Ok folks, I'm in a position to share the outcome with you now!
I was at a small claims track final hearing, which was listed for 2.5 hours. O2 did turn up, (same solicitor as last time) with 2 - yes, 2 - (count 'em, 1... 2...) witnesses! Quite why they needed them I wasn't sure, especially when one of them hadn't made a witness statement in advance!
When we went in to see the Judge, he immediately said that the claim wasn't going to be heard on that day! Not because the claim was over the small claims track (SCT) amount, but because the claim was "so complex" (his words) that it shouldn't have been listed on the SCT at all. He did say that it would probably take 2 days to look through all the evidence in sufficient detail, which is why 2.5 hours just wasn't sufficient. To be fair to the Court, there were over 5 reams of evidence between the 2 parties to go through!
The conversation between the Judge and O2's rep did take some time - they did make lots of references to the "white book", which looked like the CPR's but I couldn't be sure. The conversation was that the Judge wanted to reallocate the claim to the multi-track and refer it to the Commercial Court. Obviously, I objected, as I started this as a small claim and had never considered the cost implication of the complexity of the whole thing at the beginning.
The Judge said that there would be cost implications, if I should go on and lose, as I would have to pay O2's costs. (Probably in the region of £3k/£4k!) I couldn't really argue against reallocation/referral, as I haven't been through that before. The Judge obviously recognised that, so although he had decided to reallocate to the multi-track, he said he would refer the claim to a Circuit Judge for him to review the file and to make further directions as to where the claim would be allocated/heard. He said it was most likely to be referred to the Commercial Court, but he wasn't able to make that decision, hence the referral to a Circuit Judge who would have more experience in such issues.
O2 were obviously loving this, as they could see me "squirming". I was trying hard to hide it, sticking to the law behind the claim being completely straightforward and the facts not been in dispute - that didn't make a difference in the end though. The Judge did say to O2 that it didn't appear in their interests to continue with their defence, as I was "
attacking their contract, a decision on which would millions of their customers and could put their business at risk". He also went on to say that he thought they should settle out of court, as it wasn't worth their while continuing. His decision on what to do was already made, but he said that we should have a conversation outside before deciding whether to continue. The hearing ended at this point.
O2's rep was going to leave the building, but I managed to get her attention and asked if we could have that conversation. O2 had sent a solicitor, with instructions to get the hearing on multi-track because of it's complexity, (an obvious gambit to get me to back down, IMO) along with these 2 "employees" - these people weren't introduced to me, but I'm assuming that one of them was "Ian Roy" (who had made their witness statement for the hearing) and another lady that wasn't referred to at all. When I was talking to the solicitor, I started by asking why they hadn't offered settlement on the basis of default removal - she said that O2 had received hundreds of complaints using the template letter that I started with (the Surleybonds s.10/s.12 Data Protection Act 1998 template) and that they were not prepared to remove any defaults as a result. It seems they may have done that in the past, but with the credit crunch, the price of credit and the state of the economy these days, O2 have made a corporate decision to push a test case through to get a binding decision on the issues in the claim. They also said that they had "issues" with the CRA's questioning their process of removing data "willy-nilly" - it sounded to me like O2 were being held to ransom by the CRA's, who had threatened to remove their ability to search credit files if they didn't stop removing accurate (or even inaccurate!) data because they were being challenged on it. I can't be sure, but that's what I read between the lines of what was said. The upshot of that conversation was that I said again that I hadn't prepared for the costs of continuing on the basis of the Judges' decision and that I had to rethink my approach while the Court decided how to deal with the file. I asked O2 if they would think "creatively" about this and asked them to consider making a "payment" without prejudice to the claim that covered the damage that I had/would suffer as a result of the default remaining on my credit file - they did seem pretty up for that, but the solicitor had to "take instructions" as she couldn't make a decision on that. Fair enough. I was just trying to be reasonable.
You'll see from the thread that it's incredibly detailed, even to the point of posting up all the correspondence I've had with O2, including without prejudice negotiations that have been going on. They did comment that they had stopped those discussions because of the interest in CAG and they couldn't be seen to settle my dispute ("dispose", they called it) because of the interest I was getting. I did say that I was open to further discussions, which I agreed to keep off the thread, for this very reason. Any settlement agreement wouldn't have now included default removal, though - they made that more than clear.
The Judge did mention that he thinks it should be a test case, because it's testing O2's commercial contract with it's customers, the relationship between O2 and the CRA's, the whole CRA process itself and has wider implications on the ability of lenders to process/store data, as well as questioning some of the Information Commissioners Office's opinion on how the Data Protection Act should be applied.
Put simply, my financial situation just won't allow me to risk potential bankruptcy should I go ahead and continue - O2 clearly knew this and, perhaps, even relied on it. They were well aware of the CAG interest and even asked me if CAG would fund the case as a test case! I know from the forums that there is loads of interest in my/others' cases on the same issues already.
As a result of all this, and in the absence of any communication with O2, I wrote to the Court (before the Circuit Judge had a chance to review the referred file) to say that, should the claim be reallocated off the SCT, that I would, regrettably, have to discontinue. I made it clear that the reason was the risk of costs, not that I didn't think I had a case against O2!
I contacted the Court today, who have confirmed that the claims (both, one mine, the other my OH's) have been "settled". I asked the Clerk to check the file, as it wasn't settled it was discontinued. When she came back, so said the file shows as discontinued, not settled, but the computer was wrong. This could be an important distinction for me in the future - the reason why I can't share with the vast majority of you. (There is a tiny, tiny minority that understand why, but my lips are sealed - as are theirs! Please don't press me for more, or try to find out who knows what apart from me, as we're working as a team behind the scenes and they are sworn to secrecy on penalty of death!)
Anyway, this particular battle is over... for now.
I am planning on writing to my MP about this, as the whole issue is based on "industry standard processes" that the CRA's have implemented without being regulated or checked in any way and they are clearly (by avoiding claims such as mine) not happy at being queried in Court. I think the Government need to step in and sort this out, but I can't see that happening in the current climate. I also plan to get some local newspaper interest, with the hope of perhaps "going national" with the story. The more the merrier.
I do think I can still give these people a headache, so on we go.
Re: car2403 -v- o2 (& Wescot DCA)(Default removal) 
