data is unlawful as a result.

9. Paragraph 8 is denied, in that the Defendant has unlawfully Defaulted the Claimant for the reasons stated in the particulars of claim and continues to share such inaccurate information with third parties. As the Defaulting of the Claimant is unlawful, and, therefore, inaccurate, the opinion of the Information Commissioner’s Office (ICO’s) is that the sharing of such information should be ceased. The Claimant will make further detailed reference to the ICO’s opinion on this subject, outlining how this applies to the current proceedings, when so ordered by the Court. The Claimant denies that the Defendant has acted in accordance with that advice and according puts the Defendant to strict proof of such compliance.

10. Paragraph 9 is denied, in that the Defendant has denied the Claimants opinion on the application of the default charges applied to the account, but has failed to meet the strict standard of proof of placed on it by the particulars of claim.

 

If the charges are a genuine pre-estimate of the cost to the Defendant of dealing with the Claimants account, or they are reasonable in the circumstances, the Claimant further puts the Defendant to strict proof of those submissions, by fully disclosing how these pre-estimates of costs were calculated and to the actual cost of dealing with the Claimants account at each time such a charge was applied.

 

Without this level of disclosure, or alternative proof of the lawfulness and reasonableness of these charges being provided, the Claimant respectfully submits that the Defendant is unable to rely on its own submissions in this paragraph.

 

While the issue of the actual amount of these charges is no longer relevant to these proceedings, in that the Defendant has refunded those changes plus contractual interest applied to them, the Claimant submits that the issue of the lawfulness, fairness and reasonableness of the historical application of these charges is still relevant, insofar as this needs to be considered part of the Claimants argument that the Defaulting of the Claimant is unlawful and inaccurate as a result of the application of those charges, as outlined in the particulars of claim. The Defendant, it seems, apparently believes that it can avoid the test of lawfulness and reasonableness laid down by the Claimant, by refunding the charges applied, then attempting to seek further enforcement of the agreement (despite it's submission in its amended defence that it is not seeking enforcement at this time) in an attempt to alter its position in these proceedings prior to the Court considering the Claimants submissions. The Claimant invites the Court to see the Defendants attempts to mislead the Court as exactly that and to ensure that the Defendant is held to the test of lawfulness and reasonableness laid down by the Claimant, despite these attempts.

 

The Claimant, therefore, encourages the Defendant to disclose this level of detail, in the submissions ordered by the Court to be received by the Claimant by 20 June 2008.

11. Paragraph 10 is denied in full, for the reasons stated in the particulars of claim and the further submissions made in this statement.

Statement of truth;

I, the Claimant, believe all facts stated to be true.

Signed,

car2403

Dated this, the 26th day of May, 2008.

 

This doesn't have to be received by GE until 6 June, but I may just send it off this week to see if I can get some action going.

Any views on amendments/additions, etc, before Tuesday, please? I really feel like socking it to them on this one...

[car2403]

Court date set for 25 July - small claims track, with standard small claims directions. (Exchange documents 14 days before the hearing, etc, etc)

 

I'm thinking that the previous directions haven't been superceded by this hearing being listed, so I'll have to stick to those too, IMHO;

 

IT IS ORDERED THAT

 

1. The Defendant shall file and serve an amended defence by 4pm on 23 May 2008. Done already.

 

2. The Claimant shall, if he so chooses, file and serve amended Particulars of Claim/Reply to the defence by 4pm on 6 June 2008. Done already.

 

3. The parties shall disclose and copy to each other all documents that each intends to rely on at the hearing by 4pm on 20 June 2008. This comes next.

 

4. The parties shall file with the Court and serve on each other, by 4pm on 4 July 2008;

i) a paginated bundle of documents that each party intends to rely on at the trial.

ii) witness statements of all persons who are to give evidence at the trial.

 

5. This matter be listed for hearing for the first open date after 18 July 2008.

 

It will be interesting to see GE's response to this case being listed - especially now as there is no outstanding balance on the account. Now that I've paid the debt off to prevent them from attempting to "re-Default" me again by issuing another Default Notice that is, after they repaid the penalty charges applied to the account that would have made the original Default Notice invalid - I'm sure that will go down really well with the Judge when he eventually calls them to task on this whole situation!.

[car2403]

Okey dokey, this is next;

 

3. The parties shall disclose and copy to each other all documents that each intends to rely on at the hearing by 4pm on 20 June 2008

 

So...

 

 

Case Number:***

 

 

 

In the *** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant)

 

 

 

-v-

 

 

 

 

GE Capital Bank Limited

 

 

(Defendant)

 

 

 

_______________________

 

 

 

WITNESS STATEMENT AND

SKELETON ARGUMENTS OF

THE CLAIMANT

 

 

 

_______________________

 

 

 

REASON FOR SUBMISSION OF THIS STATEMENT AND ITS INTENDED USE;

 

1. I, car2403, the Claimant in this case, make this witness statement and outline my skeleton arguments from my own knowledge or experience, excepting for where reference is made to specific documentation contained within the exhibits attached where this statement is made in support of said documentation.

 

 

2. This statement is submitted by the Claimant (a litigant in person) and outlines its case in claim against the Defendant.

 

 

3. It is intended this statement will expedite the upcoming hearing and elucidate and clarify the issues that appear to the Claimant to be hampering the speedy and equitable resolution of this case.

 

 

BACKGROUND TO THE CASE;

 

 

4. The Defendant alleges that the Claimant has held a credit agreement with it since 2003, numbered *** – that agreement is said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974. (“Exhibit 1”, attached)

 

5. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to this agreement on 23 August 2006, with an original default balance of £675.00.

 

6. The Claimant claims against the Defendant, in relation to this Default, in the following terms;

 

 

PART 1:

CONSUMER CREDIT ACT 1974, AS AMENDED

 

 

7. On 11 August 2007, a request was made by the Claimant under s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. (“Exhibit 2”, attached) In addition, a request to substantiate the default information recorded was included. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on 15 August 2007, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was 31 August 2007.

 

8. In a reply dated 23 August 2007, the Defendant provided an alleged copy of the originally executed credit agreement. (“Exhibit 3”, attached)

 

9. The alleged copy agreement provided does not have a date on which it was signed by the borrower. It also has not been dated in the “Date of Agreement” box when signed by the Creditor, or their Agent.

 

10. The agreement, therefore, is not in the proper prescribed form, as set out in s.60 & s.61 of the CCA 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act.

 

11. The agreement must be properly signed, along with a date of signature, by both parties;

 

“1983/1553;

(3) The signature of the said document shall be made in the following manner-

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to subparagraph (e) below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph (e) below, the date of the signature shall be inserted outside any such signature box;

(e) in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;”

 

12. The Claimant also refers to the Office of Fair Tradings guidelines on “Cancellable agreements”, under which this agreement falls in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under, which state;

“Signatures

…All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box…”

13. The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act.

 

 

14. The Defendant is, therefore, unable to enforce the agreement without a Court Order under s.65(1).

 

 

15. Any application for an Enforcement Order under s.65(1) of the Act, as a result of the improper execution under the Act, should be dismissed under s.127(1)(i), due to the prejudice caused to the Claimant, namely;

a) The Claimants pleadings regarding the defaulting and termination of the account, outlined in paragraph 16-23 of this statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)

ii. This improper default and termination has effected (and continues to effect) the Claimants reputation and credit rating held by credit reference agencies;

iii. The Defendants failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information. (As outlined at paragraphs 24-82, below) (“Exhibit 4”, attached)

b) The Claimant disputes the balance of the account, as outlined in paragraph 16 of this statement;

 

16. The Claimant disputes the balance of the account, as during the period in which the account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. (“Exhibit 5”, attached) The Claimant understands that the Defendant will contend that the charges were debited in accordance with the terms of the contract between itself and the Claimant and accordingly puts the Defendant to strict proof of such terms existence. The Claimant contends:

a) No such contractual provision exists to allow the Defendant to levy such charges;

b) Where there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Defendant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Claimant puts the Defendant to strict proof that every charge made to the account was valid and lawful.

d) The Claimant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

 

17. The Defendant has failed to fully comply with the Claimant’s request for information to substantiate the process taken to Default the agreement, under the original s.78 CCA request.

 

 

18. Accordingly, the Claimant puts the Defendant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

 

19. Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 16 of this statement.

 

20. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

 

Para 49;

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

21. The Claimant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

 

22. The Claimant refers to part of a Judgement from Sir Andrew Morrits in the Court of Appeal in Wilson v First County Trust [2001] EWCA Civ 633;

 

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AGREEMENT CORRECTLY;

 

 

23. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

 

PART 2:

DATA PROTECTION ACT 1998

 

 

24. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. (Herein referred to as Data Protection Act 1998) (“Exhibit 4”, attached)

 

 

25. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist for the reasons stated herein. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to this alleged agreement to be wholly unwarranted and unlawful.

 

 

26. The Data Protection Act lays down principles of data protection and provides the framework under which data should be collected, stored, processed and shared by a data controller. (s.4 DPA 1998)

 

“4 The data protection principles

(1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.

(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.

(3) Schedule 2 (which applies to all personal data) and Schedule 3 (which applies only to sensitive personal data) set out conditions applying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.

(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.”

 

27. There are 8 principles, as outlined under Part 1, Schedule 1 to the Act; (the principles)

 

“1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

 

2 Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

 

3 Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4 Personal data shall be accurate and, where necessary, kept up to date.

 

5 Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

 

6 Personal data shall be processed in accordance with the rights of data subjects under this Act.

 

7 Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

8 Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.”

 

28. The Claimant will show that the Defendant has not complied with these data protection principles, for the reasons stated herein, as follows;

 

 

DATA PROTECTION PRINCIPLE 1

 

“1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

 

29. The exemptions permitted in paragraph (a) show where the Defendant may invoke its perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are:

 

“1. The data subject has given his consent to the processing.

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

 

30. It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

 

“1. The data subject has given his consent to the processing”

 

31. That consent does not exist, as the alleged agreement is unenforceable under consumer legislation.

 

32. Where the Defendant can show that the Claimant did consent to the processing, the Claimant alternatively argues that such consent was terminated upon termination of the contract.

 

 

33. The Claimant, therefore, puts the Defendant to strict proof of the contractual agreement between the parties in relation to the agreement and, inter alia, to proof of the term allowing the Defendant to store, process or disclose any personal data of the Claimant and to which terms and conditions were included as part of that agreement.

 

 

34. Where it is held, which is denied, that the Claimant did indeed consent to the Defendants terms and conditions, the Claimant will continue to alternatively plead as follows;

 

 

35. It is purported by the Defendant that it was agreed between the parties that the disclosure of personal data in relation to the contract was consented to. The Claimant argues that this consent would extend only to such time as the conclusion of the contract.

 

 

36. The Claimant, therefore, further puts the Defendant to strict proof of the contractual agreement allowing the Defendant to store, process or disclose any personal data of the Claimant beyond the contractual termination period.

 

 

37. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to store, process or disclose any such personal data.

 

 

38. Where it is held that the Defendant can show that the agreement between the parties allowed for the Defendants continued processing of the Claimants data beyond the contractual termination period, the Claimant submits that the enforcement of such terms would be unfair, in that the alleged term (or terms) of the agreement that the Defendant relies on is unfair under the Unfair Terms in Consumer Contracts Regulations 1999, (Regulation 6) and that the Defendant should not be allowed to rely on such an unfair term as part of its defence to the claim. (Regulation 8)

 

 

39. Regulation 5 outlines circumstances in which a contractual term would be unfair;

 

 

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

40. The Defendant is a multi-national corporation. The term regarding the Defendants use of the Claimants data, amongst others, was inserted unilaterally in contract. The contract was pre- and mass- produced and the Claimant had no opportunity to negotiate the clause, or indeed any of the contract provisions.

 

 

41. The Claimant avers that such terms create significant imbalance in the parties’ rights, in the favour of the Defendant, to an excessive degree, as the Defendant is able to determine the length of time such terms are effective, after the termination of the agreement, to its own benefit. At no time did the Claimant grant permission, either expressly or implied, for the defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract. It is the Claimant's contentions that the Defendant’s perceived right to arbitrarily choose to extend the length of that contract without the Claimant's knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999). The defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimant's contention that the defendant is in breach of both the contract itself and the Data Protection Act 1998, by the defendant's continued disclosure of personal data.

 

 

42. The Claimant further avers that such terms are contrary to the requirement of good faith. The terms are intended to have the effect that the Defendant, who has been unable to meet any evidential burden of proving the Claimant is in default of the agreement or any terms of such an agreement, or, where the Defendant can prove such default is unable to show that the terms under which it claims the Claimant is in default are fair under the UTCCR, should not to be allowed to intimidate, harass and effectively blackmail the Claimant into paying monies that he does not have to pay by, for example, threatening to blacklist the credit record of the Claimant in the way it has. Such terms cannot be said to defeat the Defendants business objective. (Director General of Fair Trading V First National Bank [2001] UKHL 52 and [2001] 3 WLR 1297)

 

 

43. Further, schedule 2 of the regulations also includes such clauses, to define examples of unfair clauses, as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

 

“(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract”;

 

“(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

44. The Claimant was not given sufficient opportunity to become acquainted with the contract, the terms and conditions of which were listed in such detail that a reasonable consumer would struggle to understand them. Further, the reading of the terms and conditions was not, at that time, made mandatory when entering in to the alleged agreement with the Defendant. The Claimant submits that he was not aware of the contractual basis, or the terms and conditions applicable to that contract, at the time of contract with the Defendant as a result. The Claimant was also not given the opportunity to individually negotiate such terms, lending additional support to the unfairness of the terms relied on by the Defendant.

 

 

45. Further, the Defendant is unable to rely on Regulation 6(2)(a), in that the sharing of such data is not part of the definition of the main subject matter of the contract, or on Regulation 6(2)(b), in that the sharing of such data is not a term relating to the adequacy of the price or remuneration, as against the goods or services supplied in exchange, to avoid the assessment of fairness of such terms.

 

 

46. As a result, the Claimant will aver that any term, whether referred to by the Defendant at this time or not, allowing the Defendant to continue processing the Claimants data would be unfair as a result of the argument contained herein and that such terms should not be binding on the Claimant as a result. (Regulation 8(1))

 

47. The Claimant has further advised the Defendant of withdrawal of consent, in any case, in his s.10/s.12 DPA Notice. (“Exhibit 4”, attached)

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

48. For both (a) and (b), there is no contract in existence at this time.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

49. According to the Information Commissioners Office (Information Commissioners Office), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

50. The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

 

51. With reference to the Information Commissioners Office again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

 

52. So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of the Claimants data at its discretion, nor any exemption. The Claimant can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence at this time.

 

53. Further, Part 2 of Schedule 1 provides guidance on the interpretation of the principles in Part 1 of that Schedule. In relation to Principle 1, the guidance is;

 

 

“1 (1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.

(2) Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who—

(a) is authorised by or under any enactment to supply it, or

(b) is required to supply it by or under any enactment or by any convention or other instrument imposing an international obligation on the United Kingdom.

 

2 (1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless—

(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and

(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).

(2) In sub-paragraph (1)(b) “the relevant time” means—

(a) the time when the data controller first processes the data, or

(b) in a case where at that time disclosure to a third party within a reasonable period is envisaged—

(i) if the data are in fact disclosed to such a person within that period, the time when the data are first disclosed,

(ii) if within that period the data controller becomes, or ought to become, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or

(iii) in any other case, the end of that period.

(3) The information referred to in sub-paragraph (1) is as follows, namely—

(a) the identity of the data controller,

(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,

© the purpose or purposes for which the data are intended to be processed, and

(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

 

3 (1) Paragraph 2(1)(b) does not apply where either of the primary conditions in sub-paragraph (2), together with such further conditions as may be prescribed by the Secretary of State by order, are met.

(2) The primary conditions referred to in sub-paragraph (1) are—

(a) that the provision of that information would involve a disproportionate effort, or

(b) that the recording of the information to be contained in the data by, or the disclosure of the data by, the data controller is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

4 (1) Personal data which contain a general identifier falling within a description prescribed by the Secretary of State by order are not to be treated as processed fairly and lawfully unless they are processed in compliance with any conditions so prescribed in relation to general identifiers of that description.

(2) In sub-paragraph (1) “a general identifier” means any identifier (such as, for example, a number or code used for identification purposes) which—

(a) relates to an individual, and

(b) forms part of a set of similar identifiers which is of general application.

 

54. Paragraph 1(1) applies to the current proceedings, as the Defendant is unable to show that the Claimant consented to the sharing of his data in the way that it has been shared, for the reasons stated herein. Further, as the Claimant has shown that the data shared is inaccurate, the Claimant submits that, under paragraph 1(1), his data has not been processed fairly.

 

 

55. The Claimant avers that this amounts to “deceiving” or “misleading” of the Claimant, as he was not made aware of the way in which his data was to be processed, as that was not disclosed to him.

 

 

56. As required by Paragraph 2, therefore, the Claimant puts the Defendant to strict proof that the Defendant did provide details, as outlined in paragraph 1(3), as to how the Claimants data was to be processed within the “relevant time” (Paragraph 2(2)).

 

 

57. Where the Defendant cannot show that the details of how the Claimants data was to be used was disclosed to him within the relevant time, paragraph 2(1) renders such processing as being unfair.

 

 

58. Paragraph 1(2) does not apply to these proceedings, as the data was not collected in the method outlined in that paragraph.

 

 

59. Where the Defendants processing of the Claimants data is unfair under the first principle of the Act, the Claimant will aver that the remaining principles become irrelevant to the current proceedings, as such processing is unfair under the first principle and should be deemed unfair under the Act, regardless of the remaining principles, as a result.

 

 

60. In the alternative to that stated above, where it is held that the Defendants processing of the Claimants data is lawful under the first principle, (which is denied for the reasons herein) the Claimant will now consider principle 2, as follows;

 

DATA PROTECTION PRINCIPLE 2

 

 

61. Principle 2 of the Data Protection Act, states:

 

 

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

 

62. The Claimant wishes to emphasise the term "specified and lawful purposes", and submits that this should be viewed as meaning “those specified within the contract” and no more, and also emphasises the term "shall not be further processed".

 

 

63. Further, as the Claimant has shown that the data shared is inaccurate, the Claimant submits that his data has not been processed fairly.

 

 

64. Where the Defendant can show that the Claimant did consent, (which is denied) it cannot rely on that consent as the terms under which consent was originally granted are unfair under the Unfair Terms in Consumer Contracts Regulations, (1999) for the reasons stated herein.

 

 

65. Where it is held that the terms under which consent was granted are not unfair under the regulations, (which is also denied), and where the Defendant can show that the Claimant did indeed consent to this sharing of his data and that such consent can exist beyond the contractual termination period, (which is also denied) the Claimant submits that consent to this sharing was revoked by the issuance of a Statutory Notice to the Defendant in a letter dated 1 October 2007, under s.10 and s.12 of the 1998 Act. (“Exhibit 4”, attached) Such revocation of consent would render any continued processing of the Claimants data unlawful, as a result of the Defendants failure to comply with that Notice.

 

 

66. Any sharing of the Claimants data, as a result, would therefore not be “lawful” as required by principle 2 of the 1998 Act.

 

67. In the alternative to that stated above, where it is held that the Defendants processing of the Claimants data is lawful under the second principle, (which is denied for the reasons herein) the Claimant will now consider principle 3, 4 and 5, as follows;

 

 

DATA PROTECTION PRINCIPLE 3, 4 AND 5

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

68. The claimant asserts therefore that this Default amounts to a material breach of the third, fourth and fifth Principles of The Data Protection Act 1998, which means any sharing of the Claimants data, as a result, would therefore not be “lawful”. The Claimant repeats its submissions at paragraphs 16-23, above.

 

69. In the alternative to that stated above, where it is held that the Defendants processing of the Claimants data is lawful under the third, fourth and fifth principle, (which is denied for the reasons herein) the Claimant will now consider the principle 6, as follows;

 

DATA PROTECTION PRINCIPLE 6

 

 

“6 Personal data shall be processed in accordance with the rights of data subjects under this Act”

 

70. Guidance on the interpretation of principle 6, from part 2 of Schedule 1 states;

 

 

“8A person is to be regarded as contravening the sixth principle if, but only if—

(a)he contravenes section 7 by failing to supply information in accordance with that section,

(b)he contravenes section 10 by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section,

©he contravenes section 11 by failing to comply with a notice given under subsection (1) of that section, or

(d)he contravenes section 12 by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section.”

 

 

71. The Defendant has failed to comply with a Statutory Notice under s.10 and s.12, so falls foul of paragraph 8(b) and 8(d).

 

 

72. The claimant asserts therefore that this failure amounts to a material breach of the sixth principle of the Data Protection Act 1998, which means any sharing of the Claimants data, as a result, would therefore not be “lawful”.

 

OVERVIEW OF THE DATA PROTECTION ACT ISSUES

 

73. The Claimant, after correspondance with the Defendant, is aware that it claims that it has a “legal right” to maintain this type of adverse entry for up to six years. When challenged, it is unable to quote the exact Statute that includes this so-called “legal right” – it, in fact, remains remarkably quiet when questioned about this. Only after insistence of disclosure does the Defendant eventually concede that, whilst it has no statutory right, it is “standard industry practice” but it added that they are “allowed to by Law”. After further challenges, it continued to insist that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, for the reasons stated herein, so reliance on any contract should fail under the DPA 1998.

 

74. After scrutiny of relevant legislation, it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject. Further, while the Defendant may be under a duty to maintain records, that duty does not extend to continuing to process the Claimants data beyond cessation of the contractual termination period.

 

75. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

 

“10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.”

 

 

76. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

 

“10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or;

(b)in such other cases as may be prescribed by the Secretary of State by order.”

 

 

77. With regards paragraph (a), the Claimant repeats paragraphs 29-60, above.

 

 

78. To paragraph (b), the Claimant can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

 

79. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and substantial resulting distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

PART 3:

 

 

REPLY TO THE DEFENDANTS DEFENCE

 

 

80. The Defendant submits a complete defence to the claim. In reply to the Defendants Defence statement, the Claimant will plead as follows. (References in this part are references to the numbered paragraphs of the Defendants Defence statement)

 

81. Paragraph 1 is denied, for the reasons stated in this document.

 

82. Paragraph 2 is denied, in that such detail is outside of the knowledge of the Claimant, however, the Defendant is put to strict proof of the relevance of that paragraph to these proceedings.

 

83. Paragraph 3 is admitted.

 

84. Paragraph 4 is admitted, save for where that;

a) Such an omission does have an effect on the enforceability of the agreement, under the Consumer Credit Act 1974, for the reasons stated in the particulars of claim; and

b) The current enforceability of the agreement itself is irrelevant to these proceedings, as the Defendant has refunded the amount of charges (plus contractual interest applied to those charges) to the account (“Exhibit 10”, attached) and the Claimant has cleared the remaining balance outstanding under the agreement, having no intention of further drawing against the agreement; and

c) The Defendant has already sought to enforce the agreement by issuing allegedly a Default Notice previously, as outlined in this document, such action amounting to a form of enforcement of that agreement. The Claimant will seek to continue these proceedings on that basis, so calls in to question the past enforceability of the agreement in those circumstances, such matters being central to the Claimants dispute with the Defendant in its Defaulting of the account and the registering of such information with third party credit reference agencies, as a result.

 

The Claimant, therefore, puts the Defendant to strict proof of its denial at paragraph 4.

 

85. Paragraph 5 is denied, in that the Claimant has suffered prejudice as a result of the Defendants omission, as outlined in this document and at paragraph 84, above, and puts the Defendant to strict proof of the lack of prejudice caused to the Claimant. Further more, the Defendant is well aware of this level of prejudice, as the Claimant has corresponded with it regarding this prejudice on multiple occasions, should it decide to check its records again.

 

86. Paragraph 6 is denied, for the reasons stated in this document and outlined at paragraph 84 above. The Claimants obligations (moral, legal, or otherwise) under the agreement have been discharged as a result of the submission at paragraph 84, yet the Defendant continues to process and share his data under the agreement. The Claimant puts the Defendant to strict proof that it had a fully enforceable agreement and that such an agreement was lawfully and accurately Defaulted, as a result.

 

87. Paragraph 7 is denied. No admission is made as to the inclusion of such a clause in to the agreement. Further more, where the Defendant can show such a clause, the Claimant makes reference to its submissions at paragraph 84, above, and to the particulars of claim, in that the agreement has now ended and that the continued processing or sharing of the Claimants data is unlawful as a result.

 

Paragraph 8 is denied, in that the Defendant has unlawfully Defaulted the Claimant for the reasons stated in the particulars of claim and continues to share such inaccurate information with third parties. As the Defaulting of the Claimant is unlawful, and, therefore, inaccurate, the opinion of the Information Commissioner’s Office (Information Commissioners Office’s) is that the sharing of such information should be ceased.

 

The Defendant relies on a release from the Information Commissioners’ Office (Information Commissioners Office) in relation to the Claimants consent to the processing of his data. The Claimant submits that this release bears no relation on the current proceedings, for the following reasons;

a. The release outlines the Information Commissioners Office’s view on data sharing. The Information Commissioners Office gives “opinions” on how the Data Protection Act applies – such an opinion may be incorrect and is not binding in the current proceedings, as it has no basis in law and gives no legal, binding authority for the basis of the opinion.

b. The opinion expressed by the Information Commissioners Office in this release relates to the ability of credit reference agencies to share data – the question in these proceedings is not whether the credit reference agency is entitled to share such data, as provided to it by the Defendant, but is as to whether the Defendant itself is entitled to share such data, either with a credit reference agency or at all, under the contract.

 

 

The Claimant puts the Defendant to strict proof of the legal basis up on which this opinion is stated and up on which it relies on to continue processing the data of the Claimant as a result of the argument contained herein. Where the Defendant is unable to show this legal basis, it is unable to rely on the fact that the consent of the Claimant is not required to continue such sharing.

 

In the alternative, where it is held, that the Information Commissioners Office’s view in this document applies to these proceedings and that the Court considers such view valid in these circumstances, which is denied, the Claimant will plead as follows;

 

The Information Commissioners Office, from guidance in another document entitled “Data Protection Act: Help! How can I stop them processing my personal information?” (“Exhibit 6”, attached) is of the view that where consent is required for continued processing under the Data Protection Act, such consent can be revoked. The Claimant submits that this guidance is in conflict with the guidance relied on by the Defendant and would suggest to the Court that such advice should have the correct level of weight applied having regard to that level of conflict. The Claimant further submits that, as the Information Commissioners Office guidance is not binding on the Court in this case, that the Court consider the arguments of the parties and decide the issues itself, without reference to this guidance, where it deems that appropriate.

 

 

As the Defendant is relying on only selected parts of the Information Commissioners Office view on this subject, the Claimant further submits that the Defendant is attempting to frustrate proceedings and abuse the Courts process by attempting to rely on such partial opinion, in the way that is has, in its defence.

 

 

The Claimant will also refer to the Information Commissioners Office’s Data Protection Technical Guidance on filing defaults with credit reference agencies, (“Exhibit 7”, attached) dated 2 August 2007 and supersedes that view relied on by the Defendant;

 

“3… It is difficult to see how a record which is inaccurate could be adequate for the purpose for which it is held. A record which has been kept for longer than is necessary may well be excessive and irrelevant for that purpose and a record which is not up to date is unlikely to be relevant to, or reflect adequately, the current position. The record of a default lodged with a credit reference agency provides a reliable reflection of the individual’s credit standing to other lenders. If a record is unreliable or based on non-standard criteria, it is unlikely to be meaningful to another lender. In these circumstances it would be unfair for a lender to process the data to assess an individual’s credit worthiness.”

 

The Defendant is unable to fully substantiate the default information it is sharing with credit reference agencies for the reasons outlined in this statement. The Defendant is continuing to, either, process that data after the termination of the agreement, or, process that data after the Claimants consent has been revoked – this is termed as “excessive and irrelevant” by the Information Commissioners Office. The Defendant is also unable to substantiate the contractual agreement, the terms originally agreed to and the actual default of the Claimant under that agreement. Where the Defendant can not substantiate such information, it is unable to show that such default is not unfair under the Unfair Terms in Consumer Contract Regulations. The Claimant submits this makes the Defendants records “unreliable” in these circumstances.

 

“9 A ‘default’ can be said to occur as soon as a borrower fails to meet the terms of their credit arrangement. However, adopting this definition for credit referencing purposes would create difficulties since it is accepted that not all these defaults should be reported, for example, where weekly payments are late but are quickly remedied”

 

As highlighted, the Defendant is unable to show that the Claimant has defaulted due to failing to meet the terms of the agreement – no such breach of agreement can be said to exist. This paragraph also shows that the Defendant does have “discretion” in deciding whether to process the Claimants information in that way and that it is not, as it suggests, legally obliged to do so.

 

 

“16 Flexibility

We recognise there will be some circumstances where a lender may feel justified in filing a default, or withholding a report…

 

These decisions should be made on a case-by-case basis. When these decisions are made, lenders should consider whether, if a default record is filed or withheld, it would be likely to help or mislead another lender in their credit decision about the individual concerned. A general company policy to file defaults as a matter of routine outside the [information Commissioners Office’s recommended] parameters would not be acceptable…”

 

The Claimants view is that the Defendant has discretion in deciding whether to share default information with third party credit reference agencies. The Information Commissioners Office view supports this. The Claimant further avers that the Defendant should not be processing his data in that way, due to the dispute he has with it as outlined herein. The Information Commissioners Office also recognises that such inaccurate reporting does indeed have a negative effect on credit decisions taken regarding individuals, such as the Claimant, that are subject to that inaccurate reporting.

 

“32 Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served… This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all”

 

“33 A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing”

 

“39 Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement”.

 

The Defendant has failed to provide evidence of the Claimants agreement with it, or that any agreement exists and is unable to show that it communicated the method of filing information regarding the Claimant as outlined herein – this is against the requirements of Schedule 1, Part 2, Paragraphs 1-4, Data Protection Act 1998 in the Information Commissioners Office’s view. The Defendant has also failed to show that it did comply with the requirement of providing a notice of intention of filing a default, which is a breach of the requirement stated here.

 

“43 If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer”

 

The Claimant submits that the Defendant is unable to substantiate the data it is sharing with third parties, such sharing having a negative effect on credit decisions made regarding the Claimant. The Claimant avers, therefore, that relying on the need to share information with credit reference agencies, on the basis of a need to share such data for credit control or credit referencing purposes, is inadequate for that use as it is inaccurate.

 

The Claimant denies that the Defendant has acted in accordance with that advice and accordingly puts the Defendant to strict proof of such compliance.

 

88. Paragraph 9 is denied, in that the Defendant has denied the Claimants opinion on the application of the default charges applied to the account, but has failed to meet the strict standard of proof of placed on it by the Claimant.

 

If the charges are a genuine pre-estimate of the cost to the Defendant of dealing with the Claimants account, or they are reasonable in the circumstances, the Claimant further puts the Defendant to strict proof of those submissions, by fully disclosing how these pre-estimates of costs were calculated and to the actual cost of dealing with the Claimants account at each time such a charge was applied.

 

Without this level of disclosure, or alternative proof of the lawfulness and reasonableness of these charges being provided, the Claimant respectfully submits that the Defendant is unable to rely on its own submissions in this paragraph.

 

While the issue of the actual amount of these charges is no longer relevant to these proceedings, in that the Defendant has refunded those changes plus contractual interest applied to them, (“Exhibit 10”, attached) the Claimant submits that the issue of the lawfulness, fairness and reasonableness of the historical application of these charges is still relevant, insofar as this needs to be considered part of the Claimants argument that the Defaulting of the Claimant is unlawful and inaccurate as a result of the application of those charges, as outlined in the particulars of claim. The Defendant, it seems, apparently believes that it can avoid the test of lawfulness and reasonableness laid down by the Claimant, by refunding the charges applied, then attempting to seek further enforcement of the agreement (despite it's submission in its amended defence that it is not seeking enforcement at this time - “Exhibit 11”, attached) in an attempt to alter its position in these proceedings prior to the Court considering the Claimants submissions. The Claimant invites the Court to see the Defendants attempts to mislead the Court as exactly that and to ensure that the Defendant is held to the test of lawfulness and reasonableness laid down by the Claimant, despite these attempts.

 

The Claimant, therefore, encourages the Defendant to disclose this level of detail, to be included in its submissions, as ordered by the Court.

 

89. Paragraph 10 is denied in full, for the reasons stated in the particulars of claim and the further submissions made in this statement.

 

 

PART 4:

CONCLUSION

 

 

90. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

 

91. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

 

92. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

 

93. At no time did the Claimant grant permission, either expressly or implied, for the defendant to abritrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract.

 

94. It is the Claimant's contention that the defendant's perceived right to abritrarily choose to extend the length of that contract without the Claimant's knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999).

 

95. The defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimant's contention that the defendant is in breach of both the contract itself and the Data Protection Act 1998, by the defendant's continued disclosure of personal data.

 

 

96. Additionally, the claimant requests an order from the Court under s.14(1) (for the erasure of the incorrect information, held by the Defendant) and s.14(3) (for the blocking or erasure of the data passed to Credit Reference Agencies, by the Defendant) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage to the Claimant;

 

“14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.”

 

 

97. The Claimant further claims the Court fees of £140.

 

 

98. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

98.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

98.2. An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

98.3. Costs, at the discretion of the Court

 

 

 

Statement of truth;

I, the Claimant, believe all facts stated to be true.

Signed,

 

 

car2403.

Dated this, the 15th day of June, 2008.

 

There's some time for comments/opinions/suggestions for improvement, but I think I've spent far too long on this already, so I won't be making changes unless I get some input on this thread. It will be deliveried to GE by the 20th, so all input before that is appreciated in advance.

 

I'm now nibbling at my finger nails to see GE's submission, which I should also receive by 20th. I'm particularly interested in seeing their breakdown of the actual pound amounts that they incurred each time I "paid late", which is specifically mentioned in my reply to their defence. (The original document served on them on 4 June, which is restated here, just in case they missed it)

[car2403]

Skeleton argument going off today...

[majorclanger100]

Hi Car2403,

 

Just popping in to say what a fantastic thread and best wishes for a favourable outcome. I am on the edge of my seat with this one....

 

I'm just about to go down the same path with MBNA & Arrow Global so do you mind if I nick bits of your POCs and witness statements, seeing as they are so professional?!

 

Many thanks and good luck

 

MC

[car2403]

Just popping in to say what a fantastic thread and best wishes for a favourable outcome. I am on the edge of my seat with this one....

 

Welcome to the mad house!

 

I'm just about to go down the same path with MBNA & Arrow Global so do you mind if I nick bits of your POCs and witness statements, seeing as they are so professional?!

 

Go for it, Batman!

[majorclanger100]

:grin::grin::grin: Thanks Car!!!

[car2403]

I'm now nibbling at my finger nails to see GE's submission, which I should also receive by 20th. I'm particularly interested in seeing their breakdown of the actual pound amounts that they incurred each time I "paid late", which is specifically mentioned in my reply to their defence. (The original document served on them on 4 June, which is restated here, just in case they missed it)

 

I now have no fingers left, (I'm writing this with speech recognition software, before you ask!) as GE Money have failed to comply with the first set of directions from the Court. They should have filed their submissions with me by 20th June - they ain't!

 

Not to worry, as the next set of directions, (which clearly didn't override the first set, BTW) state they need to serve their submissions on me and the Court by 11th July - that's one week away, GE, if you're watching

 

All I have to do is reprint what I sent to them on 20 June and send that to the Court by 11 July, then wait out the final hearing date of 25 July, when GE will be forced to show the actual amounts they incurred when they applied the default charges to the account.

 

Not long to wait now, then...

 

[IdaInFife]

Just subbing and as may have to go down similar path.

 

Well done so far and with you adding ur bits i can understand whats going on and help others like me

 

 

Good Luck

 

 

idax

[car2403]

They always try to overly complicate matters, Ida - it's their way of confusing you with jargon and legal mumbo-jumbo, in the hope that you will curl up and die.

 

It's obvious to me that they don't really know how to behave when you offer a decent defence, (or go the extra mile and take action against them, such as I have, rather than waiting for them to take it against you) that much is evident in all my threads.

 

"Knowledge is power" - that has never been more apt than when looking through CAG.

 

If you are prepared to put some hard work in to understand the, actually quite simple, legal arguments, you are on a winner, IMHO.

 

Now all I need to do is wait these next 2 weeks out, along with the rest of you, to see how this one turns out.

 

Interesting, isn't it?

[Goldlady]

Car are you coming to the Newcastle meet? There is a thread about it somewhere if you haven't found it yet? Aug 16th.

[IdaInFife]

Too true.

 

Next and JD willaims cannot produce a CCA but won't remove any details on my CF even tho 1 account i have never even used as I didn't req it. nO issues with balance or payment or charges (oredered and paid in full at time of order). Why don't they just remove the blooming stuff. It's no skin of their nose.

 

Once i have dealt with them then BG is next. I have a default for ...wait for it......... £31 than I didn't even know was due. As soon i knew about it 2 weeks ago, i paid it but will kick them around until they remove it!!!!

 

Why make life so hard???

 

Just trying to clean up my CF as hoping to apply for a mortgage next year as my bubba is starting school after holidays and will be working full time and my unpaid ccj (which i could get removed but due to drop off in dec) will disappear this year.

 

 

Why oh why oh why

 

 

watching you with interest :o

 

 

ida x

[car2403]

Car are you coming to the Newcastle meet? There is a thread about it somewhere if you haven't found it yet? Aug 16th.

 

Typical! I'm working away right now and won't be back for 16th.

[Goldlady]

Oh shame, but there will no doubt be another one. It is 16th August not July BTW - are you away all that time?

[car2403]

Oh shame, but there will no doubt be another one. It is 16th August not July BTW - are you away all that time?

 

Yup - only back 1 day a week until October

[car2403]

I now have no fingers left, (I'm writing this with speech recognition software, before you ask!) as GE Money have failed to comply with the first set of directions from the Court. They should have filed their submissions with me by 20th June - they ain't!

 

Not to worry, as the next set of directions, (which clearly didn't override the first set, BTW) state they need to serve their submissions on me and the Court by 11th July - that's one week away, GE, if you're watching

 

All I have to do is reprint what I sent to them on 20 June and send that to the Court by 11 July, then wait out the final hearing date of 25 July, when GE will be forced to show the actual amounts they incurred when they applied the default charges to the account.

 

Not long to wait now, then...

 

 

Despite me fully complying with all Court Orders, GE now have failed to comply in return. This just isn't acceptable.

 

They now have failed to pre-disclose their case in defence of my claim, which they should have done before 20 July. They have also failed to pre-disclose the documents they intend to rely on at the trial, which they should have done before 11 July.

 

Tsk, tsk, GE...

 

I think there'll be a nice little email going of to Salans today, with a scanned copy of all Court Orders they have failed to comply with, seeking an explanation and asking them to comply within 7 days.

 

The hearing is next Friday - 25 July.

 

I won't be bothering contacting the Court about all this. I'll just turn up on the day, ask the Court to award Judgment for me, as they haven't complied with the Courts orders, and pointing out that they failed to comply and had several of these nudge letters from me. There can be no excuse for not complying. I also don't want the Court to consider re-ordering disclosure directions, especially given GE's dispicable behaviour in this case so far, as that will extend the amount of time it takes to deal with all this.

 

Ho hum...

 

[car2403]

I think there'll be a nice little email going of to Salans today, with a scanned copy of all Court Orders they have failed to comply with, seeking an explanation and asking them to comply within 7 days.

 

The hearing is next Friday - 25 July.

 

Still nothing from GE yet, so they haven't posted what they should have to me - I'm not surprised.

 

I don't intend to let up on them this week, so there's now a statement of my costs incurred in bringing/litigating this claim against them going off Special Delivery. Costs total £275, which is a modest amount, IMHO, to claim as a LIP. Add that amount to the £1k damages, (relying on the Kpohraror case) plus Court costs of £150, and the claim now stands at £1,425. All this because GE won't negotiate on the Default removal issues.

 

Remember that they refunded the charges applied to the account, in response to me bringing this claim against them, then tried to Default me again, without the charges being included in the Default balance. Very sneaky! It shows what lengths they will go to, doesn't it? Good thing I was on to them and paid the balance off within the timeframe allowed by the Default Notice! I can't wait to see how they rely on their amended defence, (which they will have to, as they haven't submitted any documents under the Courts Directions, should they even turn up on Friday!) on the basis that the original Default was accurate since they've virtually agreed that it wasn't by their actions - but still haven't removed the Default!

 

In fact, while I was working my schedule of costs out, I've sent them 5 offers of settlement since the claim was started. All of which have more beneficial terms for them than I'm claiming. I'm sure the Judge will have to agree that I've been more than lenient on this one!

 

Roll on Friday, then...

[car2403]

Roll on Friday, then...

 

Well, Friday is here, so I'm off to Court in a tick! :o

 

I can't wait really - excited to see what happens now they seem to have blown their own case apart!

[mcuth]

Good luck matey - hope all goes well - can't wait to see your update later

 

Cheers

Michael

[car2403]

Okey dokey, I'm back. Took 2 hours, but here's the outcome;

 

The Judge summed it up like this;

 

The agreement provided by GE Money was just the first page which he hauled them over the coals about - "don't you know CPR requires original documentation to be produced at Court?" - the solicitor rumbled on about how GE can't store originals and this is a certified copy, which has the signatures on. The Judge asked where the rest of it was - the reply was that this was page 1 of 4 and that the original wasn't "reproduceable for Court", (which means they don't have it) so they produced a newer one, that was a completely different layout to mine and tried to pass it off as being "similar". I asked the question and they couldn't ask - the Judge just raised an eyebrow when they admitted they can't provide the other 3 pages.

 

Looks promising at this stage?

 

The Judge then said, "putting all this to one side", (you what?) that the agreement was improperly executed because it wasn't dated, so it was unenforceable under the CCA. He added that a Court Order would be needed to enforce the agreement, even though GE hadn't applied for one as the weren't seeking to enforce it, in Court. In his opinion, as I had made payments under the agreeement that met with it's terms, despite my argument that I was prejudiced by enforcement, (unlawful Default - see more later - and charges applied, etc) the Court would have Ordered the agreement be enforced if they were asked to do so.

 

Not so promising now?

 

Looking at the Default Notice, he decided a Default Notice is not a form of enforcement under the CCA - it's a precursor to seeking enforcement, but doesn't amount to an enforcement action, despite my argument. In any case, the default exists under the agreement, despite it being unenforceable without a Court Order, as the contract still exists, so GE was right to issue the Default Notice.

 

On a slippery slope now, right?

 

Looking at the charges applied, the question of whether they are penalties was dismissed because of the OFT Test Case on Bank Charges. The Court wasn't prepared to question the fairness of the charges, as that was part of the "price" for applying them, which was agreed in the original agreement. This despite the terms relating to charges being on one of the "missing" pages - "GE wouldn't have made such a mistake in constructing their agreements", the Judge mentioned. When I mentioned that the charges were unfair because I wasn't aware of them, that was dismissed as well. He did admit that the fairness of the amount of the charge could be questioned, but that would still have to be decided - he mentioned that the OFT uses £12 as a reasonable fee, so £15 probably would also be reasonable. Despite all this, though, he did decide that there was a possibility that the charges were unfair, so the Judgment takes that in to account.

 

Light at the end of the tunnel?

 

Back to the Default Notice and he agreed that Woodchester -v- Swaine applied and that the balance outstanding was inaccurate, because of the fairness test above. He did say that the CCA doesn't require the balance to be stated, and that the default amount to be repaid was stated, but as the fairness test either couldn't be decided and that there was only a possibility that the charges were unfair, that he couldn't state with any certainty that the default amount provided was inaccurate. If he could do so, he couldn't decide if they were "de minumus", because the test of fairness couldn't be applied completely. (Pending the outcome of the OFT TC) All this throws doubt on whether the Default Notice was indeed invalid.

 

The Default was shared with the CRA's - including the Default amount that was in question. It could be argued that this information is inaccurate under the DPA, as we can't decide if it's correct or not yet. At this point, he indicated that he would provide an order to remove the data from the CRA, that GE could continue to process internally and that the claim for damages would be dismissed, (this despite me having letters from my mortgage company stating "we've reviewed your credit file and put your rate up by 2% because of adverse credit", in effect!) but he would only do that if GE would agree - GE didn't agree, so he decided not to do that!

 

As all sums had been repaid, so nothing was due, and all charges/interest applied on them had been refunded, with the balance being zero, he decide to dismiss the claim completely.

 

He did say that the fact I didn't have evidence of the CRA entry for the Default amount didn't help me, but that wouldn't have won me the case neither.

 

As the Court wasn't satisfied that the data was inaccurate, he couldn't order removal from the CRA file without GE's consent - effectively, s.14(1) gives the Judge discretion to decide if the data should be removed or not - and he decided it didn't, because he wasn't satisfied that it was wrong. As there was only a possibility that the charges were unfair, there was only a possibility that the data was inaccurate, which isn't enough.

 

So...

 

I LOST!

 

There be no order as to costs.

 

I'm not reeling from this, as it's been a massive learning curve - along with my other thread.

 

I'll post my thoughts up over the weekend, but I want to get your views first.

[knoxvillain]

unlucky, I learned the same learning curve when I took my ex-landlord to my local Sheriff Court. Not encouraging for the rest of us hoping to get defaults removed.

 

At least you didn't get hit for costs? I don't understand why banks would rather pay solicitors than just remove a default, I could understand with the bank charges because they were having to pay out lots of money but it makes no difference to the bank whether the default is there or not.

Edited July 25, 2008 by knoxvillain