My Goldfish Claim - going to court *CONCLUDED*

[deemacperth]

Okay, I've filed my reply to defence and posted it off to the court and a copy to the defence, so I am now in a position to expand on my unusual case that will most likely end up in court.


I’ll start off with the overview.


I had a credit card with Goldfish until 2005 when it was defaulted. Wescot Credit Services started chasing me for the debt on behalf of Goldfish and I was making payments to them. In February 2006, Morgan Stanley bought Goldfish from Lloyds TSB. I started the ball rolling with Goldfish on April 2006. They never replied to my S.A.R - (Subject Access Request) and passed it onto Wescot.

Wescot wrote back in May 2006 saying

Dear deemacperth

Wescot account number xxxxxxx
Client : Goldfish
Client ref no. xxxxxxx (credit card number)

I refer to your letter dated 18 April 2006 addressed to AMG Goldfish, which has been passed to me for response.

I note that you are requesting all information held by Goldfish for this account and you enclose a £10.00 cheque to cover the normal administration fee charged for this information. I also thank you for providing us with proof of your identity. However, when this account was passed to WesCot for collection purposes, our client automatically deleted their records and so they hold no paperwork on the account. We are also not automatically provided with copies of paperwork by our client when accounts are passed to us.

I enclose a copy of all data held by WesCot in relation to this account. this includes a print-out of all details held on our system and copies of the paper file that has been produced since you have been dealing with our department, together with associated e-mails.

load of rubbish here about WesCot data controller

[deemacperth]

I sought advice from the board and on the 05th of May chased Goldfish again.

LETTER BEFORE ACTION
Section 7 – Data Protection Act 1998


Dear Sir/Madam


Credit Card Number: xxxxxxxxxx


I am in receipt of the letter and supplied documents that WesCot have supplied in response to my Data Protection Act information request dated 18.04.06. I have enclosed a photocopy of the covering letter. The comments they have made with regard to the deletion of the information held is both alarming - and in breach of banking regulations.

On the basis of this I consider that the disclosure of personal data is incomplete in that at least the following documents are missing.

1) You have failed to provide a complete list of transactions and charges prior to 29.04.05
2) You have provided no notes, or documents relating to instances of manual intervention prior to 29.04.05

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

Again I include a postal order for £10 to cover this cost.

You have a further 22 days to comply.

Thanks to alanfromderby for that letter.

I never received a reply from Goldfish within the 40 day mark, received a letter from Wescot saying that Lloyds TSB had sold the debt to them so it was now theirs.


Proceeded to chase Goldfish so on advice of site, wrote final LBA

LETTER BEFORE ACTION
Section 7 – Data Protection Act 1998


Dear Sir/Madam


Credit Card Number: xxxxxxxxx


You have failed to comply with my Data Protection Act Subject Access Request dated 18.04.06.

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

Yours faithfully,

deemacperth

[deemacperth]

Okay, no reply from goldfish, so court.


Below is my particular of claim that was served on 21st June 2006. The Defendant is Morgan Stanley Bank International Limited trading as Goldfish.

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the claimant is a Subject.


2. The claimant had an account number xxxxxxxxx("the Account") with the Defendant which was closed on or around 01/04/2005


3. On 18/04/2006 the Claimant sent a Subject Access Request, pursuant to section 7 of the Data Protection Act 1998 to the defendant.


4. The Defendant has failed to comply.


5. By virtue of the Defendants failure to comply with the subject Access Request the Claimant has suffered damage.


6. The damage caused is:
Extra costs incurred in addition to court costs, due to the Defendants failure to comply – this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £24.18 plus relevant court costs.
The claimant is being pursued for a debt on behalf of the Defendant by Wescot Credit services Limited for £1343.23. It is the claimants view that this figure is wrong and is made up in whole or partly of unlawful charges as defined by Common Law, Statute and recent Consumer regulations.


7. The Claimant seeks an order that the Defendant do comply with the Claimant’s Subject Access Request so as the Claimant may satisfy himself of the make up of the disputed debt. If the Defendant is unable to provide said information, the Claimant seeks damages of £1343.23 to satisfy the debt or the debt to be struck out.


8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant’s Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the claimant requests that the Court inspects that information, and where it finds that the Defendant’s opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.


9. Damages and costs within the discretion of the court for a sum not exceeding £1500.

[deemacperth]

Morgan Stanley wrote to me by letter apologising for the lack of response and indicated that I should be chasing Lloyds as my account had not transferred across when they purchased the portfolio.

They offered me £200 to end the claim. I refused.


They are defending and their defence is below.

1. This defence is filed in response to the Claim form and Particulars of Claim issued on 21 June 2006. Unless otherwise stated, references to paragraphs are references to the Particulars of Claim.


2. This Defence is served without prejudice to the Defendant’s primary contention that there is no cause of action and the claim should therefore be struck out pursuant to CPR Part 3.4(2). The Court is invited to make an order in such terms pursuant to its case management powers.

3. Paragraph 1 is denied, save that it is admitted that the Defendant is a Data Controller within the meaning of the Data Protection Act 1998 ("the Act"). The Defendant has not at any time been responsible for the processing of data in respect of which the Claimant is a subject


4. Paragraph 2 is denied. The Claimant has not at any time held an account with the Defendant.


5. Notwithstanding the above, the Defendant understands that the Claimant did hold a Goldfish credit card account with Lloyds TSB. The Defendant purchased the Goldfish credit card portfolio from Lloyds TSB on 17 February 2006. However, the purchase did not extend to the Claimant’s credit card account which, on the Claimant’s own admission, was closed on or around 1 April 2005.


6. Paragraph 3 is denied.


7. Paragraph 4 is denied. The Defendant avers that on receipt of the claimant’s Subject Access Request, it searched its records for any data it held in relation to the Claimant. Upon completing the search, the Defendant determined that, as the claimant is neither an existing or former customer of the Defendant, it held no data in relation to the Claimant. However, as it was clear that the Claimant’s request actually concerned a Goldfish credit card account, the Defendant passed the Subject Access Request to Lloyds TSB.


8. Further, the Defendant was under no obligation to supply any information to the Claimant even if it was in a position to do (which is denied) because the Defendant omitted to pay the requisite fee payable pursuant to section &(2) of the Act. Section 7(2) of the Act provides that:

"A data controller is not obliged to supply any information under subsection (1) unless he has received-

(a) a request in writing

(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require."

9. Paragraph 5 is denied. The Claimant has suffered no damage as alleged or at all.


10. In relation to paragraph 6, the Defendant’s position is as follows:

10.1. It is denied that the Claimant has incurred any recoverable costs as alleged or at all as a result of the Defendant’s alleged failure (which is denied) to comply with the Subject Access Request. Specifically, the Defendant denies that that Claimant is entitled to recover any costs associated with correspondence or time spent preparing documents or seeking legal advice as a matter of law.

10.2. It is denied that the Claimant is being pursued for any debt on behalf of the Defendant by Wescot Credit Services Limited as alleged or any other third party

10.3. The Defendant is unable to admit or deny whether any or all of the debt is legitimately owned by the Claimant. In any event, it is denied that any breach of the Act would entitle the Claimant to recover a sum which the Claimant owes to a third party.


11. In relation to paragraph 7, the Defendant denies that the Claimant is entitled to the order sought. The Defendant avers that it has fully complied with the Claimant’s Subject Access Request: it holds no records in relation to the Claimant other than the documents created in respect of the subject matter of this claim. Further, as stated above, the Defendant avers that it has no relationship of any kind with the Claimant.


12. Paragraph 8 is denied for the reasons a set out above.


13. Paragraph 9 is denied for the reasons a set out above.


14. All allegations made by the Claimants which have not been expressly denied or admitted are repeated here and denied.


15. The Defendant repeats its averment that the Particulars of Claim contain no cause of action against the Defendant and therefore should be struck out by the Court pursuant to CPR Part 3.4(2).

[deemacperth]

And here’s my reply to the defence, balls back in their court, let’s see how they take this.

It’s amazing how factually inaccurate Morgan Stanley is. I’m guessing when their legal team gets this, there’s going to be some frantic phone calls upto Glasgow asking what the hell they’re playing at with the misinformation.

IN THE MAYOR’S & CITY OF LONDON COURT CLAIM NO: 6MY02507

deemacperth

-v-

Morgan Stanley Bank International Limited

Reply to the Defence

1. This Reply to the Defence is filed in response to the Defence from Morgan Stanley Bank International Ltd. dated 11 July 2006. Unless otherwise stated, references to Paragraphs are references to the Defence.

2. This Reply to the Defence will set out the Claimants reasoning as to why he believes he has cause for action and will ask the Court to disregard the Defences request to strike out the Claim.

3. Paragraph 3 is denied, save that both parties agree that the Defendant is a Data Controller within the meaning of the Data Protection Act 1998 ("the Act"). The Claimant has included a copy of an Equifax personal credit file relating to the Claimant ("Appendix A"). A clear relationship between the Claimant and Morgan Stanley Card Svs Ltd. (Goldfish) can be seen. The Defendant is acting as the Data Controller and Equifax as the Data Processor in processing information about the Claimant.

4. Paragraph 4 is denied.

5. Notwithstanding the above, the Claimant believes that AMG Goldfish should retain account history for the Claimant. It is the Claimants understanding that AMG Goldfish acts as an undertaking in its own right. AMG Goldfish retains the same office address in Glasgow and the same internet presence Goldfish : Main as it had prior to the purchase of the portfolio. The Claimant has included a copy of an Equifax personal credit file for the Claimant ("Appendix B"). A clear relationship between the Claimant and Goldfish Credit Cards can be seen. A default has been recorded against this file. The third, forth and fifth principles of the Act imposes a duty on the Data Controller to perform a dynamic and continuous appraisal of the personal data and reasons for retaining said data. It is the Claimant’s argument that a ‘reasonable’ length of time to retain data after recording a default against a data subject would be six years.

6. Paragraph 7 is denied. The Claimant is of the belief that the Subject Access Request was not sent to Lloyds TSB but was passed direct to Wescot Credit Services Ltd. on or around the 20 April 2006. The claimant does not feel that 1 day would equate to a fair and proportionate search.

7. The Claimant agrees with the Defendant on the wording of the Act in Paragraph 8, however the Claimant feels that the Defendant appears to be lacking to the facts of the case and refers the Court to the attached copy of the Disclosure Request ("Appendix C"), a copy of the passport that was sent in with the request ("Appendix D") and a copy of the statutory fee of £10 that was included at the time of the initial request ("Appendix E"). The Claimant has taken the liberty to assume that Line 3, Word 1 of Paragraph 8 should read ’Claimant’ and not ‘Defendant.’

8. Paragraph 9 is denied.

9. In relation to Paragraph 10 and relevant sub-paragraphs, the Claimant is unaware who owns the disputed debt. Wescot Credit Services state they have purchased the debt, but have not provided the Notice of Assignment that was requested by the Defendant as set out in the Consumer Credit Act 1974. As this has not been provided the Claimant is unable to corroborate who owns the debt.

10. Furthermore, this claim is not to dispute the debt, but to force Goldfish to comply with a disclosure under the Act. The Claimant contends that the debt is made up of illegal charges and requires the information to be provided by Goldfish to dispute this debt; if the Defendant cannot provide this information as required by the Act then the Claimant is left with no option but to seek damages to cover the disputed debt.

11. Paragraph 11 is denied, the Claimant had received no response from the Defendant over the Subject Access Request until this case was commenced and feels that 1 day to search records is not a fair and reasonable effort under the Act.

12. Paragraph 12 is denied for the reasons above

13. Paragraph 13 is denied for the reasons above.

14. The Claimant again requests the Court to disregard the Defendants assertion that the Particulars of Claim contain no cause of action and to proceed to allocation.

[asharon]

Good luck with this !

Shouldn't it be unlawful charges rather than illegal though ?

[juicy]

Good Luck with this, let us all know how you get on.

I should receive a reply to my Prelim letter tomorrow!!!! Will let you know

Juicy


P.S Do you know of anyone that has taken Goldfish to court or has had their account closed???

[deemacperth]

Yeah, I should have put unlawful, but as it's only the reply to the defence, I can explain to the judge that I meant unlawful as per my particulars of claim.

I haven't heard anything about accounts being closed from Goldfish, they're Morgan Stanley now, so depends how they action it.

[Tobes]

well done and good luck

[deemacperth]

Ahem, I am not allowed to comment on this case any more, but I am allowed to say that I shall not be going to court incase anyone turns up on the 18th of October and I'll be out on the town celebrating tonight.

[angry cat]

Good Luck !!
From Angry Cat

[Tinkerbelle]

Excellent stuff!!! Wow!!!

This is brilliant!!

I'm so pleased for you

[deemacperth]

This case now follows onto this link:

http://www.consumeractiongroup.co.uk...-says-cca.html

[angry cat]

Ac

[Pen]

Wow angry Cat, how did you manage all of that.
I am only just starting on my first claime and reading your fritens me to hell, can I ask how you statred it all. did you get your credit deteails from Equifax and take it from there. I think if I started asking for some of my creditors to refund me the hundreds I have paid in chargers then they will come after me for the rest of the debt so I don't know whether to leave well alone. Also how long do companys keep hold of your information for.
Good luck
Pen