car2403 -v- o2 (& Wescot DCA)(Default removal)

[Nick W]

Here is a stupid question - wont they just apply to set aside Judgment in Default?

 

Nick

[car2403]

They could, Nick, but there are only very specific cases where the Court MUST set aside Judgment - this is contained within CPR Part 13 Practise Direction 13.2;

 

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –

(a)in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b)in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

©the whole of the claim was satisfied before judgment was entered.

 

From what I'm reading from this, 13.2 doesn't apply because no Acknowledgement of Service was received and no Defence was entered.

 

Circumstances where the Court MAY set aside or vary Judgment are also specific, but not so specific as above, under CPR Part 13 Practise Direction 13.3;

 

13.3 (1)In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a)the defendant has a real prospect of successfully defending the claim; or

(b)it appears to the court that there is some other good reason why –

(i)the judgment should be set aside or varied; or

(ii)the defendant should be allowed to defend the claim.

(2)In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

13.3 may apply if O2 submit an Application Notice to have Judgment by Default set aside or varied - but they need to apply "promptly". Judgment was entered on 18 December, so that is 8 working days ago in my calculations. In that time, they've had a letter from me asking for payment/removal of Default dated 21 December and they haven't responded. Of course it's entirely possible that they've chosen to ignore me completely - which is what got them in to this position in the first place - and have submitted an Application Notice to the Court without serving a copy on me. (I don't think they HAVE to, but they probably SHOULD have)

 

All this means they can apply to have Judgment set aside or varied, (probably will be applying for a set aside to allow the claim to be heard properly) but they will need a damn good reason as to why they didn't Acknowledge or Defend in time. I can't see what a "good reason" would be in this case - I'm presuming I'll be invited to an Application hearing to discuss it, where I can show everything I would have had a full hearing gone ahead and show that they had little chance of Defending completely anyway.

 

The other thing that can happen is they don't bother applying to set aside and I'm left in the position I'm in now of trying to enforce my claim against them. Getting the cash shouldn't be a problem, as I can send the bailiffs in if they don't pay up - (although that has it's own issues - see my Barclays charges claim thread to see what I mean) it will be enforcing their removal of the Default (which was the whole point of my claim in the first place) that could prove difficult. Either way, it's going to cost me MORE money to get the Court to do anything about it!

 

Hey, I've just had another thought on how to get the £££'s they owe me... I could sell the debt to a DCA and get them to collect on it! I'm sure Wescot will be up for it, as they know exactly how to collect on a "legitimately owned O2 debt" as they are VERY experienced at it, from what I've seen!

 

 

Bring it on O2...

 

[Nick W]

Hi

 

You are of course correct with regards to CPR 13.

 

However, as a civil litigator, I have found that DJ's are easily pursuaded when it comes to JSA. All needs to be shown is that they may succeed or there is a good reason why it should be set aside.

 

I agree, that the N244 needs to be filed promptly, however, again from experience I have known this to be done a year later (albeit it was a question of valid service).

 

I agree that it doesnt go in their favour why they didnt send an AOS and have delayed in an application.

 

If you are going to send Baliff's in and this is the best option - DONT use the Warrant of Execution. Court Baliff's can be fobbed off fairly easily.

 

I use John Marsten & Co - as your claim is for over (I think £600), you can get a High Court writ.

 

They go in WITHOUT notice (unlike Court Bailiff) and they dont take ANY excuses............

 

I think its worth getting it transferred up to HC.

 

Let me know how it goes!

 

Nick

[car2403]

Thanks for the helpful advice Nick.

 

I have 4 claims to enforce against them totalling £2,390 (along with 2 x Default removals) so that may be an option - I'll see what happens over the next few weeks.

[wyverne]

Thanks Paintball, but hold your congratulations until the Defaults are removed and I've been paid the amount awarded by the Court...

 

 

This is very interesting i'll be following with interest

[tifo]

can i ask car, did you issue the claims on default removal and DPA alone, as i have the same to claim from Lowell but i have been told "not in small claim" and also that compensation for a default must be in addition to a claim for something else, not on its own?

[car2403]

There were 4 claims - 2 for Data Protection Act S.A.R - (Subject Access Request) enforcement (which they still haven't sent yet, BTW!) and 2 for Default removal. (1 of each for myself and my other half)

 

You can see both sets of POC here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca.html#post1237658

 

I'm not sure where "not in small claim" comes from, as it's a pretty straightforward claim actually and only valued at £1,000, so should be allocated to the small claims track from what I've seen? I didn't include any other issue in the POC.

[Paintball]

Thanks Paintball, but hold your congratulations until the Defaults are removed and I've been paid the amount awarded by the Court...

 

 

 

OK ... here's hoping

[car2403]

Rang the Court today - 27th day since Judgment was entered!

 

O2 has asked for copies of all 4 claim forms from the Court on 4th Jan, but hasn't been in touch since.

 

Tomorrow is the 28th day since Judgment was entered, which is interesting;

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/99563-got-judgment-how-get.html

[orfoster]

Wow that is interesting, they don't seem to be in a hurry with anything do they.

 

My claim has until the 21st for them to respond and they haven't as of yet. Fingers Crossed.

[Nick W]

I really would consider getting your Judgment transferred up to the High Court and then getting the HC Baliffs in.

 

They dont give any warning or take any excuses......

 

Nick

[car2403]

I really would consider getting your Judgment transferred up to the High Court and then getting the HC Baliffs in.

 

They dont give any warning or take any excuses......

 

Nick

 

How do I do that now that Judgment has been entered by a County Court, Nick?

 

What's the costs?

[Nick W]

Ok - it will cost you £50 (unless you are exempt) to transfer up to the High Court.

 

You can either do this yourself at the County Court or get someone else to do the paperwork (this is free service).

 

You need High Court Enforcement Officers to execute it:

 

John Marston & Co

 

On the home page it says:

 

If you have a judgment over £600.00 use our online transfer up service.

 

They do it for you, take a day or two then they send an agent in without notice.

 

They dont take any excuses (unlike Court Baliffs) and its cheaper too. I think warrent execution at County is £55.

 

Keep us updated!

 

Nick

[car2403]

Ok - it will cost you £50 (unless you are exempt) to transfer up to the High Court.

 

You can either do this yourself at the County Court or get someone else to do the paperwork (this is free service).

 

You need High Court Enforcement Officers to execute it:

 

John Marston & Co

 

On the home page it says:

 

If you have a judgment over £600.00 use our online transfer up service.

 

They do it for you, take a day or two then they send an agent in without notice.

 

They dont take any excuses (unlike Court Baliffs) and its cheaper too. I think warrent execution at County is £55.

 

Keep us updated!

 

Nick

 

Hmmm... very interesting...

 

If only I'd know about this when I'd dealt with my Barclays charges claim, as I had to wait almost 4 months for a County Court Bailiff in Bow to "write" to them to get payment! Isn't that something I should have been able to do for free!

 

I'll bear this in mind, but I still want to see what O2's reaction to these Judgments will be first - I don't want to order Bailiffs in when they are preparing to apply to have Judgment set aside, which is a possibility. (But, the possibility of it dwindles as each day passes!

[orfoster]

My claim update, O2 have filled an acknowledgment. Service address for legal team.

Kent Dreadon.

O2 Uk Limited.

Legal & Regulatory Department

Wellington Street

Slough. SL1 1YP.

 

Incase it helps for sending papers etc.

[car2403]

O2 have filled an acknowledgment

 

Oh, so they DO know how to handle a County Court claim form then?

 

[orfoster]

Well we will wait and see. So now they have until the 28th to put in a defence.

[postggj]

just a quick question

by the way great poc

in reply to no cca cannot process data, and remove default

what if they say claim is based on historical data with ref removel of default and payment markers

sort of relevent

[car2403]

That doesn't matter until they get the Court to set aside Judgment - which they still haven't applied to do yet!

 

They probably will get a chance to if the apply quickly enough, as it probably should go to trial for a decision.

 

Unfortunately for O2, they have failed to supply anything in relation to these accounts under a DPA SAR that was sent in July/August, despite being ordered (albeit in a Judgment by Default) to comply with the request.

 

"Put up or shut up" time has past, IMHO, so I might just press on...

 

I think I'll try this High Court Bailiff thing with the DPA SAR enforcement Judgments, as there's no Defence to that. (Them still having not complied with the requests!)

[car2403]

Letters from O2 today regarding the DPA SAR claims - 2 cheques are in the post for £130 each, which I should have in 18 days.

 

Nothing in relation to the Default Removal claims?!

 

STILL no SAR information being received?! Are they assuming that by paying my claim that they don't have to comply?

 

I wonder what the next few days will bring...

[car2403]

Still no further forward with this one really...

 

Received both of those cheques for each of the DPA claims - 2 x £130.

 

Still no SAR info received...

 

Still nothing from O2 regarding the Default removal Judgments.

 

I rang the Court to check and they've received nothing since they were asked for additional copies of the claim forms, which were sent back to O2 straightaway. The Court HAVEN'T received a request to set Judgment aside.

 

I'm seriously considering getting this transferred to the High Court and enforced by HCEO as mentioned by Nick, above. One question though - if I enforce via the HC and O2 do request Judgment to be set aside, does that mean I will need to go to the HC for the hearing? If that's the case, I might just **try** enforcing via the County Court first - even though I know that isn't effective.

 

Surely the time has now passed (6 weeks since Judgment was entered on 18 December) for them to request a set aside? Whats the motive behind paying out on the DPA Judgments but not mentioning the Default Judgments, I wonder?

[laylaglantz]

Just to let everyone know that I had a succesfull default removal after Abbey put it on my credit record after a succesfull bank charges claim. I sent them the first Data Subject Notice letter and received a letter within one month to inform me that my default would be removed as a gesture of goodwill. So it can be done, keep on it everybody and thanks for all the help and advice, I could never have done it without this forum x

[car2403]

2 Application Notices received from O2 today - the Court don't have this yet, so I wonder if it's in the post to them tomorrow.

 

O2 claiming not to have received anything about the claim prior to my letter in late December asking for them to comply with the Court Orders - this has to be rubbish, as the Court would - and did - send them the claim forms as part of the standard process of issuing the Claim. I wonder how many Default Judgments are set aside because the Defendant claims not to have received the Claim forms?

 

My response to this will be to request the Court turn the Applications aside, as the Court has followed CPR when issuing the claim - and the time to defend the Claim would have been at the relevant time in CPR. Regardless of this, O2 have STILL had the Judgments for 6 weeks and have ONLY just asked for it to be set aside. (In their submissions, they blame the "Christmas and New Year periods" for this late submission - but still claim it's within a reasonable time to submit it)

 

Interestingly, they've supplied agreement terms and conditions dated June 2007, but no evidence of my agreement to those terms - something that was specifically requested under the DPA SAR I sent, which they haven't complied with to date. (Remember, that DPA SAR they've just sent me a cheque for £130 for as they failed to comply - but still haven't provided ANYTHING!)

 

I'll clearly need to include the fact they've provided no evidence of my agreement to these terms, in that I've seen no agreement whatsoever.

 

Even more interesting is the fact they claim they have a realistic chance of defending the claim, (how, when they have no data subject information on me and no evidence of my consent to the agreement?) so they've included their defence to the claim... Which I'll post up when I get it scanned it...

[car2403]

Ok, here's the Defence;

 

1. I am ****** and am a ****** within the Defendant’s legal department at Wellington Street, Slough, Berkshire SL1 1YP. I make this statement on behalf of the Defendant in support of its application to set judgment aside. The matters set out below are within my own knowledge, except where I indicate to the contrary.

(A) The Defendant did not receive the claim form nor any notification that a claim had been made against it

2. On 28 December 2007, the Defendant received a letter from the Claimant referring to two judgments made against the Defendant in his favour for failure to acknowledge the claim forms for claim numbers 7MP01025 and 7MP01027. A copy of this letter is attached and is marked “02/1”.

 

3. This was the first notification the Defendant had received that claims had been made against it by the Claimant and accordingly, I contacted the Morpeth and Berwick County Court to obtain copies of the claim forms and judgments for both claims. These were received by the Claimant on 7 January 2008. I attach copies of the relevant date-stamped judgments marked “02/2” ”.

 

 

 

4. Upon receipt of the claim forms and judgments, applications to set aside were duly drafted.

 

5. The Defendant received no claim form or any notification whatsoever that the relevant claims were being made against it until it received the Claimant’s letter on 28 December 2007. Accordingly and in the circumstances, the Defendant submits that it has a good reason why no acknowledgement was filed and respectfully requests that judgment be set aside on these grounds. It is also respectfully averred that given the timescales involved and the intervening Christmas and New Year period it has acted promptly in submitting this application.

 

(B The Defendant has a real prospect of successfully defending the claim

 

6. In addition to having a good reason should be set-aside, the Defendant respectfully submits that it also has a prospect of successfully defending the claim.

 

7. The Claimant’s claim relates to the processing of his personal data by the Defendant, and in particular, to the passing is personal data to third party credit reference agencies. It is submitted that the Claimant’s case can be summarized as follows:

a. that the Defendant continued to process his personal data after the agreement between the parties came to an end

b. that this continuance to process data after the agreement came to an end (and in particular, the passing of personal data to third party credit reference agencies) constitutes both a breach of contract, as well as a failure by the Defendant to comply with a Statutory Notice pursuant to sections 10 and 12 of the Data Protection Act 1998 (“Data Protection Act”);

c. that the “Default” entry on his credit reference files as a result of the passing of his personal data to third party credit reference agencies is unwarranted and unlawful — being in breach of the Fourth Principle of the

DPA;

d. that the Defendant requires the permission of the Claimant before passing his personal details onto third party credit reference agencies.

 

 

 

8. The Claimant therefore claims damages in the sum of £1,000 for unlawful recission of contract as well as an order under sections 14(1) and (3) of the DPA requiring the removal of the Default information and ‘any other prejudicial information” from all credit reference agencies.

 

9. It is denied by the Defendant that it has acted in a vv unlawfully or in breach of contract.

 

 

(a) The Agreement has not been terminated

 

10. The agreement between the parties was entered into for the provision of mobile

phone services and was subject to 02’s Pay Mnh1y Consumer Service Terms &

Conditions (April 2004) (“the Terms and Conditions”) A copy of these terms and

conditions is attached and marked “Exhibit 02 4

 

11. Clause 7.1 of the Terms and Conditions provides:

7.] We can at our discretion and without notice bar your Mobile Phone from making calls (other than to the emergency services and disconnect it from the

Network:

(a) f any of the circumstances in paragraphs &1 or 6.4 apply to you.

 

 

12. Clause 8.1 provides:

 

8.1 (a) you fail to pay Charges when they are due

 

13. In accordance with Clause 7.1, on 19 November 2004, the Claimant was disconnected for non-payment of charges on his account. At the date of disconnection, the Claimant had an outstanding balance of390.38.

 

 

 

14. For the above reasons, it is accordingly denied by the Defendant that the Agreement was terminated as is averred by the Claimant in his Particulars of Claim. The Claimant was disconnected from the Network in accordance with the Agreement but the Agreement was not terminated. As such, the Agreement subsists and the Defendant is still authorised to process the Claimant’s data by virtue of Clause 16.2 which provides:

 

 

16.2 You authorise us to use and disclose. UK and abroad, information about you and your use of the Service and how you conduct your account for the purposes of operating your providing you with the Service or as required for reasons or national security or under law to our associated companies, partners or any telecommunications company, debt collection agency or credit reference agency and fraud prevention agency or governmental and other users of these agencies who may use this information for the same purpose as us. You agree to this information being used by us for credit control purpose and fraud and crime detection and prevention. You can obtain further details from our public registration held by the Information Commissioner. If you wish to have details of the credit reference or the fraud prevention agencies from whom we obtain and with whom we record information about you or receive a copy (we may charge a fee) of the information we hold about you, please contact us by writing to the Data Controller at 02 (UK) Limited, 260 Bath Road, Slough, SL1 4DX or, if you have eCare, at the address we notify to you by email, stating your full name, address, account number and Mo bile Phone number.

 

15. In accordance with the above clause, the Claimants data was processed for the purposes of operating the account and credit control and it is therefore denied that the Defendant acted in any way unlawfully or in breach of contract.

 

(b) Section 10 of the DPA does not apply

 

16. Further, it is also for this reason that the Defendant denies that it has acted in breach of section 10 of the DPA as is alleged by the Claimant. Section 10 of the DPA states:

 

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 that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another d

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

(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...

 

17. The first condition mentioned in subsection 2 above is contained in paragraph 1 of Schedule 2 DPA and provides that “(1) The consent of the data subject is given “. For the reasons given above, it is averred that the Agreement had not been terminated but that the Claimant had simply been disconnected in accordance with Clause 7.1 of the Agreement. As the Agreement still subsists, the Defendant still had the authority given to it by the Claimant to process his personal data, by virtue of Clause 16.2 of the Agreement.

 

 

 

18. The second condition in paragraph 2 of Schedule 2 of the DPA states “(2) The processing is necessary (a) for the performance of a contract to which the data subject is a party, (b) .. .(not applicable)”.

 

 

 

19. Clause 5.3 of the agreement provides

“You must pay your monthly bill by the date stated on the bill. For any overdue payments we may charge interest at 2% above the base lending rate of HSBC Bank Plc. Interest is charged on a per annum basis, calculated daily. We reserve the right to make a charge for our reasonable administration costs which we incur in the case of late payment or non-payment of Charges.”

 

 

 

20. As described above, the Claimant did not pay his monthly bills in accordance with the Agreement and as a result of the outstanding balance on his account of £390.38, his details were passed on to the relevant agencies for debt recovery. It is respectfully submitted that the processing of the Defendant’s data in this way was necessary for the performance of the Agreement and as such, the exemption from the requirements of section 10(1) in paragraph 2 of Schedule 2 above is applicable and exempts the Defendant from to process the Claimant’s data as claimed.

 

© Section 12 of the DPA does not apply

 

21. In addition to claiming that the Defendant m breach of section 10 of the DPA, the Claimant also alleges that it acted in rah of section 12 of the DPA. This is denied by the Defendant.

22. Section 12 of the DPA provides:

12 Rights in relation to automated decision-taking

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

(2) Where, in a case where no notice under subsection (I) has effect, a decision which significantly affects an individual is based solely on such processing as is mentioned in subsection (1)—

(a) the data controller must as soon as reasonably practicable notify the individual that the decision was taken on that basis, and

(b) the individual is entitled, within twenty-one days of receiving that notification from the data controller, by notice in writing to require the data controller to reconsider the decision or to take a new decision otherwise than on that basis.

(3,) The data controller must, within twenty-one days of receiving a notice under subsection (2)(b) (“the data subject notice “) give the individual a written notice specifying the steps that he intends to take to comply with the data subject notice.

(4) A notice under subsection (1) does not have effect in relation to an exempt decision; and nothing in subsection (2) applies to an exempt decision.

(5) In subsection (4) “exempt decision” means any decision—

(a) in respect of which the condition in subsection (6) and the condition in subsection (7) are met, or

(b) which is made in such other circumstances as may be prescribed by the Secretary of State by order.

(6) The condition in this subsection is that the decision—

(a) is taken in the course of steps taken—

(i) for the purpose of considering whether to enter into a contract with the data subject,

(ii) with a view to entering into such a contr1..

(iii) in the course of performing such a contract

(b) is authorised or required by or under any enactment.

(7) The condition in this subsection is that either—

(a) the effect of the decision is to grant a request of the data subject, or

(7,) steps have been taken to safeguard the legitimate interests of the data subject (for example, by allowing him to make representations

 

23. The Defendant submits first of all that the Claimant has not shown how section 12 is applicable to the processing of his data in the manner complained of by him. However, without prejudice to the Defendants contention that the Claimant must show the relevance of section 12 to the matter in question, it is submitted that any section 12 notice given by the Claimant would be of no effect by virtue of S 12(6) and (7) above. Section 12(4) states that a notice given under section 12(1) is of no effect in relation to an “exempt decision. Subsection 5 describes an exempt decision as being a decision in respect of which the conditions in subsections 6 and 7 are met. The relevant conditions in subsections 6 and 7 are that:

(6) The condition in this subsection is that the decision—

(a) is taken in the course of steps taken—

(iii) in the course of performing such a contract,

(7) The condition in this subsection is that either—

(a) the effect of the decision is to grant a request of the data subject, or

(b) steps have been taken to safeguard the legitimate interests of the data subject (for example, by allowing him to make representations)

 

24. It is submitted that for the same reasons as those given above in relation to section

10, the Agreement has not been terminated and the processing of the Claimant’s data was done in the course of performing a contract, as required by section 12(6). In addition, the Claimant has been at all times free to make any representation he sees fit and has on previous occasions written to the Defendant in relation to the processing of his data.

 

 

 

25. It is therefore submitted that even if the Claimant can show the relevance of section 12 to the present matter, any section 12 notice would be of no effect by virtue of subsections 6 and 7 of that section..

 

(d) No consent is needed

 

26. In the alternative and in any event, it is submitted that even if the contract were terminated as is alleged by the Claimant, the Defendant still acted lawfully in continuing to process the Claimant’s data even in the absence of his consent.

 

27. Attached to this application and marked O2 is a release from the Information Commissioner’s Office dated 6 November 2006 relating to Data Sharing. In this release, the Information Commissioner’s Office makes it clear that in its view and contrary to popular belief, credit reference agencies do not need the consent of the data subject to process account information. It states:

“The complainants’ argument is based on the assumption that the credit reference agencies need consent to process account information. This is not the case.

The first data protection principle requires that as well as processing information

fairly and lawfully, organizations must satisfy’ one of the conditions in Schedule 2

of the Data Protection Act 1998.

It is our view that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

“The processing is necessary for the purposes of the legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject.”

We take a wide view of the legitimate interests and we consider that it is in the interests of other creditors to make informed lending decisions. It is important to note here that the fact that the processing may be seen by some to prejudice a particular individual (for example, someone with an adverse entry on his credit reference file may not be able to obtain credit facilities) does not necessarily render the whole processing operation prejudicial to all individuals.

 

28. The Information Commissioners Office Release then goes on to say and justify why. in its view, the sharing of information for six years after the duration of a contract does not infringe any of the data protection principles contained within the DPA. It is therefore submitted that the Information Commissioners Office Release shows that it is entirely Tmissib1e to under the DPA for credit information about individuals to be held and shared beyond the term of the relevant contract.

 

(e) Section 10 has not been infringed by the Defendant

 

29. Finally and again, even if the Claimant were able to show that the Agreement had been terminated, it is denied that section 10 DPA has been infringed by the Defendant. In his claim, the Claimant relies on section 10 and in particular section 10(1) which states:

“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—

 

30. It is averred by the Defendant that the period of time referred to as being “reasonable in the circumstances” is six years. The Information Commissioners Office Release makes clear that the Defendant is entitled to process data for six years after the termination of any contract and avers that section 10 should be read according to this guidance.

 

31. Further, or in the alternative, the Defendant asserts that under section 10(3)(b) of the DPA:

 

 

“The data controller must within twenty-one dais of receiving a notice under

subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent

unjustified and the extent (if any) to which he has complied or intends to comply with it.

 

 

 

32. It is averred that the Defendant responded as such. In its letters dated 18th October

2007 exhibited to this Witness Statement arid marked “02/6”, the Defendant explained its position and referred the Claimant to the letter from the Information Commissioners Office outlining the “legitimate interests” of creditors to make informed lending decisions, the need for these decisions to be based on accurate and up to date information, as well as the recommendation for the information to be held for up to 6 years. It is therefore averred that the Defendant complied with section 10 in that it gave full reasons why the Claimant’s data subject notice was unjustified and why it would not comply with it.

 

 

 

33. For the above reasons, it is therefore submitted that even if the Claimant could show that the contract was terminated and consent to process his personal data withdrawn, the Defendant has not acted in any way in breach of section 10.

 

CONCLUSION

 

 

 

34. For all of the above reasons, it is respectfully contended that not only does the Defendant have a good reason for judgment to be set aside in that it never received the claim, but it also has a real prospect of successfully defending the claim. It has also made the application promptly.

 

 

 

35. In the circumstances, it is submitted that the Claimant is not entitled to the relief sought and the Defendant respectfully requests that judgment be set aside and that it be given the opportunity to defend the claim made against it.

 

 

STATEMENT OF TRUTH

 

I believe/the Defendant believes that the facts stated in this statement are true.

Signed on behalf of the Defendant

 

The attachments are;

• My letter to them dated 21 December: http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca-3.html#post1296540
  
• A copy of the Court Order (Judgment by Default)
  
• Their T&C's: http://www.o2.co.uk/assets/O2HybridNav/Static-files/PDFs/newcontract.pdf
  
• A copy of their letter to me dated 6 November, enclosing the Information Commissioners Office view on data sharing under credit agreements; http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca.html#post1208885 (NOTE: That's CREDIT AGREEMENTS, when this is a SERVICE AGREEMENT!)

[Nick W]

You could always apply for summary judgment just to be a pain to them.

 

NIck