Penfold V Amber Home Loans

[Penfold92]

Sorry not replied earlier been at the Carnival with the kids...

 

Yes I did Zoot, I was specific, I did not breakdown, but gave a figure. I did specifically say in the POC's that this was for continued processing, stress and humiliation. They are trying to get that struck out and continue with the claim for mortgage penalty charges.

 

I actually went for £3000 in the end, which I can show

Prabs

Edited June 14, 2008 by Penfold92

[zootscoot]

Thats good because if you hadn't stated the amount claimed it would automatically be multi tracked.

 

As we have discussed earlier on this and other threads, the Data Protection Act allows for not necessarily specific proof of damage, but the likelihood of that damage too.

This is not so. You will need to specifically plead and prove damage for a claim under the Data Protection Act. The Kpohraror v Woolwich claim was a claim for wrongful dishonour of a cheque (a claim for breach of contract) where general damages for loss of reputation are allowed. Claims under DPA only special damages are recoverable. See:

 

 

Johnson v Medical Defence Union [2007] EWCA Civ 262 (28 March 2007)

 

Reputation

Unlike "distress", this head of loss is not envisaged in the 1998 Act, and there is no reason to think that it is inherent in the provisions of the Article. The Judge rejected on the facts a number of specific claims under this head, and his decisions are not appealed But in addition, and no doubt inspired by the English law of defamation, the appellant, although he did not prove any actual loss of reputation, much less any financial loss or other tangible detriment that had flowed from it, nonetheless relied on assumptions that his reputation must have been damaged and that a financial value must be put on that damage. I am certainly not prepared to import those assumptions, peculiar to, and in the view of some an unedifying feature of, the English law of defamation into this wholly different chapter of the law. Mr Johnson's inability to prove any loss destroys this claim, as the Judge rightly held. Nor can English law be said in that regard not to respect its obligation to give compensation for loss of reputation caused by unfair processing of automatic data. If an Englishman thinks that that has occurred he can always actually sue in defamation, with the prospect of recovering far more, and on a less exacting basis, than he would find in other member states of the Community.

 

This won't be an issue at the set aside hearing unless they have applied for summary judgment.

 

They only have to show that they have an arguable case to put to the court. They do not have to produce the evidence at this stage. That will be for the full hearing.

[Penfold92]

They have not applied for summary judgment and have in their draft orders to set the claim as small claims track...

 

Should I not comment about damages if asked then or just say I can show these, but this is not a hearing for me, but by the Appellant to set aside the judgment...

 

Also what about also referring to the paragraph from Kpohraror case where Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

Prabs

[car2403]

This is not so. You will need to specifically plead and prove damage for a claim under the Data Protection Act. The Kpohraror v Woolwich claim was a claim for wrongful dishonour of a cheque (a claim for breach of contract) where general damages for loss of reputation are allowed. Claims under Data Protection Act only special damages are recoverable. See:

 

Johnson v Medical Defence Union [2007] EWCA Civ 262 (28 March 2007)

 

Isn't this a breach of the contract though? By processing incorrect or inaccurate data, or, processing it beyond the end of the contract, that is surely a breach of the contract itself?

 

If so, Kpohraror does apply, along with this little lot as well;

 

Lookinforinfo has just pointed me to a case ( Thanks mate this is very useful tome)that I believe will be of great importance not only to me but others who are fighting incorrect defaults on their credit file, so I have put this in my letter to Experian also I have put this at the end and and told them to take special note of the sections that appertain to my claim against Experian.

I've copied the relevant sections from the judgement summary which is very long but will prove useful to others also. I've highlighted special sections.

Although in Scotland the cases referred to this summary will be very useful in persuading a Judge to side with you.

 

sparkie

 

Richard Durkin

 

against

 

DGS Retail and HFC Bank

1. Counsel for the pursuer submitted that in addition to the actual losses which he had sustained the pursuer had suffered a general loss to credit along the lines recognised in King v British Linen & Co (1899) 1F 928 and Wilson v United Counties Bank Limited. [1920] AC 102. He submitted that this general loss to credit sounded in damages over and above any actual damages which the pursuer may, as he had done here, sustained. Counsel for the second defender submitted that any award for damages to credit was circumscribed or limited by the actual damages sustained.

 

2. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

3. Wilson v United Counties Bank Limited was a case brought by an individual (Wilson) and his trustee in bankruptcy against Wilson's bank. The defenders' negligent handling of the plaintiff's estate whilst he was away on military service caused an actual loss to the estate, and also resulted in the pursuer, Wilson being made bankrupt. The trustee in bankruptcy was held entitled to recover actual losses caused by the negligent management. There was only one claim in respect of damage to credit, namely the fact that Wilson was made bankrupt when, had the defenders managed his affairs prudently, he would not have been. There was no claim that Wilson had suffered any specific loss to his credit by virtue of the bankruptcy, but the fact of bankruptcy was recognised as a serious injury to his general credit standing. This resulted in an award in 1919 of £7,500. The case, as was also the case with King v British Linen, was based on breach of contract and not negligence. The Lord Chancellor, Lord Birkenhead, said of the type of case where a banker, though his customer's account is in funds, nevertheless dishonours the customer's cheque, that the refusal to meet the cheque is so obviously injurious to the credit of a trader that the latter can recover without allegation of special damage reasonable compensation for the injury done to his credit. He applied that principle to the circumstances of Wilson's case where a defendant had expressly contracted to sustain the financial credit of a trading customer and breached that obligation. At page 120, Viscount Findlay said that the fact of bankruptcy must injure the credit of the person made bankrupt, apart from damage to the estate. He continued "In an action for negligence against a solicitor leading to the bankruptcy of his client even if due to fortuitous circumstances the estate had not been damaged, it seems on principle that the jury might give substantial damages for injury to the credit of the person made bankrupt." Later on he said "It was urged that proof must be given of special damage in order to sustain the verdict on this head for more than nominal damages. I cannot see on what principal this contention rests. The mere fact of bankruptcy imports damage to the credit of the bankrupt. It is a natural consequence, and it is for the jury to assess the damages for such a slur."

 

4. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v WoolwichBuilding Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

 

5. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

6. Evans LJ went on to consider the issue of special damages separately. There is, however, nothing in the judgment of Evans LJ to indicate that had the special damages claim been made out he would not have made an award in terms of the general damage claim. Lord Justice Waite and Sir John May each agreed in all respects with the judgment of Lord Justice Evans

 

7. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

8. In these circumstances and standing such a recent decision where the claims appear to have been treated as being capable of existing together, I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

Mitigation of loss.

9. The only case on record for the second defenders on the question of mitigation of loss is that the pursuer did not call upon the defenders to correct the entries that related to the pursuer's account with them. I am satisfied that he did this on many occasions. In his words he "pleaded` with them". The pursuer was cross examined about his failure to utilise the somewhat tortuous statutory notification procedures which were said to be open to him to have the registers changed. There was no evidence led to indicate how these matters were dealt with in practice, how long they took to reach a final conclusion or the likelihood of the pursuer being successful in utilising them. Given the total absence of record for the point and the lack of any evidence concerning it I disregard it. I am in any event quite satisfied that the pursuer believed he had done all he could do to get the registers corrected.

 

I'd also be arguing that s.10 (possibly s.12) has been infringed, (which doesn't require damage to have been caused, only that it is likely to have been or be caused) so that showing damages could be recoved under s.13 DPA 1998, regardless of a breach of contract, as an alternative.

 

Your views, zootscoot?

Edited May 27, 2008 by car2403

[Penfold92]

That's where I was coming from as well...

 

The only problem is they cliam not to have received my S10 request either... a pattern emmerging me thinks...

 

Prabs

[zootscoot]

Should I not comment about damages if asked then or just say I can show these, but this is not a hearing for me, but by the Appellant to set aside the judgment...

 

Also what about also referring to the paragraph from Kpohraror case where Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

 

You shouldn't need to demonstrate your actual loss at the set aside hearing. That would be at the final hearing. The Kphoraror case is not relevant to your claim as it stands as it is a claim for breach of contract.

If you can demonstrate a breach of contract then yes you could use Kpohraror to make a claim for general damages in addition to any loss you could actually demonstrate as flowing from the breach.

You would need to base your claim on breach of contract rather than under the DPA. So you may need to amend your POC.

[Penfold92]

So if I understand your post above, how are we supposed to prove damages via the Data Protection Act then?

Edited June 14, 2008 by Penfold92

[zootscoot]

You can not bring an action for any offence committed under the Act in the Civil courts. You can at most report them to the ICO and hope that they will prosecute.

 

In so far as proving damage you will need to show that you have been refused credit at a certain rate and demonstrate the difference of interest rate that you had to accept in consequence of the refusal. Also add any other additional charges eg if there was a higher arrangement fees etc.

[car2403]

I would have thought that Kphoraror would have had a cross read in any case, putting aside the issue of breach of contract for a moment, in that a dishonoured cheque effected his credit reputation (rating) and that, if you can show the default was inaccurate, or that the ICO's advice on filing it (no notice of default issued, for example) wasn't followed, then that would have a similar, if not worse, effect on your credit rating as a result.

 

I'm using Kphoraror to show that £1k in damages is sufficient for the reasons stated in the Judgment - customers rely on their credit rating, it has been damaged by a default that can't be substantiated and that, even though special damages can't be shown, (creditors not telling you why you've been turned down or why your rate is higher as its confidential) but damage has occurred nonetheless.

[zootscoot]

Thats fine providing you are not relying on it for a claim under the Data Protection Act as the Court of Appeal precedent in Johnson v MDU would apply.

[Penfold92]

OK, so if they go for me tomorrow regarding the damages part of the claim (as they are trying to get that struck out) shall I show them my proof?

 

Sorry, I just am prepared for the mortgage penalty charges bit, but feel under prepared if they start questioning me on the damages part...

 

Prabs

Edited June 14, 2008 by Penfold92

[car2403]

I don't think that's necessary Prabs - if that happens, your response should be that you have substantive evidence that corrobarates your view that you have been damaged by the processing and, should the Court find that to be unlawful, you have authority to reclaim the damages.

 

The Court won't look at the evidence (or, if they do, it will be a quick look to establish if you're right ) at this hearing - you're just establishing that you do have a case which needs to be heard at a full hearing.

 

Don't get me wrong, they can claim you don't have a prima facie claim for damages, but the more you can complicate your reply tomorrow, the greater the chance it will have to be heard at a final hearing. The only decision that will be made tomorrow is that of is there a case to be heard, or are you pulling a fast one?

[Penfold92]

Hi guys,

 

Does anyone know the format of these set aside judgment hearings? Chris, you have had at least one, do I have to wait for the defence to finish before saying my peace or can I interupt at each point discussed?

 

Thanks,

 

Prabs (A little nerveous today...)

Edited June 14, 2008 by Penfold92

[car2403]

Depends on the Judge, really.

 

He will want to look at there reasons for a set aside in turn - non-receipt of the claim first, as that's easier to deal with, then the defence. At this point, you don't have to say anything, as it's all the Judge/them.

 

If he decides to set aside on the non-receipt issue, (which is likely) you should make sure he looks at the defence as well - hopefully he will, as it's part of their submissions anyway. This is very important as it will have an effect on the future directions that will be put in place.

 

To be honest, the set aside is a given on the non-receipt issue - the best you can do is ask the Judge to consider the defence, raise any issues you have with it, in that you are concerned it isn't detailed or has any basis in law and let him make that decision. From that you need to get some decent directions going forward - for instance, I'd ask Amber if they'd agree to allocation to the small claims track and dispose of the need for a AQ as a result as well. (You will still need to pay the AQ fee, though)

 

Good luck...

[Penfold92]

Cheers mate, I am trying to think of some questions to ask regarding the damages side of things so the judge sees the scope for damage...

 

"Can you explain why the Defendant did not respond to our request under Section 10/12 of the DPA?"

"Are you aware this is a serious breach of the Act?"

"Are you aware of the signifigance of mortgage arrears to a persons credit?"

"Would you not agree that an arrangement that is correctly discussed and documented should not be simply classified as "arrears"?"

"Do you know in what circumstances we made the arrangements with the Defendant? Have you read the screen shots?"

Do you not think that this unfair and inaccurate marking on our Mortgage Statement will have a knock on effect on current and future credit?

Where does it say in the contract that the Defendant can continue to share our financial data without our express permission?

[car2403]

Not sure if this is too late, but I agree that these are the questions that need answering - I just can't see them being answered, or fully considered, at this hearing.

 

The decision being made is whether the fact the claim wasn't received, (likely) or whether the defendant has a realistic prospect of success in defending it, (less likely, but likely enough) means the judgment should be set aside.

 

It will be set aside, IMHO

[Penfold92]

thanks mate, but decent enough questions if I can get them in?

 

Prabs

[car2403]

You can ask them, but I don't expect you'll get answers at this stage

[Penfold92]

OK just got back from Court this is how it went...

 

Got there early and defence counsel was there already...Named Mr. Thompson (Hello Mr. T!). I greeted him and he was surprised by that I think...

 

Anyway he then produced his outline submission (yet another load of papers!)

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline1.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline2.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline3.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline4.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline5.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Outline6.gif

 

 

It worried me a bit as it is all a bit scary the first time I guess....I soon got into my stride making a few notes (see scribbles) and thought ok not too bad. He also gave me a judgment from Johnson V Medical Union (http://i306.photobucket.com/albums/nn275/pmflkapskycom/JohnsonVMedicalDefenceUnion.gif) which worried me a bit as I had not read that one before...I just thought well I can try to use a few other cases in countering it...I did not really understand what the case was about and given it was quite thick I did not really have time to read it...

 

Anyway called in and Judge was a nice man who said hello and started with the defence. He first pointed out the letter we wrote to the Court re their intimidating letter...Mr. T read it but had not seen it before...He first discussed the issue to the claim not being received and very quickly the Judge got Mr. T to admit the judgment was indeed "A regular judgment" and therefore the defendant needs to sort their mail room out! I loved it!

 

I should point out that I did try to say a few things early and the judge said "be quiet!". I felt like I was back a school! Wait to be spoken to is my firm opinion!

 

Then he went on to the real prospect of defending, Mr T went on about his submissions and referring to tbe bank charges case that these do not breach the UTCC's. Judge listened

 

He then went onto damages and came up with the Johnson case and defamation of character etc and I was a bit lost here...the Judge however, soon said but this has nothing to do with the claim...Mr T said but the POC's we were sent by the claimant says that was part of it...Judge said well that is not what is in the claim form...oops... did I send them an inaccurate one...It was not on purpose, BUT it was so funny the judge said I should be careful in litigation (but I was genuinely trying to get things resolved quickly by sending them what I had) and even though I was probably helping I got the impression he was not impressed! He then could not believe that Amber and the legal bods had not got a copy from the Court over two months later and said really they had to sort themselves out! And the case they were trying to use was not rellevant here...loved him for that I had NO IDEA WHAT WAS GOING ON!

 

Mr. T was squirming at this point and hesitating like mad! He then went onto the DPA and stating that the K case had no relevance as it was a bounced cheque etc... Judge listened...He then produced a copy of it and gave to the Judge and me regarding Section 10.

 

Judge then asked what I had to say I just clarified that this was a hearing to set aside and nothing more and under 13.4(3) they had to give evidence not just the illusion of a case etc...I said nothing to do with bank charges and they have not supplied any proof to the charges they made against us. I said I could substantiate the damages at trial should I need to...

 

He then said there is an argueable matter and so would set aside, but when Mr. T asked for costs he said no! Mr. T tried to get them allocated to the case itself and judge said no after hearing me say not fair as we had a right to turn up to this hearing after all they cannot say we have no claim but no supply the correct evidence to support it!

 

Defence were then told 7 days to file and serve defence, Mr T jumped out of his skin and said "but 14 days is the norm". Judge slapped him down and said where does it say that? Why? you have filed a few different arguements why do you need more time! Good on him I could not agree more!

 

So all in all not bad for my first appearance I thought! I tried to get AQ's set aside because they have agreed to small claims track too, judge said better this way and see what they come up with! OK...

 

Prabs

Edited June 14, 2008 by Penfold92

[zootscoot]

Great news! Well done

[Penfold92]

Thanks for your help Zoot I will no doubt need much more of it next week! I hope this will pursuade them to settle...Should I entertain the idea of writting to them and offering a reduced sum to settle and close this matter now?

[Penfold92]

...

Edited June 14, 2008 by Penfold92

[car2403]

Good work, Prabs!

 

Dare I say it, but ... "I told you so"...

 

Call my Mystic Meg, if you like.

 

I would send a without prejudice offer of settlement - just to put salt in the wounds. It's easier to accept a settlement offer in 7 days than submit an amended defence, by the looks of it?

[Penfold92]

Judgement is £3500 odd shall I offer £2000 rounded down final offer....Not happy with that, but I guess it will do and save messing about with AQ's and hearing fees etc...

[Penfold92]

What about something like this:

 

Ms Pamela Broadley,

Optima Legal, Arndale House,

Charles Street, Bradford,

West Yorkshire,

BD1 1UN

 

Without Predujuice

 

 

Dear Ms. Broadley,

RE: Claim number 8LU000XXX Penfold V Amber HomeLoans

 

Further to the hearing today to set aside the Judgment my wife and I got against your clients we feel it in the interests of the Court and all parties to settle this matter without further waste of all parties time.

 

We feel adamant that we have a strong case and can indeed prove damages as well as the fact that the charges were indeed penalty charges. However, this will not resolve the matter and so we will offer your clients the opportunity to settle for a rounded down figure of £2,000 without admitting any liability or the accusations in the claim itself.

 

We feel this is a more than reasonable offer given the regular judgment we got against your client. With this in mind we hope we can put an end to this matter now without further delays.

 

We will assume that if you submit the amended defence by 4pm on the 4th June 2008 then your clients are not interested in this fair settlement offer. If your client does indeed take the commercial view that this is the most sensible overall solution then we would expect a response within seven days of this letter to confirm this and enclosing a cheque made payable to ourselves.

 

Yours sincerely,

 

 

Penfolds

Edited May 28, 2008 by Penfold92