Penfold V Amber Home Loans

[car2403]

The issues surrounding DPA rotate around ability to process data, alongside the unlawfullness of processing inaccurate data, IMHO.

 

The Surleybonds letter is the starting point, as processing requires consent - if you've withdrawn that by s.10/s.12, etc, there's an argument that they shouldn't be processing, even if it is accurate.

 

This has worked for me throughout - yes I've been to preliminary hearings, not final ones, but the principles are the same.

 

I reckon the K case does show that inaccurate decisions causing damage should amount to £1k, which doesn't require special proof;

 

Lord Justice Evans;

 

It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth

century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to [his]

credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his

credit' (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). 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.

 

The above conclusions mean that I would dismiss both the appeal and the cross-appeal, and would uphold the master's award

of general damages of £5,550. He said that it was 'somewhat coincidental' that this was £1,000 more than the amount of the

cheque, although I think he meant by this that the appropriate sum by way of general damages could be calculated in that way

in the circumstances of this case. This amount, as he explained, contained some allowance, though not very great, for injury

to the plaintiff's credit and reputation in Nigeria such as was alleged to have occurred. This is consistent with a correct

approach to the award of general damages in a case where the plaintiff claimed that he was an exporter/importer and

therefore the defendants could reasonably contemplate that he might suffer some injury to his credit in a country overseas.

 

I have the complete Judgment, if you want me to send it over drop me an email to car2403@consumeractiongroup.co.uk and I'll send it to you.

 

I think this case could apply (pursuasive, not binding) in that decisions that are accurate, but processed/shared with CRA's without consent (it being withdrawn, or terms declared unfair under UTCCR, for example) nonetheless, could cause damage.

 

It's an interesting concept and not an easy one to get your head around, but once you have one of those "lightbulb" moments, it all falls in to place.

[Penfold92]

I think you are spot on...After all this is not about morals, BUT legal issues, permission to process has been withdrawn therefore any resulting damage from adverse credit is exactly that damaging and so therefore punishable under the Act.

 

No where does it say in the Act, if you have missed payments we have a right to tell everyone about it without your permission....and it will effect your credit rating and mean you will get a higher interest rate and we will continue to penalise you for those couple of months of hardship...

 

Is that what you mean by getting your head round it?

[car2403]

No where does it say in the Act, if you have missed payments we have a right to tell everyone about it without your permission....and it will effect your credit rating and mean you will get a higher interest rate and we will continue to penalise you for those couple of months of hardship...

 

And, don't forget, that any term allowing them to do so will fall foul of the UTCCR, because such a term doesn't go to the root of the contract - the Judge in my hearing said, "does the fact you want to process his data and share it with other organisations mean that you would be unable to supply the service you agreed with him if that term was unfair?". The answer wasn't given, but he did press them by saying, what would be your response if you were to lose on those issues? "I would have to seek instructions from my Client, Sir". Read in to that what you want.

[Penfold92]

Thanks very intersting point and I will steal that in my arguements mate...

 

penfold

[Penfold92]

...

Edited June 14, 2008 by Penfold92

[car2403]

Edited, at the OP's request

Edited June 14, 2008 by car2403
Edited, at the OP's request

[Bona]

Personally I think your all trying to run before you can walk it is a hearing for Amber to set aside a Judgement for penalty charges levied on the account unless I ve re read this I dont think they will be able to prove they have a reasonable chance of sucsess If the Judge agrees with you you get judgement if he agrees with them you will have a hearing in several monthsand honestly from my experience he wont want to know any more than that and all the above wont come into it and if you rabbit on about it and lose you have lost your chance at the actuall tiral , as a matter of interest how many times have you been in court

[car2403]

Personally I think your all trying to run before you can walk it is a hearing for Amber to set aside a Judgement for penalty charges levied on the account unless I ve re read this I dont think they will be able to prove they have a reasonable chance of sucsess If the Judge agrees with you you get judgement if he agrees with them you will have a hearing in several monthsand honestly from my experience he wont want to know any more than that and all the above wont come into it and if you rabbit on about it and lose you have lost your chance at the actuall tiral , as a matter of interest how many times have you been in court

 

I'd disagree with this to an extent - I've been to a Judgment set aside hearing and the Judge was more than interested in the actual claim and the arguments against it, not because it was really that relevant to show that a realistic chance of success in defending it was needing investigation, but more because the Court has a duty to set case management directions at each hearing.

 

While the Judgment set aside decision is usually a foregone conclusion, you still need to have that basic understanding of the foundation of your arguments to get the best result from the hearing, whatever the actual outcome from the application itself.

 

Also, the more complicated the case is, the more chance there can't be a realistic prospect of success - the question is whether the Court will see this as a "rubber stamp" affair, or take it seriously and deal with it effectively. Sadly, this is down to which Judge you get.

[Bona]

I was at a set aside hearing two weeks ago the order the Judge made is infact is not possible they are only solicitors complicate the matter and they cant cope if you progress up the ladder then the judges are far more ofay with the law belive me ive beem as far as the APPEAL COURT INTHE HIGH COURT try not to complicate matters it will cost you in the long run

[Penfold92]

So what are you both saying? I should stick to what I have put on the POC's for now and see how the hearing to set aside goes. After that I can open up tthe damamges debate? After all part of this claim, and the initial part is the penalty charges and as Bona said before they will struggle to show they can successfully defend this as no one has, plus the Test case (albeit slightly different context) will have some bearing on this overall and the mortgage lenders will surely not want any sort of precedent set in the County Court...

 

So stick to the basics then?

 

Prabs

[Bona]

Stick to basics what ever happens you have all sorts of options once this hearing is over

[car2403]

Stick to basics what ever happens you have all sorts of options once this hearing is over

 

Agreed.

[Penfold92]

Ok here is the hearing budle going to be binded and sent out to get to the Defendants sols 7 days before the hearing...

 

Claim Number: 8LU00XXX

 

In the Luton County Court

 

 

 

Between:

Mr. Penfold

(Claimant)

 

and

 

 

 

Amber Homeloans Limited

(Defendant)

 

_______________________

SKELETON ARGUMENT FOR THE CLAIMANT (Litigant in person)

In the proceedings on 28/05/2008 at X.XX relating to the hearing to set aside the Judgment against the Defendant

_______________________

The Claimant will rely on the following submissions:

1. We, Penfolds, the Claimants in this case and respondent to the Defendants application to set Judgment aside, are litigant in person and we make these statements from our own knowledge and research.

2. Due to family commitments only Mr. Penfold will attend the hearing.

 

3. The Claimants refer to the County Court Claim Form, containing the particulars of claim, which was filed by the Claimants with the Court Manager of Luton County Court dated 6 February 2008. The Claimants received a sealed copy of such particulars, along with a Notice of Issue, (N205A) dated 7 February 2008, advising that the Court had sent details of the Claim to the Defendant by first class post. The claim was deemed served on the Defendant on 8 February 2008. The Defendant therefore had until 22 February 2008 to respond to the Claim form. The Claimants submits that the claim was issued correctly as required by CPR Part 7.

 

4. The Defendant failed to reply to the Claim form within the time allowed by Civil Procedure Rules.

 

5. The Claimants subsequently requested Default Judgment under CPR Part 12, as a result of the Defendants failure to reply or acknowledge the Claim form.

 

6. The Court entered Default Judgment on 26 February 2008. (As attached to the Defendants application)

 

7. The Claimants wrote to the Defendant in a letter (recorded delivery number: DW314423XXXGB) dated 3 March 2008, (as attached to the Defendants application) requesting its compliance with the Default Judgment.

 

8. The Defendant has responded by asking the Court to set aside Judgment on the basis that the Defendant did not receive the claim form, nor any notification that a claim had been made against it, and that it has a real prospect of defending the claim.

 

9. This witness statement contains the Claimants response to this application and sets out our arguments for refusal of the application submitted.

 

APPLICATION TO SET DEFAULT JUDGMENT ASIDE BECAUSE THE DEFENDANT DID NOT RECEIVE THE CLAIM FORM NOR ANY NOTIFICATION THAT A CLAIM HAD BEEN MADE AGAINST IT

 

10. The Defendant claims that it did not receive the Claim form served on it by the Court. Further, the Defendant claims to have not received the Default Judgment notification.

 

11. The Court clearly did file and serve the claim form, the particulars of claim and the Notice of Default Judgment with the Defendant, as the Claimants themselves received sealed copies of such documentation.

 

12. The Defendant implies that the Court did not send such documentation to it, or that the method used to serve the documentation failed, thereby relying on the fact that it didn’t receive these documents to request a set aside.

 

13. The Claimants finds this extremely unlikely, as documentation is issued by this Court, using these methods of delivery, on a daily basis, without documentation going missing. The Defendant has included in its evidence all letters sent by the Claimants prior to Court action of which all were sent normal 1st class post and received by the Defendant.

 

14. The Claimants avers that this is an attempt to avoid culpability for the claim under the Judgment, as, given the Defendant is a multinational Company, it seems convenient that they did not receive the Claim form nor the Judgment, yet they did receive all previous letters sent by the Claimants.

15. The address used by the Court to file and serve this documentation is the registered address of the Defendants head office. The Claimants have serious reservations as to how two Court letters could go astray from a Mortgage Lender receiving lots of correspondences each day and probably with some kind of mail room. Did (or does) the Defendant have problems with its post? It is humbly requested that the Court ask for evidence to be submitted at the application hearing to show that there was an ongoing problem with receiving post at the time of the Claim to show that the letters were not merely “ignored” or “conveniently misplaced”.

 

16. The Claimants will submit that the Civil Procedure Rules have been complied with as no documentation been returned to the Court as “undelivered” by Royal Mail. Or is this not the case?

17. The Defendants case rest upon (paragraph 13 in their application) “a real prospect of successfully defending this matter”. We, the Claimants are puzzled as to how they can possibly state this when at the stage of the application they, according to their own application, had not received the Particulars of claim and therefore did not know to what they were defending. We ask the Court how can they possibly be confident in defending what they are unaware of?

 

18. The Defendant is trying to set aside the Judgment based on CPR Part 13.3, which may apply if Amber Homeloans submit an Application Notice to have Judgment by Default set aside or varied - but the Defendant needed to apply "promptly".

 

19. Judgment was entered on 26 February 2008, but the Defendant did not file its Application to set Judgment aside until 11 March 2008. This was a gap of 15 days. In that time, the Defendant had a letter from us asking for payment dated 3 March 2008. We did not have any response to that letter and it took two further telephone calls before a lady called Sarah (from Amber Home loans) called Mr. Penfold to say they would be applying to set aside the Judgment. We would request the Court ask for an explanation of these series of events, along with an explanation as to why this lady managed to call us, in the end, but Amber did not manage to get their application in for a further few days, nor did they request the Particulars of Claim from either ourselves or the Court? Is this normal practice? In our humble opinion this is not acting promptly, merely conveniently stalling the process.

20. The Defendant submits that it has good reason why no acknowledgement was filed and requests judgment be set aside on these grounds. The Claimant avers that the Defendant must have received the documentation from the Court and that CPR has been complied with. In either case, the Defendant has failed to apply to set judgment aside promptly. The Claimant therefore respectfully requests that the Court turn aside the Defendants application for these reasons.

 

APPLICATION TO SET DEFAULT JUDGMENT ASIDE BECAUSE THE DEFENDANT HAS A REAL PROSPECT OF SUCCESSFULLY DEFENDING THE CLAIM

 

21. The Defendant also submits that it has a real prospect of defending the claim due to the following;

 

a. The Claimants were bound by the terms and conditions;

b. The monthly arrears fees were neither unlawful nor unfair;

c. The charges were expressed fully and in clear, indelible language;

d. The Judgment was defective in that the incorrect sum was claimed;

 

22. In relation to each of these points, the Claimants plead as follows;

 

a. The Claimants were bound by the terms and conditions;

 

23. The Claimant submits that the above statement is correct, however, the Claimants are claiming the return of monies taken by the Defendant by way of penalty charges in the form of a combination of failed direct debit fees, arrears fees, exit fees and charges for telephone calls on mortgage account no 478XXXXX. We claim that these cannot be merely included in terms and conditions when these charges relate to the Claimants breaches of the contract signed with GMAC RFC. The Defendant's charges do not amount to a genuine pre-estimate of loss, but instead act “in terrorem” intended to ensure contractual compliance and deter a breach

b. The monthly arrears fees were neither unlawful nor unfair;

 

24. These “charges” are therefore unenforceable contrary to common law as affirmed in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 (see enclosed information regarding that case on page 13-14). The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of i)the Unfair Terms In Consumer Contracts Regulations 1999 particularly, but not limited to, Regulations 5, 6 and 8 and Schedule 2, 1(e) and (o) (page 80-81); and ii) the common law relating to liquidated damages and penalties in contracts.

25. The Claimant would like the Defendant’s counsel to explain why they were told that no charge would be incurred as the Claimants instigated the telephone calls as responsible borrowers? The Claimants enclose a written record from Amber Homeloans when they made their first arrangement with the Defendant (page 15). The Court will see from those notes that indeed no charge was incurred. These charges were added later on to our Mortgage Statements almost in a deceitful way by not informing or in keeping with what we were told. Are the Defendants above contractual Law?

26. The Claimants sent a SAR (Subject Access Request under the Data Protection Act) on the 5th July 2007. The Defendants record of this action is on page 16 of this bundle. Also included is a Direct Debit Suspension Checklist, an example automated letter showing charges and a list of all automated letters sent to us. The Court will clearly see that there is an obvious problem with their system in that their Customer Services Agents agree situation, but their automated systems clearly cannot cope with these (Pages 17 –19). We were also sent all screenshots (Pages 20 – 60) for all our conversations with the Defendant’s staff. The Court will see that there are no mentions of charges and these will be supplied should it be required at the hearing stage. Any further notes confirming the agreement of any charges or any other letters thereafter cannot be submitted by the Defendant as they were not included in the information supplied to us and would therefore be a direct breach and a summary offence under the Data Protection Act.

27. Further to this evidence showing that the Claimants were actually contacting the Defendant regularly and sticking to their agreements, the Claimant puts the Defendant to strict proof to justify the following standard comment: (as per paragraph 15 of the application) “The Lender would expect to incur substantial costs in administering a mortgage which is in arrears, the costs of which would include, inter alia: -

i) the payment of staff to monitor payments and any non-compliance with agreed arrangements;

ii) the costs of dealing with any correspondence with the customer; litigation solicitors and any third party agency;

iii) the cost of housing additional staff necessary to deal with the customers arrears.”

 

28. Further, as a disproportionate penalty it is invalid under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). The Claimants have repeatedly asked the defendant to justify these charges but they have declined to do so. Please let it be noted that our first letter was on 16/08/2007. The screenshots (pages 20 - 60) produced by the Defendant, as part of the Claimant’s Data Protection Act Subject Access Request (SAR), show many conversations, but not one mentions charges, but does mention the Claimants calling the Defendants as promised and always sticking to their word. Therefore there was no need to maintain or monitor as stated by the Defendant.

c. The charges were expressed fully and in clear, indelible language;

 

29. The Claimants request strict proof as to what the Defendant is referring? The Claimant’s took the mortgage out with GMAC RFC and at no point were given a list of charges nor were told over the telephone when calling the Defendant.

30. The Claimants also submits that charges were not mentioned in the Mortgage Offer, nor in any signed terms and conditions. The Claimants humbly request that the Court asks for this to be evidenced prior to the setting aside of the Judgment. The Claimants include (pages 61 – 73) a copy of the original mortgage offer and the letter of transfer from GMAC RFC to Amber Homeloans. The Court will see once more there is no mention of penalty charges.

 

d. The Judgment was defective in that the incorrect sum was claimed;

 

31. This is only because the Defendant had not had sight of the Particulars of Claim at the time of the application to set aside the Judgment. The Claimants state that this is not the case and in fact they, being Litigant in persons, missed out other costs from the Judgment request to the Court. Should this matter proceed to a full hearing then this will be requested as it was mentioned in the Particulars of Claim.

 

ARGUMENT AGAINST SETTING ASIDE THE JUDGMENT

32. Further to the above points made by the Defendant and the Claimant’s responses we feel the main reason for the claim and the greatest part of the claim has been totally ignored even though it had been mentioned in both telephone calls post Judgment so Amber Homeloans were well aware.

33. The Claimants aver that this is yet another attempt to delay or postpone proceedings. After all the only party that has benefited from this chain of events is the Defendant by delaying the matter and potentially showing they are vexatious defendants. We refer to the letter the Defendants Counsel sent dated 9th April 2008 (pages 77-79). We took offence to this and wrote tot eh Court as in our opinion this behavior was blatant intimidation of litigants in person. The reference to costs is clearly meant as a tactic to try to scare us into withdrawing our claim. We hope the Court will bear these sorts of tactics in mind.

 

34. The Claimant sent the Defendant a Statutory Notice pursuant to Sections 10 and 12 of The Data Protection Act 1998. This was dated 05/07/2007 and regarding the continued processing of the Claimants subject data after the conclusion of the contract.

35. The Act allows the Data Protection Manager 21 days to satisfy the request. This was not done and Amber Homeloans are still processing our personal subject data to this date nearly a year later. If this is not done the Claimant has the right to take the matter to Court as confirmed by the Information Commissioners Office (ICO). The Claimants include on page 74 a page entitled “What powers does the Courts have” taken from one of the many consumer advice leaflets produced by the ICO.

36. The Claimants aver that written permission allowing Amber Homeloans to continue processing, or disclosing, their personal subject data was revoked upon termination of that original contract. They also contest Ambers’ continued processing on the following grounds;

 

i) As the Court is no doubt aware, the Claimants are afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which our data is collated, stored and processed. Of particular note, are Principles 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.”

ii) In the Claimants case, Amber Homeloans is still processing data after the cancellation of the contract, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then the Claimants written permission has also ceased from the date of cancellation.

 

This is confirmed in Principle 2 of the Data Protection Act, which 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."

 

The Claimants emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. We also emphasise the term "shall not be further processed".

 

37. The Claimants have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a

“legal right” to maintain this type of adverse entry for up to six years. When we challenged them to quote us the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after our continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is

“standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” May we respectfully presume that this Court likewise recognises that “standard industry practice” does not correlate with “legal right”?

 

38. Further investigation has also led the Claimants to conclude that the only six-year data ‘retention rule’, to which the Defendant may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a Judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or the Defendant, to decide legal issues.

39. In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; The Claimants refer, of course, to CIFAS and GAIN entries on a credit file. Our former account was not subject to any such marker, nor is our former civil contract with Amber Homeloans a public matter.

40. After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. Amber Homeloans, the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

41. 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.

 

42. However, there are 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.

 

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

 

43. The Claimants must therefore turn to the exemptions permitted in paragraph (a) to find where Ambers’ Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. We have reproduced these exemption paragraphs, in full, below:

 

“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.”

44. It is the Claimants contention that Ambers’ supposed right of obtaining an exemption is not contained within any of these paragraphs. We have followed each in turn with our notation to give a clearer explanation, should there be any lack of clarity.

 

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

 

That consent was terminated upon the cessation of the contract and, as stated earlier we reiterated the revocation by sending them the Statutory Notice via recorded delivery and we hold the Recorded Delivery slip.

 

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.

 

For (a), there is no contract being performed, and for (b), Amber Homeloans and ourselves are not entering into any form of contract, and certainly not at our request.

 

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.

 

According to the Information Commissioners Office (I.C.O.), 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.

 

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. 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.”

 

With reference to the I.C.O. 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 Claimants do not believe that our former account details could be described as anything like a matter of life or death.

 

45. So, it is clear to see that there is neither statutory provision permitting Ambers’ Data Controller to assume continued processing rights of our data at his discretion, nor any exemption. We can then only assume that Amber Homeloans is relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed. However, the contract that we originally signed with GMAC RFC, only gave them permission to process data during the term of that contract. We think it is fair to assume that you agree that the contract was terminated last year on the settlement of the Mortgage Account.

46. The contract neither included any other permission, nor did it imply that their perceived 'rights' to process our data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that Amber Homeloans had any arbitrary right to continuing processing data for up to six years after the ending of the contract. Please find on pages 75 – 76 the Data Protection Act declarations as signed by the Claimants. Nowhere is there any clear statement that gave their express permission for GMAC RFC (and then Amber Homeloans) to continue disclosing their subject data to third parties after the end of the contract.

47. The Court will no doubt be fully aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

48. The Claimants sent a letter to the Defendant outlining the above along with the Particulars of Claim and requesting them to be fully prepared to evidence their “real prospect of successfully defending this matter”. We also asked them to provide us with a copy of any signed terms indicating where we have agreed to this ongoing processing of our Data.

49. The Claimants would now like to point out paragraph 13 in our Particulars of Claim and more specifically Kpohraror -v- Woolwich Building Society [1996]. This case sets precedence with regards damages against a Bank for unlawful actions by processing personal data effecting ones credit rating. Surely the Court would agree that if the dishonoring of a cheque resulted in damage in the above case, then surely an inaccurate payment history on a mortgage account must be more damaging? As a Qualified Mortgage Broker I can assure the Court that this is the case and that is why we made every effort to ensure we communicated, both clearly and in a timely manner, with the Defendant throughout this matter.

50. The compensation claimed is partly for the Defendant’s breach of section 13 of The Data Protection Act 1998, for the period from 20th July 2007 to 6th February 2008 under Section: 13. - (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. This sum claimed represents £14.85 per day (202 days), which is the amount which the Claimants calculate they would continue to lose as a direct result of being unable to obtain cheaper credit. This includes credit in the form of mortgages, loans or credit cards;

CONCLUSION

51. It cannot reasonably be said that the Defendant was not given the opportunity to acknowledge or respond to the claim form. To do so would be to question the entire process of bringing such a claim and would require evidence to show that was the case – the Defendant has failed to show any evidence to satisfy that requirement.

 

52. The Claimant avers that the Defendant is, by making this application, attempting to frustrate proceedings and abuse the Courts process, in that it has no intention of actually defending the claim as it has suggested - 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.

 

53. It also cannot be reasonably said that the Defendant has a realistic prospect of successfully defending the claim, as it is unable to produce evidence to substantiate this beyond a mere assertion that such a defence is possible to make, but is highly unlikely to succeed. The Defendant should be requested to substantiate on its claim that it can successfully defend any mortgage charges. If, as suspected, by the Claimants that they have never successfully defended any such claim the application should be struck out and the Judgment to stand plus costs. Currently the Claimants have spend £52.20 in photocopying (including this Hearing bundle), 40 hours researching and preparing our case over the last year at £9.25 per hour (as per litigate person rules equalling £370) and £19.68 in postage. The original judgment was for £3580.56 excluding the above costs that were mentioned on the Particulars of Claim. These costs now come to £441.88 and we request these now be taken into account and added to the Judgment.

54. The Defendant should not be able to rely on the witness statement made in its own defence, not least because its view of such statements is flawed and favors its own position, because it has deliberately not requested the Particulars of Claim prior to filing the application nor has it made any reference to the main issue of contention (the continued processing of the Claimants personal Data). This in our humble opinion is merely another attempt to deliberately frustrate proceedings and abuse the Courts process in the current proceedings. The Claimant asks the Court to take action under CPR Part 3.4 to strike out the statement of defence, the power of which is granted to the Court under that part, for this reason. The Defendant is clearly a vexatious Defendant.

 

55. The Claimants would like to point out at this stage page 12 of the Information Commissioners Office’s leaflet for the public called “Help! How can I stop them processing my personal Information?” (Page 74) This merely confirms what we have already stated in this Witness Statement and shows that County Court may deal with these issues.

56. The Claimants respectfully request, therefore, that for the reasons stated herein and in the claim itself, that the Court turn aside the Defendants application to set aside Judgment in this case. Further, in any case, as the application was not made promptly, the application should be turned aside as the Defendant delayed unnecessarily without providing a reasonable explanation for such a delay. We do not feel that holiday leave is a reason to delay and surely there was more than one person who could deal with this matter as it was urgent?

 

57. The Claimants would like to reiterate that they have fully complied with Civil Procedure Rules in bringing this claim and seeking Judgment. To set aside judgment, as a result of the Defendants application, would be unfair. It is this system that the Claimants have put their trust in to resolve their dispute with the Defendant and up on which they have relied on to conduct their litigation. It would not be in the interests of legal or equitable justice, or be in the interests of the overriding objectives, to allow the Defendants application to succeed as a result.

 

 

IN THE ALTERNATIVE

 

 

58. In the alternative, without prejudice to the Claimants pleadings above, where it is held, which is denied, that the Defendants application to set aside judgment is successful, the Claimants respectfully requests that the Court consider the Draft Order for Directions, attached on page 12.

 

We, Penfolds, the Claimants in this case and respondent to the Defendants application to set Judgment aside and enter a defence against the claim, believe that the facts stated in this witness statement are true.

 

Signed:

 

 

Penfold

Draft Order of Directions

IT IS HEREBY ORDERED THAT;

 

1) Judgment in the above claim is set aside;

 

2) The Defendant is then to file and serve a full defence within said 14 days. This is to also include with respect of each item claimed;

• Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;
  
• Whether such charge is accepted to be a penalty, and if not why not;
  
• If such charge is alleged to be a pre-estimate of the Defendant’s loss incurred by the Claimant’s actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;
  
• If such charge is not alleged to be a pre-estimate of the Defendant’s loss incurred by the Claimant’s actions then the facts and matter intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was indeed fair and reasonable;
  
• An explanation as to why there are no notes regarding charges in or on any of the documentation that was supplied to the Claimants in response to their Subject Access Request.
   
  3) The Claimants to file a response to the defence within 7 days of being served;
   
  4) The need for Allocation Questionnaires be dispensed with;
   
  5) The matter is allocated to the small claims track;
   
  6) The case will be listed at the first available hearing, with a time estimate of 2 hours;
  If the Defendant fails to comply with this order, the Defence will be struck out without further order.
  

If nothing else it will be fun to see what happens next...

 

Prabs

 

 

[Bona]

Penfold

 

As a mortgage broker I would value your aopinion on

now that the subprime market is deteriating and at a very fast pace....many 'brokers' who relied heavily on promoting this market are suffereing too if not going bust.

 

we need some whistleblowers...brokers, intermediatatories all knew more than they shared and profited from this (you and I).

 

The BBC asked if I knew any and I do....I am talking to 'some' in and ex HML and others in other entities....

 

Some should complain very heavily to their brokers for this mess.

 

posted by Taff r

 

are you following that thread

[Penfold92]

Ok,

 

My bundle went off yesterday and they got it today (checked my special del slip). Let's see if they sent me their bundle back within the 3 days allowed...Given the Bank Holiday and the hearing is on Wednesday this will be interesting...

 

Penfold

[Penfold92]

Call me bad or naive, but on Wednesay I would like to get the first blow in...so can I ask the Judge to say a few sentences before the Defendant (Appellant) starts their bull****?

 

Your Honour,

Before we start proceedings I wondered if I could say a few sentences first in the hope that we can resolve this application by the Defendant to set aside the Judgment my wife and I got by default.

Being Litigants in persons we decided it would be prudent to understand as much of the Law as we could in such a short period of time and as we understand it even though the judgment can be set aside on “discretionary grounds” by the Court the emphasis is still on the Appellant to prove a defence. As we understand it cannot merely be an Illusion of a defence and as per CPR 13.4(3) it should also be supported with evidence. Can the Defence supply the Court with evidence that they did not receive any of the Courts documentation? Does it have a letter confirming its complaint to Royal Mail regarding losing its mail? As we understand it the usual time limit to make an application is 14 after notification, but from our calculations it took longer than this for that to happen. Surely Optima Legal had more than one person who could deal with the matter as that person was on “holiday”?

In our bundle, which was filed and served 7 days before the hearing, we submitted not just the facts and witness statements, but also precedence’s to support our claim. The Defence has not supplied anything to us save letters claiming they have now been put to extortionate costs. We feel this merely further proves that the Defendant has of an “in terrorem” approach to its customers.

Finally we add that after researching this matter thoroughly we have found no evidence of any mortgage lender actually defending such a claim in Court, yet alone successfully.

We humbly now ask the Court to bear this in mind during this hearing as if the defendant succeeds then it will only further delay matters and they have no comeback should they then decide to settle at the 11th hour as historically shown by others.

[Bona]

Go for it in all the cases where I was the applicant against the Mortgage company and I should have spoken first they did so why shouldnt you I suggest you follow them in and keep standing he will then have to turn to you and you can start ( just a tip)

[Penfold92]

Hi guys,

 

I recieved their bundle this morning and would really like some help, advice and reassurance as I feel very worried about their attempt to get costs for this hearing...I cannot believe that they do not respond to the claim and I get judgment by default and now they are applying to set aside and telling me not to attend or they will ask the judge to make me pay £1378!!!!

 

Jokers surely....4.3 hours to prepare what documents exactly? £500 for counsel to turn up at a hearing...Nice job if you can get it...

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optcosts1.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optcosts2.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optcosts3.gif

 

Then they sent their bundle....Now I am curious on views on this please...

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef1.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef2.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef3.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef4.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef5.gif

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Optimadef6.gif

 

Am I being paranoid here or should I be getting worried? I still like my few prehearing paragraphs I want to say...put them on back foot and judge hopefully understanding where they are trying to get round the judgment...

 

Who knows,

 

Penfold

Edited June 14, 2008 by Penfold92

[Penfold92]

I need as much info on the arguement that the charges are penalties etc as I feel that is where this is going to be won or lost...As for the damages part, I need to get the judge to understand the concept of the DPA...Help please guys and girls...Hearing Wednesday so need to be fully prepared....

 

Penfold

[car2403]

Mate, they can sing for those costs, IMHO. At worst, the Judge may award them a nominal amount for attending, but any other costs (again at worst) will be in the case once it's finally heard. That's IF they can get the Judgment set aside AND the Judge awards costs against you. Highly unlikely...

 

From what I've seen, they probably have made the application promptly. Unfair, but there you go. I reckon the Judge will have a good go at them about the size of their mailroom being the problem though - uck! Wouldn't want to be the solicitor that turns up with that excuse!

 

Prospect of defending? Going on what happened with O2 in my case, that will probably suffice. It doesn't mean they will defend successfully, only that they could defend on this basis. Again, I think they'll get some jip from the Judge.

 

IMHO, the defence has no change at a trial, but it probably will get them past the hurdle of setting judgment aside. I could be wrong, though.

 

Best of luck anyway...

[Penfold92]

Cheers mate,

 

I am banking on my prehearing speech and the emphasis on:

 

"the judgment can be set aside on “discretionary grounds” by the Court the emphasis is still on the Appellant to prove a defence. As we understand it cannot merely be an Illusion of a defence and as per CPR 13.4(3) it should also be supported with evidence."

 

What evidence is my learned (LOL) collegue producing your honour? only excuses

 

 

I agree about the costs, except the nominal one it is ridiculous if that occurs and I may end up in contemp if the judge agrees with them...

 

Prabs

Edited June 14, 2008 by Penfold92

[zootscoot]

As your claim has not yet been allocated, then the no costs rule of the small claims track does not apply. So you could be liable to pay their legal costs of the set aside hearing should you lose. Also it is very likely that the judge will allow the set aside. As it is almost a foregone conclusion in claims where the defendant claims not to have received the claim form in time. Judges would prefer the claim went to trial rather than award judgment in default where the defendant demonstrates that it wishes to defend.

[car2403]

In all fairness, this is going to be a small claim because of the amount and the lack of complexity.

 

The Judge in my O2 set aside hearing said that, as the claim was clearly a small claim, that costs would be in the case - costs for set aside hearing to be included in that. He went on to say that O2 wouldn't be able to reclaim their costs, as "the the purpose of the small claims track is to deal with the claim quickly and with minimal costs to the parties - if O2 wanted to continue with the claim, despite it being on the small claims track, in the hope of recovering their costs of defending the claim, they should have considered that before the claim came to Court and settled".

 

Of course, this is one judge's opinion, so another may decide something different.

 

Personally, I can't see you having to pay costs of the set aside hearing, Prabs, but zooty is right to point out the possibility - albeit a small possibility.

 

In all truth, it may have been better to agree to the set aside by consent, on the basis that allocation was to the small claims track and straightforward case management directions were also ordered. I can't see how the judgment won't be set aside, so that would have been the best that can come of this in that case, IMHO.

[zootscoot]

Penfold, in your claim form did you specify the amount of damages you are claiming under the Data Protection Act?

[car2403]

Penfold, in your claim form did you specify the amount of damages you are claiming under the Data Protection Act?

 

Looks like he did;

 

I will be claiming £445 plus interest, BUT I am also going after damages, which I believe equate to around £1500 based on the continued processing of my data nda effecting my credit rating and meaning a £20K loan will be 2% higher and so that is roughly the differnce in the payments that would be made over 10 years...