Litigation - tbern123 V Cabot Financial (Uk) Limited

[tbern123]

10. By a letter dated 18th December 2006, Cabot Financial (Europe) Limited informed the Claimant that HSBC had been unable to provide the requested information and that the account had been reassigned to HSBC.

[tbern123]

11. It is not admitted that the Defendant was at any time the creditor under the agreement for the HSBC account for the purposes of section 77, 78 or 97 of the Consumer Credit Act 1974 (“the 1974 Act”). Section 189(1) of the 1974 Act provides that, unless the context other requires,

“Creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law”.

The Defendant never provided credit under any agreement with the Claimant and, although the rights of HSBC under the HSBC account were assigned to the Defendant, the duties of HSBC under the agreement for the account did not pass to the Defendant by assignment, by operation of law, or at all.

[tbern123]

12. It is denied that section 77 of the 1974 Act applied in respect of the HSBC account, which was not an account under an agreement for a fixed-sum credit.

[tbern123]

13. Even if, which is not admitted, for the reasons set out in paragraph 11 above, the creditor under the agreement for the HSBC account did receive a request for such information as it is referred to dection 78(1) of the 1974 Act, neither the Defendant not HSBC came under an obligation to provide the Claimant with information under that section, because the Claimant did not pay the fee of £1 which must be paid before such obligation arises.

[tbern123]

14. It is denied that the Claimant made a request to the Defendant or to Cabot Financial (Europe) Limited under section 97 of the Consumer Credit Act 1974 (“the 1974 Act”), for a statement of the amount of the payment required to discharge his indetedness under the HSBC account.

[tbern123]

15. It is admitted that, by letters dated 28th January 2007, the Claimant made subject access requests, under the Data Protection Act 1998 (“the 1998 act”), for copies of all data relating to the Claimant that was held by the Defendant and for copies of all data relating to the Claimant that was held by Cabot Financial (Europe) Limited. It is further admitted that, by letter dated 20th February 2007, Hodsons, solicitors acting on behalf of the Defendant, informed the Claimant that the Defendant did not hold any data in relation to the Claimant.

[tbern123]

16. In compliance with the Claimant's subject access request, Cabot Financial (Europe) Limited provided the Claimant with copies of the data that it held in relation to the HSBC account, under cover of a letter dated 19th February 2007.

[tbern123]

17. It is denied that the Defendant disclosed the Claimant's personal data to Cabot Financial (Europe) Limited, HSBC supplied Cabot Financial (Europe) Limited with information relating to the Claimant as set out in the letter dated 19th February which is refferred to in paragraph 16 above, and Cabot Financial (Europe) Limited subsequently disclosed that information to Hodsons and to UK Changes.

[tbern123]

18. The Defendant us unable to prove the Claimant consented to the disclosure of his personal date in relation to the HSBC account by HSBC to third parties. HSBC has retained no copy of the agreement for the HSBC account.

[tbern123]

19. Disclosure of personal data of the Claimant in relation to the HSBC account to Cabot Financial (Europe) Limited and such processing of that data as has been undertaken by Cabot Financial (Europe) Limited, including it disclosure to Hodsons and to UK Changes has been fair and lawful, whether or not the Claimant consented to such disclosure and such other processing, in that it was necessary for the purposes of legitimate interests pursued by the data controller, namely debt collection and defending this claim, and the Claimant was informed that his data would be processed for the purpose of debt collecting by the letter data 12th May 2006, which is referred to in paragraph 2 above. The Defendant will rely upon section 4, paragraphs 1 to 3 of Part II of Schedule 1, and paragraph 6(1) of Schedule 2 to the 1998 Act

[tbern123]

The Defendant will rely upon section 4, paragraphs 1 to 3 of Part II of Schedule 1:

Can somone check this for me ???? I must be looking at the wrong section

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.

paragraph 6(1) of Schedule 2 to the 1998 Act:

" 6. - (1) The processing is necessary for the purposes of 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 by reason of prejudice to the rights and freedoms or legitimate interests of the data subject "

[tbern123]

20. It is denied that the Claimant is entitled to exemplary damages, or any damages

[tbern123]

21. If, which is denied for the reasons set out in paragraphs 11, 12, 13 and 14 above, the Defendant did fail to comply with section 77, section 78 or 97 of the 1974 Act or if, which is denied for the reasons set out in paragraphs 15, 16, 17 and 19 above, the Defendant did fail to comply with any provisions of the 1998 Act, it is denied, for the reasons set out below that the Claimant is entitled to damages arising from any such failure.

[tbern123]

22. A failure by a creditor to comply with section 77(1), section 78(1) or section 97(1) of the 1974 Act does not give rise to any cause of action against the creditor for damages or any relief. The sanction for non-compliance is that the agreement is unenforceable against the debtor during the period of non-compliance: Section 77(4), section 78(6), and section 97(3). Section 170(1) of the 1974 act expressly provides that a breach of any requirement made, otherwise than by any court, by or under the Act shall incurr no civil sanction as being such a breach, except to the exten, if any, expressly provided by or under the Act.

[tbern123]

23. Compensation is only payable under section 13 of the 1998 Act where an individual suffers pecuniary damage by reason of a contravention by a data controller of any of the requirements of the 1998 Act. The Defendant will rely upon the express provisions of section 13(1) and (2) and Johnson v The Medical Defence Union, Times 4th April 2006. The Claimant does not allege that he has suffered any pecuniary damage by rweason of the alledged contraventions of the 1998 Act and it is denied that he has suffered any such damage.