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

[Penfold92]

Good luck mate, but you won't need it, baffle them with science...

 

I have a few hearings coming up too so I am sure we will be keeping the threads ticking along for a while yet...

 

Prabs

[car2403]

Here's the skeleton argument that is going to O2 and the Court in the morning;

 

 

Claim Number:***

 

 

 

In the *** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

O2 (Online) Limited

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

 

WITNESS STATEMENT AND

SKELETON ARGUMENT

OF THE CLAIMANT

 

 

 

_______________________

 

 

 

 

1. I, car2403, the Claimant in this case, am a litigant in person and I submit this witness statement and skeleton argument from my own knowledge and experience save for where reference is made to specific documentation contained in the supporting evidence and exhibits, (attached) in which case this statement is made in support of that evidence or exhibit.

 

 

2. This statement is submitted by the Claimant and outlines its case in full against the Defendant. 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 CLAIM

 

3. The Claimant admits that it held a Mobile Telephone Service Agreement with the Defendant between 14 July 2003 and 24 January 2005, numbered ***.

 

 

4. 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 24 January 2005, with an original Default balance of £379.00.

 

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

 

 

PART 1:

 

 

THE CONTRACTUAL AGREEMENT AND THE

PERCEIVED UNFAIRNESS OF ITS TERMS

 

 

6. On 30 September 2007, the Claimant made a Data Subject Access Request, (“Exhibit 1”, attached) enclosing the Statutory fee of £10.00, under s.7 Data Protection Act 1998 (herein referred to as “Data Protection Act 1998”) to the Defendant, requesting, specifically; (but not exclusively, as the Claimant required access to all information relating to him under the DPA 1998)

a. Statements of all payments made and received on the account

b. Details of all charges for unpaid items and fees charged for managing the account.

c. Copies of all original agreements for the account held in the Claimants name, along with details of the relevant terms and conditions referred to in the agreement, in relation to the account.

d. Details of all manual intervention that has taken place on accounts held in the Claimants name, with documentary evidence of such.

e. Details of logic involved in any automated decisions the Defendant made about the Claimant or the Claimants accounts with the Defendant.

 

 

7. The Defendant replied to this request in a response dated 26 February 2008. (“Exhibit 2”, attached) Within that reply was enclosed;

a. An alleged statement of the use and disclosure of information; and

b. Profile details held by the Defendant in relation to the Claimant; and

c. A “sales ledger”, showing the alleged statement of account; and

d. A history of orders allegedly placed between the parties;

e. Copies of correspondence, in email and letter form, between the parties.

 

 

8. Such evidence does not show details of the contract itself, the Claimants consent to that contract, or that the Claimant has agreed to the alleged terms and conditions that the Defendant seeks to rely on. In fact, no information has been supplied to the Claimant to confirm the basis on which the original agreement between the two parties was formed at all. The Claimant submits, therefore, that this is irrefutable evidence, as it was provided by the Defendant in response to his s.7 request.

 

 

9. The Defendant has supplied all data held by it in relation to the Claimant as a data subject. The Claimant refers to a letter received by him from the Information Commissioners Office, in reply to a complaint regarding the Defendants late response to the subject access request, in which the Information Commissioners Office has stated; (“Exhibit 3”, attached)

 

“O2 have now confirmed that they have supplied all the information they hold regarding you as a data subject under the Data Protection Act. 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”

 

 

10. The Defendant, in support of its application to set judgment by default aside in these proceedings, submitted screenshots of its website, (“Exhibit 4”, attached) from which the Claimant had allegedly originally placed his order. The Defendant relies on the fact that the current set up of its website will not allow an order to be placed without the customer agreeing to the Defendants terms and conditions.

 

 

11. The Claimant submits that this is not evidence of the Claimants consent to those alleged terms and conditions, as the set up of the Defendants website today is irrelevant to an order that was placed in 2003.

 

 

12. Being unable to demonstrate the contractual obligations between the parties, the Defendant is unable to rely on the fact that the Claimant was “in default” of that contract, or its terms and conditions, (or indeed any terms and conditions) as a result. As such, any “Defaulting” of the Claimant, via his credit reference file, is inaccurate.

 

 

13. 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;”

 

 

The Claimant is aware that this case relates to a Consumer Credit Agreement, regulated by the Consumer Credit Act 1974, and that the alleged agreement in the current proceedings is not a regulated agreement. The Claimant, however, submits that this part of Sir Morrits Judgment does have a cross read effect, in that it outlines a possible conclusion that the Court may draw, should the Defendant fail to provide evidence of the alleged agreement between the parties.

 

14. The Claimant, therefore, puts the Defendant to strict proof of the contractual agreement between the parties in relation to the Service 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.

 

 

15. 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;

 

16. 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.

 

 

17. 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.

 

 

18. 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.

 

 

19. 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)

 

 

20. 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."

21. The Claimant repeats paragraph 10, above.

 

 

22. 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.

 

 

23. 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 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). 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.

 

 

24. 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)

 

 

25. 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."

26. As the Defendant carries its business out via a website, 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 placing an order 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.

 

 

27. The Defendant is relying on terms and conditions that are dated 2006. The Claimant became a customer of the Defendant prior to this date. The Claimant submits that the terms in this document are unfair, under schedule 2(j) of the regulations, as the Defendant has altered the original terms and conditions up on which the contract was based, without a valid reason specified in the contract. (Evidence of such contract being non-existent) The Claimant repeats the test of strict proof, outlined at paragraph 14 above, to show the detail of the original contract and the original terms and conditions of such contract that allow the terms and conditions to be varied at a future point in time. The Claimant submits that, where the Defendant cannot show that the original contract itself, or the terms of it, allowed for variance at a future point in time, he cannot be bound by the current terms, as the Defendant suggests, as that would be unfair under the regulations.

 

 

28. The Defendant, in its submission, should it be successful, seems to suggest that its own interpretation, on the question of whether the agreement was terminated or not, is the only interpretation of those facts. It offers no alternative statement where the Court decides this interpretation is inaccurate or incorrect. The Claimant submits this is unfair, as the Defendant is unwilling to use any discretion on assessing the fairness of the claim, under schedule 3(m).

 

 

29. 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, (to provide a mobile telephone service) 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.

 

 

30. 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))

 

 

EFFECT OF FAILURE TO DEFAULT THE CLAIMANT CORRECTLY

 

31. Failure of a Default to be accurate not only invalidates the Default (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust [2001] EWCA Civ 633, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

 

PART 2:

DATA PROTECTION ACT 1998

 

 

32. The Claimant contests that the Defendants continued processing of his data is an unwarranted act, for the reasons stated in this statement, and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the DPA 1998.

 

33. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. 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 these alleged agreements to be wholly unwarranted and unlawful.

 

34. 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.”

 

35. 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.”

 

36. 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.

 

37. 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.”

 

 

38. 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”

 

39. That consent does not exist. The Defendant has been unable to show that the Claimant consented to the processing taking place, as outlined herein.

 

 

40. 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.

 

 

41. The Claimant also repeats paragraph 14.

 

 

42. The Claimant has further advised the Defendant of withdrawal of consent, in any case, in his s.10/s.12 DPA Notice.

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.

43. For both (a) and (b), there is no contract in existence at this time. The Claimant makes reference to paragraphs 39-41.

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.

44. 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.

 

45. 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.”

 

 

46. 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.

 

47. 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.

 

48. 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.

 

49. 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.

 

 

50. 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.

 

 

51. 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)).

 

 

52. 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.

 

 

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

 

 

54. 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.

 

 

55. 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

 

 

56. 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."

 

 

57. 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".

 

 

58. As the Defendant is unable to show that the Claimant has “consented” to the sharing of his data with third parties, for the reasons stated herein, it is unable to show that the use of his data in this way is as was specified in the contract.

 

 

59. 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.

 

 

60. 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. 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.

 

 

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

 

62. 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.”

 

63. In this case, the Defendant is processing data without consent. The Claimant repeats paragraphs 39-43.

 

64. 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”.

 

65. 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”

 

66. 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.”

 

 

67. 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).

 

 

68. 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

 

69. The Claimant, after discussions 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.

 

70. 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.

 

71. 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.”

 

 

72. 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.”

 

 

73. 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).

 

 

74. The Claimant repeats paragraphs 37-55.

 

75. The Claimant also repeats paragraphs 6-30.

 

76. The Claimant also repeats paragraph 60.

 

77. This consent revocation is in line with advice issued by the Information Commissioners Office. (“Exhibit 5”, as attached)

 

 

78. 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.

 

 

79. The recording of “Default” information by the Defendant, against the Claimants credit file, without having consent, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, therefore breaches the DPA 1998.

 

 

PART 3:

 

 

REPLY TO THE DEFENDANTS DEFENCE

 

 

80. The Defendant submits a complete defence to the claim on the following grounds;

 

 

a. The agreement has not been terminated;

b. s.10 of the Data Protection Act 1998 does not apply;

c. s.12 of the Data Protection Act 1998 does not apply;

d. No consent is needed;

e. s.10 of the Data Protection Act 1998 has not been infringed.

 

 

81. In relation to each of these points, the Claimant will plead as follows;

 

a. THE AGREEMENT HAS NOT BEEN TERMINATED;

 

82. The Defendant submits that the agreement between the parties was not terminated on 24 January 2005, as alleged by the Claimant, relying on clauses 7.1, 7.3, 8.1 and 8.2 in its submission.

 

 

83. The Claimant submits that the question of whether the agreement was terminated or not is one of fact. The facts are, as admitted by the Defendant in its witness statement that the parties entered in to an agreement for the provision of a mobile telephone service from the Defendant to the Claimant. The Defendant further admits that the provision of this service was “disconnected”. The Claimant will argue that such an action is, in effect, tantamount to a termination of the agreement between the two parties, as the core reason for the existence of the contract between them (provision of a mobile telephone service) had been unilaterally revoked by the Defendant. It cannot reasonably be argued that the agreement was not terminated as a result of the disconnection of the service provided to the Claimant.

 

 

84. The Claimant refers to Data Protection Technical Guidance on filing defaults with credit reference agencies, released by the Information Commissioner, (“Exhibit 6”, attached) dated 2 August 2007;

 

“10 Indicators of a default…

The following indicate that a breakdown has occurred in most types of product…

The account has been referred to a collection agency or in-house debt collection department…

The lender takes or has taken steps to cut off the service provided…”

 

This part of the Information Commissioners Office’s guidance supports the Claimants view that disconnection of his mobile phone service is tantamount to a default and therefore termination of the agreement under which it is provided.

 

85. Further to this, the Defendant relies on the fact that there is an outstanding balance owed to it by the Claimant - no admission is made as to whether the balance is correct, however the Claimant has corresponded with the Defendant on multiple occasions attempting to seek a settlement of the balance, conditional on default removal – (“Exhibit 7”, attached) the Defendant has refused to negotiate with the Claimant on this point throughout that period of correspondence, as it has refused to remove the default notifications from the Claimants credit reference files.

 

 

86. The Claimant is querying the Defendants ability to share his data, both under the contract itself and the principles of the Data Protection Act, and has sought to negotiate with the Defendant on this precise issue as part of those negotiations. In fact, this is the first time the Defendant has acknowledged the Claimants dispute with it without dismissing it with irrelevant argument.

 

 

87. The Claimant submits that, as the Defendant is relying on the fact there is a balance outstanding, which the Claimant has offered to clear if the Defendant agrees to remove these default markers, and has refused to negotiate with the Claimant on this issue, that the Defendant has sought to frustrate proceedings and is abusing the Courts process by attempting to rely on this fact to defend this claim on that basis. In essence, the Defendant has brought this situation around itself and now seeks to rely on that situation to justify its position in defending the claim, a situation which causes prejudice to the Claimant in these proceedings, cannot be said to be fair in equity and is against the overriding objectives. The principles of equity rely on the Defendant having “clean hands” when coming to the Court and asking it to consider its defence to the claim – the Defendant is seeking to use it’s position as a “sword” against the Claimants arguments, rather than a “shield”, and the Claimant will submit that equity should prevail and prevent the Defendant from relying on a situation it has created to defeat the Claimants claim.

 

 

88. Further to this, the Claimant refers to paragraphs 109-120, below.

 

 

89. The Defendant further submits that the Claimant, by entering in to the agreement with the Defendant, was bound by the Defendants terms and conditions (“Exhibit 8”, attached) and had therefore consented to those terms and conditions that relate to data use and disclosure.

 

 

90. The Defendant relies on Clause 16.2 of its Terms and Conditions, to continue to process the Claimants data. The Claimant submits that, as no such agreement can be said to exist between the parties, as a result of that stated in paragraph 6-30 above, the Defendant cannot rely on this term of agreement, or any other term to the same effect, as it intends to here.

 

91. For the reasons given above, the Claimant submits that the agreement between the parties was indeed terminated for the reasons stated. Any consent to process the Claimants data would have been revoked on termination of the agreement, at which point the terms of that agreement would have came to an end.

 

 

92. In the alternative, where it is held, that the terms and conditions submitted by the Defendant are the terms and conditions up on which the parties originally contracted, which is denied, the Claimant will further submit as follows;

 

 

93. The Claimant repeats paragraphs 6-30, above.

 

 

94. The Claimant also repeats paragraphs 32-79, above.

 

b. s.10 OF THE DPA DOES NOT APPLY;

 

95. The Claimant makes reference to paragraphs 69-79, above, in response to the Defendants defence under this section.

 

 

c. s.12 OF THE DPA DOES NOT APPLY;

 

96. The Claimant makes reference to paragraphs 69-79, above, in response to the Defendants defence under this section.

 

 

97. The Claimant submits that s.12 is relevant as the Defendant is sharing default information with third parties, by means of automated processing of the account data (including, but not limited to, the current outstanding balance) and passing that information to credit reference agencies, it is therefore making automated decisions that the Claimant is in default of his agreement without being able to fully substantiate this matter for the reasons stated herein.

 

 

98. The Defendant claims s.12(6) and s.12(7) applies, but is unable to rely on these subsections for the same reasons, as stated above.

 

 

d. NO CONSENT IS NEEDED;

 

99. 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 is headed “Credit Agreements – Data Sharing” and the agreement in question is not a “Credit Agreement” (an agreement between creditor and debtor to provide credit from the creditor to the debtor) but is a “Service Agreement”; (an agreement between a service provider, in this case the Defendant, and a customer, in this case the Claimant, to provide that service to the customer) and

b. 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.

 

 

100. Further, 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.

 

 

101. 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.

 

 

102. 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.

 

 

103. 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;

 

 

104. The Information Commissioners Office, from guidance in another document entitled “Data Protection Act: Help! How can I stop them processing my personal information?” (“Exhibit 5”, 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.

 

 

105. 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.

 

 

106. The Claimant will also refer to the Information Commissioners Office’s Data Protection Technical Guidance on filing defaults with credit reference agencies, (“Exhibit 6”, 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.

 

e. s.10 OF THE DPA HAS NOT BEEN INFRINGED;

 

107. The Defendant relies on the Information Commissioners Office’s opinion in relation to data sharing – the Claimant therefore repeats paragraph 69-78 and 99-106 of this statement in relation to this part of the Defendants defence.

 

 

108. The Defendant further relies on the fact that it did reply to the Claimant with reasons for not complying with his s.10 DPA notice. The Claimant admits that such a response was received, (“Exhibit 9”, attached) but that this response is flawed for the same reasons as that contained in this statement with regard to the Defendants defence.

 

 

 

PART 4:

THE DEFENDANTS COUNTERCLAIM

 

 

109. The Defendant has entered a Counterclaim against the Claimant for the alleged outstanding balance, as outlined at paragraph 66-69 of its Defence submission dated 17 April 2008.

 

 

110. In relation to that Counterclaim, the Claimant intends to plead as follows;

 

 

111. 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.

 

112. 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.

 

113. Paragraph 24 of the Defendants Defence, referred to at paragraph 66 of the Defendants counterclaim statement, is denied and reference is made to paragraph 112, above, which is repeated.

 

114. 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 112, above, which is repeated.

 

115. 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.

 

116. 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.

 

117. 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.

 

118. 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;

 

119. 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 £405.73 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.

 

120. As a result of paragraph 119, 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.

 

 

PART 5:

CONCLUSION

 

 

121. 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.

 

122. 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).

 

123. 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.

 

 

124. The Defendant is unable to rely on its own defence, as it has no basis in law, nor does the Defendant have any binding precedent that allows it to continue to process the Claimants data as it has and continues to do so. Further, the Defendant is unable to meet the requirement of producing evidence to substantiate the agreement, if any, made between the parties, to show which terms and conditions such an agreement was made up on, or indeed to show that the Claimant did actually default on his obligations. Where the Defendant is able to do so, the Claimant has shown that holding him, in these circumstances, to such agreement would be unfair under the Unfair Terms in Consumer Contract Regulations, 1999 and contrary to the principles of the Data Protection Act.

 

 

125. The Defendant is unable to show exactly what agreement was originally made, or the terms on which such agreement, if one does indeed exist, was formed. It cannot rely on statements made in its own defence submissions, not least because its view of such statements is out of date or flawed, favours its own position because it has deliberately misquoted the source of those statements (the Information Commissioners Office) in an attempt to deliberately frustrate proceedings, and abuse the Courts process in the current proceedings

 

 

126. The Claimant, therefore, claims against the Defendant for the reasons stated herein and 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.

 

 

127. Additionally, the claimant requests an order from the Court under s.14(1) and s.14(3) of The Data Protection Act 1998 for the removal of the Default notices and any other prejudicial information from all credit reference agencies;

 

 

“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.”

 

128. The Claimant also claims Court fees of £140.

 

 

129. The Claimant therefore claims against the Defendant in the terms outlined in this statement and seeks;

a. 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 NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119; and (paragraph 31)

b. An order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies; and (paragraph 127)

c. Court fees of £140; and (paragraph 128)

d. Costs of the case, at the discretion of the Court.

 

 

STATEMENT OF TRUTH

 

I, car2403, the Claimant in this case, am a litigant in person and I believe that the facts stated in this submission are true.

 

 

 

Signed:

 

 

 

 

car2403

 

(Claimant)

Dated this, the 11th day of May, in the year two thousand and eight.

 

O2 are taking the mick - they've sent me a letter in reply to my letter to them earlier in the month containing the cheques settling the outstanding balances. They've asked me to confirm, in writing, that the cheque payments are for the outstanding balance and that the settlement offer contained in the letter is with regards my claim against them. It's obvious from the letter that the cheque is payment of their counterclaim against me and that the settlement offer in that letter is regarding my claim against them. I can't see what their motives are in asking for that information in writing, as they've already had my defence to counterclaim saying that I've already paid the outstanding balance so they can't claim it against me. Having said that, I can't see their motives in insisting that they will continue to defend, (which they've mentioned again in the letter I got today) so I shouldn't be surprised.

 

Still, not long to wait for the final hearing on this debarcle, which is set for 30th May...

[Penfold92]

LOL...I feel SO SORRY for the duty solicitor that turns up mate....His head will explode!

 

Go get em!

 

Prabs

[car2403]

O2 is now on a very sticky wicket with this one, IMHO.

 

Not only has the cheques cleared to satisfy their counterclaim against me, where they haven't withdrawn it despite that, (as I've specifically asked them to do - three times now!) but they have failed to comply with the Courts directions in that they haven't submitted anything that the Judge ordered them to. He wanted them to "copy and paste" (his words) the argument they put forward for setting the judgment by default aside and the defence statement witness statements together, to make it easier for him to understand their case. He also wanted them to submit a skeleton argument 3 days after they received mine. So far, I've received nothing from them.

 

Roll on next Friday...

[Penfold92]

Why don't you write to the Court and tell them this and "humbly request they debar the Defendant from adducing its own evidence at the trial without leave."

 

That should put a spanner in their works...

 

Penfold

[car2403]

I don't want the Court reviewing the file until the actual hearing - the order states that they can't submit anything unless it's done under standard small claims track directions, so I should have received it last Friday.

 

If I write to the Court, they may give them "more time".

 

Anyway, there's still a slim chance of settlement, (although O2 are now ignoring my "without prejudice" communications with them - probably because I showed the last lot to the Court) or that they don't turn up at all.

 

Either way, this has been ongoing since August last year, so I'm happy to sit it out.

[Penfold92]

Fair enough mate, it works for me in the Woolwich case as their was no point them turning up as Judge would not allow them to submit any evidence due to ignoring court orders...

[car2403]

I'm hoping it is the same Judge that we had last time - he gave them sharp shift and told them they didn't have a defence, so they should settle.

 

Maybe the post will bring something interesting between now and then.

[2Grumpy]

O2's letter in post 18 says that O2 register arrears with the CRAs. It doesn't mention defaults.

 

The information commissioners guidance says that they can't register defaults while the account is in dispute. By the looks of things this was in dispute.

 

Good luck with the court case

 

Grumpy

[car2403]

The information commissioners guidance says that they can't register defaults while the account is in dispute. By the looks of things this was in dispute.

 

It also says they should have evidence of the default occurring, to prove the basis of the default - O2 have neither a binding contract, nor evidence of my default of that contract, (or its implied unfair terms) so will struggle on these points.

 

They have just called to advise that I will receive their skeleton arguments by email on Tuesday, due to the bank holiday weekend. Which is interesting, of course, as they haven't submitted anything as ordered by the Court, so what is their skeleton argument going to be based on exactly? Probably the submissions made during the Judgment set aside hearing, but the Judge won't be happy with that as he specifically told them he needs it in the right format, and that wasn't.

 

[car2403]

I've received O2's submissions by Special Delivery.

 

It's quite lenghty and I need to scan it all in and post it up for you to see.

 

There is a very interesting section (read paragraph 22 once it's up - hint, hint!) that refers to this thread specifically, makes reference to the number of visitors/subscribers it has had, and then refers to this site in general terms, although no names are mentioned.

 

It's just a shame that O2 obviously spend so much time checking out forums like this that they can't put so much effort in to resolving our compliants as effectively.

 

If only they realised that this was about my issues with them and that - had they been reasonable with me throughout - (go back to the start of the thread to see just how unreasonable they have been) that this wouldn't be getting such publicity and interest and therefore be generating more complaints for them as a result.

 

Clearly someone needs to attend a school of Customer Relations, me thinks.

 

It seems they want to bamboozle the Judge with the obviously huge impact this claim, the result, this thread and this site could have on them, rather than focus on the fact they don't have a leg to stand on. The Judge obviously won't let that effect his decision, but it's a dirty tactic to be employing at this late stage, I feel.

 

I also think this is actually more damaging to their reputation than they could ever imagine - even if they win, that can't now be reversed.

 

Well, they've opened the can of worms, so I can't wait to see the attempts to put that lid back on to salvage what they have left.

 

I've made my own judgment of their intentions on including it, which I'll reserve for the Judge on Friday so as to not give the game away.

 

I will post all this up for you to read and mull over in the meantime, so I'd appreciate anyone subscribed to this thread putting their views across once it's posted up - this won't stop O2 continuing with their unlawful behaviour, but it will prepare everyone taking them on for the dirty tactics that they will employ when you do take them on.

 

I will also be seeking costs when I do win also - that totals £350 on each claim, x2, so £700 in total.

Edited May 24, 2008 by car2403

[sortingitout]

Very interesting, i am looking forward to reading this.

 

Shame on you 02

[pt2537]

yeah very interesting indeed

 

i too cant wait to see their submissions bless their cotton socks

[car2403]

You'll be more than interested - (just uploading to photobucket now!) you'll laugh your socks off when you see them refer to a ICO complaint that they've received from someone else about having the wrong name on the account, then relying on that as evidence of the ICO saying they can process this default about me?

 

It's all getting very bizarre - and very desperate - IMHO.

 

[car2403]

Here we go;

 

WITNESS STATEMENT OF

IAN ROY

 

1. I am Ian Roy and am the Regulatory Manager for the Defendant and based at Wellington Street, Slough, Berkshire SL1 1YP. I make this statement on behalf of the Defendant in support of its defence. The matters set out below are within my own knowledge, except where I indicate to the contrary. I have kept the numbering of exhibits consistent with previous witness statements provided in this case.

 

(A) Background, Contractual terms and detail of the claim and counterclaim

 

2. On 1 September 2004, the Claimant placed an order to upgrade his mobile phone. In so doing the Claimant completed all the relevant contractual procedures and a record of his purchase was recorded by the 02 purchasing system as evidenced in the attached screenshots and marked Exhibit 02/01. This formed a binding agreement between The Claimant and 02.

 

3. The Claimant was sent the Defendant’s Pay Monthly Consumer Service Terms & Conditions (“the terms and conditions”) upon completing the order over the phone. This is evidenced by the attached screenshot showing that the Defendant’s literature was sent out with the goods (exhibit 02/02). The Claimant then had 14 days in which to cancel the upgrade in line with distance selling regulations. As can be evidenced by his usage and bill ledger, he continued to use the service beyond the 14 days and therefore was bound by the terms and conditions. A copy of the relevant Terms and Conditions is attached and marked as Exhibit 02/03.

 

4. Clause 16.3 of the agreement provides:

16.3 You authorise us to use and disclose, in the UK and abroad, information about you and your use of the Service and how you conduct your account for the purposes of operating your account and providing you with the Service or as required for reasons or national security or under law to our associated companies, partners or agents, any telecommunications company, debt collection agency or credit reference agency and fraud prevention agency or governmental agency 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, SLJ 4DX or, if you have eCare, at mycareo2mail. co. uk, stating your full name, address, account number and Mobile Phone number.

 

5. It is accordingly averred that the Claimant consented to the disclosure of his personal data under the agreement.

 

6. Clauses 7.1 and 8.1 of the Terms and Conditions provide:

7.1 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 8.1 or 6.4 apply to you.

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

 

7. Clauses 7.3and8.2provide:

7.3 If we bar your service because you break this Agreement, the

Agreement will still continue...

8.2 This Agreement may be ended either by you or us giving at least 30

days’ notice. You must pay all Charges incurred during the Agreement.

 

8. The Claimant failed to pay the invoices from 8 June 2004 to 16 November 2004 (see Exhibit 02/05). Following reminders sent in October 2004 and November 2004 (see Exhibit 02/05) urging payment and warning of the consequences of non payment of the outstanding invoices (a copy of such letter can be found under Exhibit 02/06), on 18 November 2004, 02 exercised its right under Clause 7.1 of the agreement and disconnected the Claimant for non-payment of charges on his account. At the date of disconnection, the Claimant had an outstanding balance of £389.95

 

9. Following small repayment, on 24 January 2005 a default for £379 was registered against the Claimant’s credit file. This was carried out as per the credit reference agencies’ reciprocity requirement in accordance with our standard default loading procedures.

 

10. By virtue of Clause 7.3 and 8.2, it is further averred that the agreement was not, as is alleged by the Claimant, terminated on 18 November 2004, and the Defendant still had the consent to store, process and/or disclose the Claimant’s personal data by virtue of clause 16.3 of the agreement.

 

11. In summary, the Claimant is seeking:

a. £1,000.00 in compensation under section 13 of the Data Protection Act 1998.

b. An order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies.

c. Although not pleaded, it would also appear from the body of the particulars that the Claimant may also be seeking a court order requiring the Defendant to comply with a Statutory Notice under section 10 and section 12 of the Data Protection Act 1998 to cease the processing of his personal information

 

12. The Defendant counterclaimed for the amount of £315.95 which was the outstanding debt on the account opened by the Claimant. This amount has now been settled in full and the Defendant has filed a discontinuance form.

 

(B) Section 14(1) and 14(3) Data Protection Act 1998 (Data Protection Act)

 

13. Section 14 of the Data Protection Act provides:

14 RectfIcation, blocking, erasure and destruction

(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.

(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 not5 third parties to whom the data have been disclosed of the rectfication, blocking, erasure or destruction.

 

14. It is averred that section 14(1) only applies where data held about the data subject is inaccurate. The Defendant in this case has maintained accurate records throughout. This is evidenced not only by the records of the ledger and outstanding invoices for the Claimant but also the fact that the Defendant entered into a prior arrangement to reduce the outstanding bill by paying small monthly instalments from 1 March 2005 until 4 October 2007.

 

15. Finally the Claimant has now settled the Defendant’s counterclaim in full which further indicates that the records have been accurate all along.

 

© The Claimant’s Statutory Notice pursuant to Section 10 under the Data Protection Act 1998 (“DPA”) (“Section 10 Notice”)

 

16. The Claimant has sought to enforce a section 10 Notice on the Defendant by way of service dated 30 September 2007. Section 10 of the DPA provides:

10 Right to prevent processing likely to cause damage or distress

(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, orprocessingfor a specied purpose or in a spec,fIed manner, any personal data in respect of which he is the data subject, on the ground that, for specIed 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.

(2) Subsection (1) does not apply—

(a) in a case where any of the conditions in paragraphs ito 4 of

Schedule 2 is met, or

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

by order...

(3) The data controller must within twenty-one days 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 unjusq,fIed and the extent (if any) to which he has complied or intends to comply with it.

 

17. By way of response, the Defendant stated that it was not bound to comply with the notice and relied on the exemptions listed in Schedule 2 of the DPA which state interalia:

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...

 

18. The first condition mentioned in Schedule 2 DPA 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 subsisted, the Defendant still had the authority given to it by the Claimant to process his personal data, by virtue of Clause 16.3 of the Agreement.

 

19. The second condition in 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) . . . “. In its response to the Section 10 Notice, the Defendant pointed out that under the terms of the agreement, the Claimant had an outstanding obligation to pay consideration for the services used and therefore the Claimant’s data was processed for the purposes of operating the account and credit control and thus necessary for the performance of the contract under the principle of reciprocity imposed by the credit reference agencies. It is therefore denied that the Defendant acted in any way unlawfully or in breach of contract.

 

20. Finally, under paragraph 3 of Schedule 2 of the DPA, the Defendant (a private company) is required under the Companies Act 1985 sections 221 and 222 to retain accounting and financial information for a period of 3 years, including details of monies expected and liabilities.

22].—fl) Every company shall keep accounting records which are sufficient to show and explain the company’s transactions and are such as to—

(a) disclose with reasonable accuracy, at any time, the financial

position of the company at that time, and

(b) enable the directors to ensure that any balance sheet and profit

and loss account prepared under this Part complies with the

requirements of this Act.

(2) The accounting records shall in particular contain—

(a) entries from day to day of all sums of money received and

expended by the company, and the matters in respect of which the receipt and expenditure takes place, and

(b) a record of the assets and liabilities of the company.

222.—(]) A company’s accounting records shall be kept at its registered

office or such other place as the directors think fit, and shall at all times be

open to inspection by the company’s officers.

(5) Accounting records which a company is required by section 221 to keep shall be preserved by it—

(a) in the case of a private company, for three years from the date on which they are made, and

(b) in the case of a public company, for six years from the date on

which they are made.

This is subject to any provision contained in rules made under section 411 of the Insolvency Act 1986 (company insolvency rules).

 

21. The Defendant therefore avers that it is entitled to continue to hold information about the Claimant whilst the contract subsisted and in any event whilst any outstanding liabilities were recorded against the Claimant.

 

22. However, it should be brought to the attention of the court that the Section 10 Notice is only being put forwards as a claim in order to remove the default on the Claimant’s Credit file. This file is managed by third party companies, none of which are parties of these proceedings. I would like to note that the Defendant regularly receives similar complaints, all from individuals with track records of not paying their bills on time. The internet has enabled the dissemination of misleading stories relating to default credit entries and how to get rid of them by using provisions within the DPA. The Claimant’s own ‘blog” website details every step that has been taken in this case and has had in excess of 2500 visits. This has led to copycat complaints being sent to the Defendant all with the identical complaint letter which features in the Claimant’s particulars of claim. The wider implications on the credit rating system of this country should therefore be taken into consideration when assessing the merits of this claim.

 

23. This entire claim is about removing a default entry from a credit file held by a few credit reference agencies. These defaults have been filed in a consistent industry wide manner for many years based upon the principle of reciprocity whereby the credit reference agencies only allow companies to carry out credit vetting of customers if credit history is then filed regularly and according to specific standards. I should bring to the court’s attention the Information Commissioner’s (“Information Commissioners Office”) Guidance note entitled: “Filing defaults with credit reference agencies” (“Guidance on filing”) (Exhibit 02/07) in particular paragraphs 6, 7, 8 and 11 which refer to such industry wide practices and provides guidance on timeframes for filing defaults. These have formed part of the credit reference agencies standard procedure (and by implications the Defendant’s) and are outlined in exhibit 02/08 for many years.

 

 

 

24. A recent complaint to the Information Commissioner (“Information Commissioners Office”) by an individual using the same letter of complaint as that used in the particulars of claim in this case, led Information Commissioners Office to conclude that 02 had not breached any rules and dismissed the complaint see exhibit 02/09.

 

 

 

25. The outstanding balance has now been settled by the Claimant. This indicates strongly that there has never been any dispute as to the existence, nor the accuracy of the debt and therefore by implication the accuracy of the record on the Credit reference agencies’ databases. Although this alters the nature of the Claimant’s claim somewhat, the reasons stated above in paragraphs 16 to 20 as to why the data should still be processed by the Defendant still apply.

 

 

 

26. I would like to make clear that the Defendant has updated the status on the Claimant’s credit file to reflect the fact that the debt has been satisfied in accordance with the Information Commissioner’s (“Information Commissioners Office”) Guidance note entitled:

Filing defaults with credit reference agencies” (Guidance on filing) paragraph 49. In due course (maximum 3 months) the Defendant shall cease to process the Claimant’s data out to third party credit reference agencies.

 

 

 

27. Indeed, the processing which the Claimant is claiming is causing him distress is that which is carried out by the third party credit reference agencies. In fact it is the publishing of his credit file which the Claimant is complaining about. The Claimant’s complaint should therefore be addressed to the relevant data controller. The Defendant fails to see how evidencing the accuracy of a “default” held in an independent system by an independent controller in accordance with the guidance provided by the Information Commissioners Office could cause the Claimant substantial distress or substantial damage.

 

 

 

28. If indeed substantial damage or substantial distress has been caused, which is denied, it is entirely warranted, as stated in the Information Commissioners Office’s guidance on “Filing defaults with Credit reference agencies” the specific section to be noted is included on page 4, paragraph 5 (Exhibit 7) states:

5. Information about borrowers is filed by lenders with credit reference agencies for three reasons.

• To help lenders make responsible lending decisions.

• To help lenders trace and collect overdue debts.

• Occasional prevention offraud and money laundering.

 

 

 

29. The Information Commissioners Office regularly advises on the area of debt and one of its fundamental principles is that any default should be fully documented and may in fact go back many years as is evidenced by a guidance note issued on 6 November 2006 and entitled: “Credit agreements — data sharing” (Exhibit 02/10) which states that it is lawful for organisations to share data, without the consent of the data subject, with credit reference agencies for a period of 6 years after the agreement has ceased (see exhibit 02/10):

“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.”

 

30. This Information Commissioners Office Guidance Note states that 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.

 

 

 

31. The Information Commissioners Office’s concern to ensure that credit history is properly substantiated and is processed to a common and consistent standard (see para 6 of the “Guidance on filing”) is further evidenced in the “Guidance on filing” at paragraph 39 (exhibit 02/07) which states “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 file.”

 

 

 

32. To be required to stop the processing (which taken in its widest sense could mean deletion of all the Claimant’s records and is the essence of this claim) would clearly cut across the Information Commissioners Office’s guidance to substantiate credit histories. The Information Commissioners Office recognises the important public policy role which credit reference agencies play. Therefore, notwithstanding the substantial damage or substantial distress which are claimed by the Claimant, the facts remain that the Claimant did not pay his bill, was reminded a number of times to settle his debt, was made aware of the potential consequences of not doing so and at all times the Defendant kept accurate records of all these events, the Defendant avers that any such substantial damage or substantial distress would be warranted and to comply in full with section 10 notice would be “unjust” within the meaning of section 10.3 of the DPA.

 

(D Section 12 DPA

 

 

 

33. 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 signfIcantly 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 (1) has effect, a decision which sign Icantly 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 notfj’ the individual that the decision was taken on that basis, and

(b) the individual is entitled, within twenty-one days of receiving that not fIcation 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 contract, or

(iii) in the course ofperforming such a contract, or

(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

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

 

 

 

34. 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)

 

 

 

35. The Claimant has failed to show how section 12 is relevant to this claim and is requested to clarify this point.

 

 

 

36. Notwithstanding this, it is submitted that for the same reasons as those given above at paragraphs 5-10, 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). The Claimant has also 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.

 

 

 

37. It is therefore averred that any section 12 notice would be of no effect by virtue of subsections 6 and 7 of section 12.

 

38. In addition it is denied that 02 is carrying out automated decision making within the meaning of the DPA in respect of the Claimant’s credit worthiness. Decisions relating to the Claimant’s credit worthiness contain a clear manual process by which they can be appealed or stopped pending investigation and thus do not fall within the ambit of section 12 of the DPA.

 

 

 

(E) Section 13 DPA

 

 

 

39. Section 13 of the DPA provides:

13 Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to

compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to

compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing ofpersonal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a

defence to prove that he had taken such care as in all the circumstances was

reasonably required to comply with the requirement concerned.

 

 

 

40. It is averred that section 13 does not apply in the current circumstances, as it is denied as outlined in this Witness Statement that the Defendant has contravened any DPA requirements as particularised by the Claimant:

a. Non compliance with section 10 DPA

b. Non compliance with section 12 DPA

c. Entitlement to an order for removal of his data under section 14 DPA

d. Breach of Principle IV in relation to keeping accurate records

 

 

 

41. The Claimant has also failed to demonstrate he has suffered any substantial distress or how he has suffered any substantial damage and to what quantum.

 

 

 

42. Finally it is submitted that the Defendant has taken reasonable care in all the circumstances to ensure it complies with the requirements of the DPA and the guidance provided for by the Information Commissioners Office relevant to this claim.

 

 

 

CONCLUSION

 

43. For all of the above reasons, it is respectfully contended that Defendant has acted in accordance with the DPA, the Information Commissioner’s guidance, industry practice and the principle of reciprocity in relation to the matters included in the Claimant’s particulars of claim.

 

 

 

44. For the above reasons, the Defendant should not be found to have been in breach of contract.

 

 

 

45. The Defendant is effectively seeking to mask his default and credit history from other lenders. Because of the widespread awareness of this case it is important to consider the credit rating system as a whole and its public policy considerations.

 

 

 

46. In the circumstances, it is submitted that the Claimant is not entitled to the relief sought and the Defendant respectfully requests judgment in its favour.

 

 

STATEMENT OF TRUTH

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

Signed on behalf of the Defendant

 

 

The exhibits are;

 

1 Record of purchase - Screenshots;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage3.jpg

 

2 Screenshot of O2 Order process demonstrating literature was sent out with the goods;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage5.jpg

 

3 02 Terms and Conditions dated April 2004;

 

Your airtime contract - Terms & Conditions - O2 (read under "Standard business terms and conditions"

 

4 [bLANK]

 

5 Screenshot listing reminders sent to the Claimant and ledger;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage18.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage19.jpg

 

6 Examples of standard letters sent out to customers upon failing to pay their bill;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage22.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage23.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage24.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage25.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage26.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage27.jpg

 

7 Information Commissioner’s (“ICO”) Guidance note entitled: “Filing defaults with credit reference agencies”; (‘Guidance on filing”)

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

8 Diagram outlining the filing of defaults with credit reference agencies;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage30.jpg

 

9 ICO official request for information Case Reference: RFA0180530;

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage32.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage33.jpg

 

http://i279.photobucket.com/albums/kk160/car2403/O2%20default%20removal/Exhibitpage34.jpg

 

10 ICO guidance note issue on 6 November 2006 and entitled: “Credit

agreements — data sharing”;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

 

 

Let the thrashing begin... !!!

[Penfold92]

I got Amber's stuff through today when you have finished laughing at yours have a butchers mate...

 

Prabs

[sortingitout]

22. However, it should be brought to the attention of the court that the Section 10 Notice is only being put forwards as a claim in order to remove the default on the Claimant’s Credit file. This file is managed by third party companies, none of which are parties of these proceedings. I would like to note that the Defendant regularly receives similar complaints, all from individuals with track records of not paying their bills on time. The internet has enabled the dissemination of misleading stories relating to default credit entries and how to get rid of them by using provisions within the Data Protection Act. The Claimant’s own ‘blog” website details every step that has been taken in this case and has had in excess of 2500 visits. This has led to copycat complaints being sent to the Defendant all with the identical complaint letter which features in the Claimant’s particulars of claim. The wider implications on the credit rating system of this country should therefore be taken into consideration when assessing the merits of this claim.

 

 

I skipped to that bit, off i go to read.

[car2403]

I'm sure I've read a thread on CAG regarding an O2 account that is in the wrong name - I'd love to hear from that person making that complaint to the ICO, as I'm sure that they (the complainant and the ICO alike) would like to know that O2 are sharing that data with third parties.

 

If that person is on this site, reading this thread, could you PM me please, perhaps?

[car2403]

Part of their reply states that they aren't now processing the data - the CRA is.

 

I remembered writing to Equifax and Call Credit, at the same time as sending O2 the s.10/s.12 Notices. I've hunted out Equifax's reply;

 

The Client concerned has investigated the accuracy of the information above and have verified its accuracy. Therefore, this information will remain unchanged.

 

This information is supplied and owned by our subscribing clients and as such we do not have the ability to amend the information without written authorisation from them to do so. If you are unhappy with the outcome of your dispute we suggest that you contact the company concerned with any additional enquiries and they will advise you further.

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our “Ask a Question” facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

 

I'm sure I did receive the same reply from Call Credit, but I can't find that letter - yet...

 

The Judge is going to love this, isn't he?

[Penfold92]

absolutely, check my black horse thread I also have it in writting from the CRA that ONLY the creditor can alter and remove data!

[sortingitout]

Experian - Some of my account information is wrong. How do I get it changed?

Some of my account information is wrong. How do I get it changed?

 

 

If you think any details are incorrect you should contact the organisation or lender concerned. The organisation will amend their records (if applicable) and tell all credit reference agencies of these changes. The agencies (Experian, Equifax and Callcredit) will then update the data they hold.

Experian - Who owns credit account information?

 

Who owns credit account information?

 

The information belongs to the lenders that store the information with the credit reference agency. Credit reference agencies are unable to change these details without permission from the lender.

Experian - How often is credit account information updated?

 

How often is credit account information updated?

 

Lenders (who actually own the credit account information) update our records every month.

[car2403]

Experian - Some of my account information is wrong. How do I get it changed?

Experian - Who owns credit account information?

Experian - How often is credit account information updated?

 

How often is credit account information updated?

 

Thanks, this will prove useful in undermining their argument.

 

I have the same information from Equifax and Call Credit.

[Penfold92]

LOL so they are accusing of copying someone elses claim and doing the same to them as they did ...right?

 

That's brilliant, "throwing rattle out of the pram" really springs to mind! What are they saying we can't use the same or similar POC's? Didn't 1000's copy the bank charges ones?

 

Go get em tiger!

 

Prabs

[car2403]

LOL so they are accusing of copying someone elses claim and doing the same to them as they did ...right?

 

Actually, I think they are accusing me of writing the POC, then encouraging others to complain in the same way by using this thread.

 

I can't take the credit for the POC, it's all Surleybonds' fault, not mine.

 

[Penfold92]

probably quite close to the one we are putting together on the black horse thread too then...lol if we succeed ALL the creditors will be complaining like babies...