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

[car2403]

Between you, me and the gatepost, I'm thinking about dragging the CRA's sorry ass in to this - O2 has claimed they only provide information, whereas the CRA dictates how long it's held for, so O2 are washing their hands of most of these arguments.

 

I can't see it getting to Court on that basis, but having the CRA there to explain themselves would be more effective then me telling the Court the CRA only process what is given to them.

 

I can do it with CPR Part 19.4 - and I suppose the Judgment set aside hearing, if it is set aside, would be an appropriate time to request the CRA added in as a 2nd Defendant.

 

Any thoughts?

[Penfold92]

Are you not over complication the whole issue. You, me and anyone who has looked into this in the slightest knows the CRA's are arses who merely follow like sheep yet recon they have power...bless them...

 

The issue is the supply of info and you only gave permission to O2 (whether or not you have now withdrawn it) so CRA's have nothing really to do with it. If O2 tell them to withdraw they have to do so...period...If you call them in they will merely say we do what we are told to do so you will not really get anywhere it it except waste more court time and this may not look good in the long run. Litigation is long and hard enough without needed to make life harder for ourselves.

 

Penfold

[car2403]

Perhaps, Penfold - just thinking about ways to force their hand...

[car2403]

Updated that response with more info on the UTCCR - I didn't realise how much that applies, alongside the DPA issues, if they come to rely on their "terms" regarding processing/sharing data... Learning something new everyday on this one...

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca-5.html#post1436790

[car2403]

In the meantime, the screws are turning trying to organise a set aside and settlement by consent. Again, I believe I'm being seriously underestimated here. (Thanks to Penfold for the PM support on this one!)

 

I can't help but feel that someone is banging their bloodied head against a brick wall here! I also can't help to think that it's not me doing the banging!

 

I can't see how continuing with this is in their interests - bearing in mind they have NO EVIDENCE of any agreement to any terms and conditions! (Confirmed by irrefuable evidence they have supplied to me, in the form of a DPA SAR response!)

 

O2 have been nothing but dismissive of me in their approach here - 1 of claims had its inital approaches totally unresponded to until the Default Judgment was entered against them, in fact! Perhaps O2 are so up themselves that they think they will be the first company to successfully defend against the Surlybonds arguments for Default removal?

 

This situation has continued, to the point that offers thrown left, right and centre have been blatantly refused by O2 in that they won't remove the default information - rightly or wrongly processed.

 

IMO, they have forced this claim to Court, which I will be bringing to the Judge's attention, as they have declined to negotiate in a reasonable way.

 

I'm not surprised by this, but I will be calling them to account on their actions in front of the Court.

 

Response to application to set aside off to all parties today - application hearing is set for 14 April, so lets see what fate brings...

[Penfold92]

Good on you Car, one thing I have realised since becoming a member of CAG is that for too long now the creditors have had it their own way. The revolution started with the Bank charges, but now we are questioning everything and they are struggling to stay on top of things not to mention realising many of their, so called, methods are, to say the least, dubious in the eyes of the law...No agreements, void agreements, bully tactics, harrassment etc...

 

Power to the People...LOL maybe should be Power to the Brave....

 

 

Penfold

[car2403]

Just to add to this that my costs for managing this claim, including all the correspondance I've been involved in from day one, court fees, etc, is now at £500 at the laypersons rate. (There are 2 claims, same issues, different accounts - that's £500 in total)

 

Bear in mind I have offered to withdraw this claim, consenting to judgment being set aside, if they remove the default information and O2 haven't taken it.

 

I've also offered to pay the £350-odd outstanding debt, if they agree to remove it, which has also been declined.

 

If they can get judgment set aside - seems unlikely given my submissions, but could happen I suppose - and they continue to defend as they have outlined, they can't win this. If that happens, it will be very expensive for O2 in the end, as they've left themselves open to pay these costs due to their litigation style, IMHO - small claims track allocation or not.

 

I'm sure the next 2 weeks will be interesting for me...

[car2403]

I've received another witness statement from O2 - this is a response to my response (I know!) to their application to set aside.

 

They seem to believe that showing that a phone was delivered, and that I "must have" agreed to their T&C's to have been given the phone, as reason to continue processing my data? They've included screenshots of their current website showing that where the "I agree" box isn't ticked won't allow the order to go through.

 

Have they read my submission at all? Clearly not, me thinks.

 

Monday will soon come around, when we'll find out if Judgment is to be set aside - and what O2's next step is.

[car2403]

I've received a response to the complaint I sent to the ICO about O2's failure to supply information under the DPA SAR in the prescribed period.

 

In the ICO's own words;

 

"O2 have now confirmed that they have supplied all the information they hold regarding you as a data subject under the DPA. We are now satisfied that O2's breach of its obligations under the Act has been remedied by the provision of this information. We are therefore closing the file on this complaint and would like to thank you for drawing our attention to this matter"

 

Excellent! So, what O2 has provided does not prove that I held any agreement with them, only that a delivery took place, bills were produced and payments were made. No evidence of an agreement having taken place, or that the T&C's they've provided form part of any agreement, has been provided - if this response to the ICO saying "hand up, guv, we've replied with everything he's asked for" is anything to go on, they won't be able to defend my claim at all - let alone prove that the outstanding balance is enforceable (something they claim in their latest witness statement) at all.

 

You'll also like to know that O2 can't prove that the "I agree to your T&C's" box was ticked, despite taking screenshots of their current website ordering process - this is irrefutable under the DPA SAR request, backed up by this response they have sent to the ICO.

 

I know what has happened, because the SAR complaint/claim is being dealt with by Customer Relations while the default removal complaint/claim is being dealt with by O2's Legal Department. From the correspondance from both areas (one in Leeds, from memory, the other in Slough) it's quite clear they don't communicate with each other at all - their downfall, not mine!

 

I'll be taking a leaf from CAG's book, here, and preparing a DPA SAR response (including the statements they alledge prove the debt exists) and putting the Judges name on the account - "I can prove you owe me £400 with this documentation, Sir... Will you pay me if I default you with the CRA, please?". This is what their defence amounts to, at the end of the day...

 

Roll on Monday morning! Bring it on!

 

[Penfold92]

Like the attitude mate, but don't take it with the DJ though!

 

LOL - Go get them, is it this Monday mate?

 

I'm sure you'll be fine,

 

Penfold

[car2403]

This Monday morning for the Judgment set aside application hearing.

[Penfold92]

Lovely jubbly mate...go get em...

[car2403]

Judgment set aside application hearing this morning.

 

The Judge was very nice, but then he always has been when he has sat through my claims in the past, so I genuinely think he's just a nice Judge!

 

The thing was it was pretty much a foregone conclusion, so Judgment has been set aside because they claim they didn't receive service of the claim form - although that is a bad thing for me, today, there's more...

 

The Judge said that he was bound by CPR to set Judgment aside, but he wanted to look at both arguments for O2 requesting it - that was that they didn't receive the claim form and that they had a realistic prospect of success in defending the claim.

 

Part one of that is fairly clear cut and - as I couldn't prove they had receive the claim form - this was the part that was crystal clear. Judgment must be set aside as they haven't received service - fair do's...

 

Part two was the interesting bit, as the Judge said he wasn't here to try the case, but he had to be satisfied that there was a case to answer and that the defence met that case - which I thought was an interesting approach.

 

He started by looking at O2's arguments for setting Judgment aside on this basis - he accused O2 of "blackmailing" me in to submission by getting me to pay to have the default satisfied. I think O2's solicitor actually agreed on this point, but said that this was an "incentive" to continue making payments.

 

We went in circles about how they claim I've defaulted, I claim they don't have a contract, (or can't provide any evidence of it) and that, if they did have a contract, to continue processing my data is a clear breach of the Data Protection Act - they relied on the Information Commissioners Office's opinion on data sharing and I relied on the Information Commissioners Office opinion on recording of default information. It was all a bit tit-for-tat, really.

 

The good news? The Judge said that "to have Judgment set aside the Defendant has to show that it hasn't received service of the claim form - this much is clear, as there's no evidence to show that they did, so Judgment must be set aside. On the second issue, the Defendant must show that it has a realistic prospect of defending the claim - given the submissions to date, this very low threshold of prove probably hasn't been achieved. What I am saying to you both now, is that I will set aside Judgment on the first issue, but I can't set aside Judgment on the second issue - having said that, as the first one is satisfied, I don't need to make further assertions as to what will or will not happen at trial. I would like to make the point that I believe that the Defendant can show that it has stumbled across this particular hurdle, rather than jumping it and clearing it completely"

 

IMHO, the Judge was bound to set Judgment aside. He wasn't bound to advise them as to the prospects of their defence, but he's fired a warning shot over their bow that they simply can't defend my claim! This is a win, in my eyes, albeit a very limited one... Hopefully this will push O2 in to accepting their obligations and removing the Default information now... Something I've tried to get them to do for 8/9 months now!

 

The order of the court is;

• Judgment by Default is set aside
  
• Both claims (1 mine, 1 my OH's) will be heard together and these directions apply;
  • The Defendant is to file its formal defence to the claim by 18 April 2008
    
  • The need for Allocation Questionnaires is dispensed with (no fee applies, as the claim is less than £1500)
    
  • This case is allocated to the small claims track
    
  • Standard small claims directions apply (he didn't say what these are, but we've seen these before many times)
    
  • Skeleton arguments are to be submitted at least 3 days prior to the final hearing, which is to be listed ASAP.
    
  • 2.5 hours allowed for the trial
    
  • No order as to costs
    
  • The claim is to be referred to the Small Claims Mediator

He actually discussed the "without prejudice" letters/emails that have been sent between me/O2 as we've discussed settlement - once I agreed that I would waive privilege over those communications, he told O2's solicitor that my offer of settlement would be the best thing they can wish for at trial, realistically. It was very naughty to send that to the Court, but I think it did help to win the Judge over and get him to see my side of the argument.

 

Personally, all in all, I don't think I could have asked for more today - I only have to wait for O2 to wake up and smell the coffee, or for the hearing to come around and for them to lose.

 

[Penfold92]

Hi mate,

 

Sounds like a nice morning's work there...

 

One thing can you clarify this bit: "He actually discussed the "without prejudice" letters/emails that have been sent between me/O2 as we've discussed settlement - once I agreed that I would waive privilege over those communications, he told O2's solicitor that my offer of settlement would be the best thing they can wish for at trial, realistically. It was very naughty to send that to the Court, but I think it did help to win the Judge over and get him to see my side of the argument."

 

What did you send the judge if you only waived your rights at the hearing?

 

Penfold

[car2403]

It was a bunch of emails between me/O2's litigation team where I offered to discontinue the claim if they would withdraw the default notifications sent to the CRA's.

[car2403]

I'm now have O2's formal defence - and their counterclaim, for the outstanding balanaces, which I was expecting much earlier in this claim, but they've now seen fit to try to wobble me by doing it now. It won't work. I think they are now taking me seriously - their attempts to negotiate by writing off the outstanding balances, but without default removal, have failed to date. This counterclaim can mean one of two things, IMHO - I either have them on the run so they are trying to bolster their defence, should it get to a hearing, by cc'ing for the balances. Or... they think they have an excellent defence and will be successful in cc'ing the balances. In either case, I think they are struggling to put a case together that will stand up in a hearing. (Considering the Judge's comments in last weeks hearing, also)

 

The defence, in brief, is;

1. Their terms and conditions allow them to share my data.
   
2. The agreement has not been terminated by their disconnection of the mobile phone service. (Their T&C's referring to it as a "barring of service", rather than a "termination of agreement")
   
3. Consent to process continues as the agreement hasn't been terminated.
   
4. Woodchester Lease Management and the Kpohraror cases aren't relevant to the current proceedings.
   
5. s.10 Data Protection Act is irrelevant as the agreement has not been terminated, so they are claiming exemption as consent continues as a result.
   
6. s.12 Data Protection Act is irrelevant as the agreement has not been terminated, so they are claiming exemption as consent continues as a result.
   
7. The default in making payments did happen, so the information recorded is accurate.
   
8. O2 can process lawfully for performance under the contract and for "credit control" purposes. (This has changed from "credit collection", which was the term used by the Solicitor attending for them at the last hearing)
   
9. They claim to have the right to process for 6 years after termination, should the agreement be deemed terminated. (Relying on the Information Commissioners Office view on data sharing of credit agreements)
   
10. s.10 has not been breached.
    
11. s.12 has not been breached.
    
12. O2 does not require consent to store, process and/or disclose personal data for up to six years after termination, regardless.

The counterclaim is for;

1. The outstanding balances.
   
2. 8% interest under s.69.

My plan of attack? Pay, without prejudice or admission of liability, the outstanding balances and the 8% interest and give them 30 days notice that I intend to terminate the agreement. (According to their alleged T&C's) Without the outstanding balances, or the argument that the agreement hasn't been terminated, they will have to remove the defaults, IMHO. I will also be referring to the "without prejudice" negotiations that has been going on, that the Court is already aware of, where this is exactly what I have offered them if they remove the defaults, but they didn't - I'm hoping to open up the CPR Part 36 costs issue, should I win. (I know that O2 will do the same, however)

 

Ho hum...

[Penfold92]

Are they discussing the "agreements" they have not produced under your SAR, right? If so it is a brilliant defence...

 

Keep at them mate,

 

Prabs

[car2403]

There is no "agreement", Penfold, just the implication that I "clicked" a button to accept their T&C's, have used the phone and paid bills previously, then stopped paying. The Judge's view was that there is an agreement in place to pay, but he wasn't happy they couldn't produce evidence of the fact that those terms were the terms I signed up to - he was very dismissive of them, in the fact they are relying on evidence they can't substantiate, but did say there must have been a contract in place.

 

The only things they've sent in my S.A.R. response is a screenshot of a statement of bills produced, showing the alleged outstanding balance - when I queried the content of those bills, they've admitted that they don't hold information relating to calls placed, numbers rang, text messages sent, etc, as that "isn't allowed under the DPA".

 

They should think themselves lucky I'm not one of those people that tries to avoid legitimate debts and am willing to pay them - if I were, I would have quite a good case, regardless of the "opinion" of my motives that the Judge holds.

 

I wonder what their response will be when they receive these payments.

 

If O2 continue to defend in the way they are, this will have serious implications on their ability to carry their business out the way they currently do - I already have the attention of my MP and I will be contacting the BBC to blow the whistle on this process, should they continue in this vain.

 

All this for the sake of removing a Default marker on my CRA file. Tsk, tsk, O2... Get your house in order, before you start throwing stones, pleeeeaaaaassssseeeeee!

[car2403]

The clock is ticking on O2 - the case is listed for hearing on 30 May. (Actually, "cases", as there are 2 cases ongoing here that are exactly the same, remember)

[VC10]

Have you made a Part 36 offer? I take it you are aware of the advantages of making a Pt 36, particularly as claimant? If you are willing to pay, I'd recommend making one ASAP; would have been best to have it in at commencement of action. I know costs are a minor issue in small claims, but it would ensure that 02 is unable to claim *any* costs if they win, but fail to beat your offer.

[car2403]

I've made various without prejudice offers to O2, ranging from them writing the debt off and removing the defaults, to me paying the full outstanding balances also removing the defaults - all these offers have been declined by O2, as they claim they can't remove the defaults.

 

IMHO, the Judge will see these offers from me to them as Part 36 offers, but I still can't see him awarding costs to me - I am hoping that he will decline O2's attempts at claiming their costs against me, if I was to lose, (which won't happen) because it is on the small claims track.

 

The best O2 can gain is payment of the balances. Either way, they can't defend the DPA issues.

 

As this is the first time they've approached a counterclaim for the balances, I've paid them, as the issue isn't avoiding the debts. I'll use the fact the account was in dispute throughout for the reason to delay payment, until the issue of the counterclaim, to show I've cooperated with the courts process

 

The issues are that they don't have an agreement/contract allowing them to process, can't show I've agreed to their T&C's, definately can't show that I agreed to their processing in perpetuity as the agreement has now been terminated and that in either case, I can, and have, withdrawn consent and they can't rely on one of the exceptions.

Putting this simply, I've done everything that I can to resolve this issue with them and they have simply dug their heels in. The Judge has already indicated they will lose at a hearing, (but cheekily suggested we used the mediation service at the same time!) so it's only a waiting game (again!) now.

[car2403]

Just adding to this, when I've had counterclaims issued before, the Court has used the CPR Part 20 process and sent a Part 20 claim response pack for completion - this hasn't happened here.

 

This could mean one of 2 things - either, the Court hasn't realised that they've issued a counterclaim (it seems to me that they haven't paid the fee, but I'll need to contact the Court Monday to confirm) and that they've just attached a counterclaim statement to the back of their defence statement. It could, of course, mean that the CC has been issued, but I haven't had a correct response pack enclosed to reply.

 

In either case, I will be defending their counterclaim in full, based on the fact that the amount they are claiming has been paid - they can't claim the same amount again. (There could be a continuance of counterclaim based on the fee for issuing it, but I will again be relying on my Part 36 offers to avoid having to pay this fee - at the most, I may have to pay this at the trial hearing, if the Judge orders it. In the meantime, O2 have been paid for the balances and 8% statutory interest on those balances) Once O2 have confirmed receipt of the payments, I'll be submitting my defence to their counterclaim on this basis - which should be next week, hopefully.

[sortingitout]

I have just read this from the start, what an excellent read but i can not believe what 02 are doing, what a waste of everyone's time.

 

The best of luck (not that you need it) with the rest of your claim, I am eagerly looking forward to the outcome.

[car2403]

I am now submitting my formal defence to their counterclaim;

 

 

Case Number: ****

 

 

 

In the **** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant and Part 20 Defendant)

 

 

 

-v-

 

 

 

O2 (Online) Limited

 

 

(Defendant and Part 20 Claimant)

 

 

 

_______________________

 

DEFENCE TO COUNTERCLAIM

_______________________

 

 

 

 

1. I, the Claimant and Part 20 Defendant in this case, am a litigant in person and I make this defence to counterclaim statement from my own knowledge and experience.

 

 

2. With reference to the Defendants counterclaim, outlined in paragraphs 66-69 of its Defence submission dated 17 April 2008, the Claimant and Part 20 Defendant submits as follows;

 

3. Paragraph 3 of the Defendants Defence, referred to at paragraph 66 of the Defendants counterclaim statement, is admitted, insofar as the parties entered in to a mobile telephone service agreement, save for where a denial has been referred to in these proceedings already.

 

4. Paragraph 4 of the Defendants Defence, referred to at paragraph 66 of the Defendants counterclaim statement, is admitted, save for the Claimants denial that the alleged terms and conditions that the Defendant relies on do not form part of the alleged contract between the parties and puts the Defendant to strict proof of such a submission.

 

5. Paragraph 24 of the Defendants Defence, referred to at paragraph 66 of the Defendants counterclaim statement, is denied and reference is made to paragraph 4, above, which is repeated.

 

6. Paragraph 67 of the Defendants counterclaim is denied and the Defendant is put to strict proof of such a submission and reference is made to paragraph 4, above, which is repeated.

 

7. Paragraph 68 of the Defendants counterclaim is admitted, save for where the Claimant denies that this is the outstanding balance and puts the Defendant to strict proof of such a submission.

 

8. Paragraph 69 of the Defendants counterclaim is denied. As the Court has not ruled on the Defendants counterclaim, the Defendant is unable to counterclaim interest under s.69 County Courts Act 1984.

 

9. The Claimant denies, therefore, that the Defendant can counterclaim against it for the amounts outlined at paragraph 69(1) and 69(2) of the Defendants counterclaim, as a result.

 

10. In the alternative to that stated above, without prejudice to any submissions made by the Claimant in these proceedings and without any admission of liability whatsoever, (either as outlined by the Defendant, or otherwise) where it is held that this defence to counterclaim is to be unsuccessful, which is denied, the Claimant will submit as follows;

 

11. The Claimant, immediately upon receipt of the Defendants counterclaim and in the hope of furthering the overriding objectives by coming to a speedy and equitable settlement of the claim against the Defendant and the subsequent counterclaim, sent payment of £**** by cheque to the Defendant on 22 April 2008. This amount equals the amount counterclaimed against the Claimant and represents the alleged outstanding balance that the Defendant counterclaims, along with 8% interest on that amount, since the day of alleged inception.

 

12. As a result of paragraph 11, the Claimant denies that the Defendant can counterclaim against it for the amounts outlined at paragraph 69(1) and 69(2) of the Defendants counterclaim, as a result of those amounts having already been paid to it. The entire counterclaim, therefore, is denied in full, as a result.

 

Statement of truth;

 

I, the Claimant and Part 20 Defendant, believe all facts stated to be true.

Signed,

 

 

car2403

 

Dated this, the 2nd day of May, 2008.

 

If O2 don't reciprocate this gesture of goodwill and withdraw, they are going to get a seriously worse lashing from this Judge than that one they got in the judgment set aside hearing.

 

No matter what their "company policy", or "industry standard" that they follow, they simply can't win this.

 

I too, sortingitout, am surprised that we've even got this far - this just goes to show how stubborn O2 have been. I will be working my costs out - the claim started in November and has been unnecessarily dragged out by O2's stubbornness. Even if I can only claim 30 hours @ £9.25 per hour, plus disbursements, (all allowed by CPR) I'll be happy to slap that on top, with the Judges "nod", of course. My first CPR Part 36 settlement offer is dated 16 February, so any costs incurred after that date as a result of their refusal of it should be recoverable, IMHO.

 

I now need to hash together my skeleton arguments and supporting documentation, all of which has already been done elsewhere as I just need to "cut and paste" my response to the set aside request and add in my defence to counterclaim, all of which will need to be submitted by 16 May.

 

Final hearing date (otherwise known as "high noon at the O.k. carroll" in this claim!) is 30 May... That clock is still ticking, O2...

[car2403]

I now need to hash together my skeleton arguments and supporting documentation, all of which has already been done elsewhere as I just need to "cut and paste" my response to the set aside request and add in my defence to counterclaim, all of which will need to be submitted by 16 May.

 

While putting this together, I've noticed something interesting.

 

Originally, O2 relied on the following to defend the claim in the judgment set aside hearing;

• The agreement has not been terminated
  
• s.10 of the Data Protection Act 1998 does not apply
  
• s.12 of the Data Protection Act 1998 does not apply
  
• No consent is needed
  
• s.10 of the Data Protection Act 1998 has not been infringed
  

In the amended defence, they rely on;

• The agreement has not been terminated, so consent is still valid
  
• They are exempted from s.10 and s.12 of the Data Protection Act 1998 as a result
  
• No consent is needed
  

Now they've been paid for the balance (they are still to cash the cheques, but I have proof of receipt) the only issue is that no consent is needed.

When they see my skeleton argument, they will have to revise their defence as each of these points has now been dealt with. They simply can't win this. I'll post the skeleton up once I've got it completed, which should be early this week hopefully. (It needs to be submitted by 16 May ready for the hearing on the 30 May)