car2403 -v- o2 (& Wescot DCA)(Default removal)

[car2403]

Judgments received - they are just straightforward "the Defendant must pay the Claimant [the amount owed]"... I'll wait to see what O2 do next, but I suppose I'll have to ask the Court to issue the Data Protection Act enforcement orders I asked for at Paragraph 7 on the Subject Access Request enforcement claims and Paragraphs 29 and 31 of the Default removal claims, as they haven't done so yet.

Both POC can be found here;

http://www.consumeractiongroup.co.uk...ml#post1237658

[car2403]

Here's a nudge letter I'm sending;

I refer to the two County Court Claims recently issued by Morpeth and Berwick County Court.

As you have failed to acknowledge the Claims forms in both claims, the Court has entered Judgment by Default at my request. I enclosed copies of Judgment for each Claim sent to you by the Court dated 18 December 2007.

As Judgment has now been entered, I now require confirmation from you, within 14 days of the date of receipt of this letter, that you will take such actions sought within the Claims and seek confirmation of such actions in return, namely;



1. That you will, within 14 days of your receipt of this letter, comply under the Judgment relating Claim 7*******, seeking your compliance under the s.7 Data Protection Act Subject Access Request immediately;

“7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request”

2. That you will, within 14 days of your receipt of this letter, pay the sum of £130.00 to me immediately under the Judgment relating to Claim 7*******;

“9. Damages and costs within the discretion of the Court.”

3. That you will, within 14 days of your receipt of this letter, comply under the Judgment relating Claim 7*******, seeking your compliance under s.14(1) and s.14(3) Data Protection Act, immediately;

“51. Additionally, the claimant requests an order from the Court under s.14(1) and s.14(3) of The Data Protection Act 1998 for the removal of the Default notices and any other prejudicial information from all credit reference agencies;

“14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.””

4. That you will, within 14 days of your receipt of this letter, pay the total sum of £1,065.00 to me immediately under the Judgment relating to Claim 7*******;

“49. The Claimant further claims the Court fee of £65.

50. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

50.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;”

Please note that failure to respond to this letter with details of your unconditional compliance with the Judgments, detailed above, will result in further recourse to the Court informing the Judge of your non-compliance with such Judgment and seeking further Order that you do comply with the Judgments laid down. This will be at further cost to you, as I will seek to recover any applicable Application Fees that the Court requires to take such action. I also reserve the right to seek enforcement of these Judgments against you in the form of a Warrant of Execution, a Third Party Debt Order, or any other means available.

I look forward to receiving your response, as outlined above, at your earliest convenience.

Yours faithfully,

[huggles]

*subs*

[orfoster]

Hi Car,

Hows it going?

Just a quick question, on your N1 what did you put for Brief details of claim and the value section?

[car2403]

Nothing as yet.

I'm preparing a letter to the CRA's re: Default removal in an attempt to get it removed sooner, rather than later, under s.159 CCA 1974 now I have won Judgment. I may have to apply to the Court for a specific order as requested. (See below)

I may even consider a complaint to the Information Commissioners Office now the Court action is complete - technically, a Courts decision overrides his "opinion", so he should just force their specific performance in removing the Default, IMHO.

They have another week to pay me or I'll be looking to see what enforcement options I have open to me. It will cost to enforce though...

My N1 was in no way brief! It was 8 pages long and sought;

49. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;
49.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;
49.2. An order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies;
49.3. Costs, at the discretion of the Court

[postggj]

may i ask with the s10 notice
where in the data protection act you can withdraw consent to process data
when people send these, the finance instatutions are saying you agreed it in there t&c
can you withdraw it at any time, can anyone supply a link

c

[car2403]

Originally Posted by postggj

may i ask with the s10 notice
where in the data protection act you can withdraw consent to process data
when people send these, the finance instatutions are saying you agreed it in there t&c
can you withdraw it at any time, can anyone supply a link

c

http://www.consumeractiongroup.co.uk...d-removal.html

[postggj]

many thanks

[Paintball]

Well Car, WHAT a riveting read this thread has been!! Just read it to catch up with your N1s for default removal as I'm in the process of compiling my claims. congratulations ...

[car2403]

Thanks Paintball, but hold your congratulations until the Defaults are removed and I've been paid the amount awarded by the Court...

[Nick W]

Here is a stupid question - wont they just apply to set aside Judgment in Default?

Nick

[car2403]

They could, Nick, but there are only very specific cases where the Court MUST set aside Judgment - this is contained within CPR Part 13 Practise Direction 13.2;

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –
(a)in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b)in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c)the whole of the claim was satisfied before judgment was entered.

From what I'm reading from this, 13.2 doesn't apply because no Acknowledgement of Service was received and no Defence was entered.

Circumstances where the Court MAY set aside or vary Judgment are also specific, but not so specific as above, under CPR Part 13 Practise Direction 13.3;

13.3 (1)In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a)the defendant has a real prospect of successfully defending the claim; or
(b)it appears to the court that there is some other good reason why –
(i)the judgment should be set aside or varied; or
(ii)the defendant should be allowed to defend the claim.
(2)In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

13.3 may apply if O2 submit an Application Notice to have Judgment by Default set aside or varied - but they need to apply "promptly". Judgment was entered on 18 December, so that is 8 working days ago in my calculations. In that time, they've had a letter from me asking for payment/removal of Default dated 21 December and they haven't responded. Of course it's entirely possible that they've chosen to ignore me completely - which is what got them in to this position in the first place - and have submitted an Application Notice to the Court without serving a copy on me. (I don't think they HAVE to, but they probably SHOULD have)

All this means they can apply to have Judgment set aside or varied, (probably will be applying for a set aside to allow the claim to be heard properly) but they will need a damn good reason as to why they didn't Acknowledge or Defend in time. I can't see what a "good reason" would be in this case - I'm presuming I'll be invited to an Application hearing to discuss it, where I can show everything I would have had a full hearing gone ahead and show that they had little chance of Defending completely anyway.

The other thing that can happen is they don't bother applying to set aside and I'm left in the position I'm in now of trying to enforce my claim against them. Getting the cash shouldn't be a problem, as I can send the bailiffs in if they don't pay up - (although that has it's own issues - see my Barclays charges claim thread to see what I mean) it will be enforcing their removal of the Default (which was the whole point of my claim in the first place) that could prove difficult. Either way, it's going to cost me MORE money to get the Court to do anything about it!

Hey, I've just had another thought on how to get the £££'s they owe me... I could sell the debt to a DCA and get them to collect on it! I'm sure Wescot will be up for it, as they know exactly how to collect on a "legitimately owned O2 debt" as they are VERY experienced at it, from what I've seen!



Bring it on O2...

[Nick W]

Hi

You are of course correct with regards to CPR 13.

However, as a civil litigator, I have found that DJ's are easily pursuaded when it comes to JSA. All needs to be shown is that they may succeed or there is a good reason why it should be set aside.

I agree, that the N244 needs to be filed promptly, however, again from experience I have known this to be done a year later (albeit it was a question of valid service).

I agree that it doesnt go in their favour why they didnt send an AOS and have delayed in an application.

If you are going to send Baliff's in and this is the best option - DONT use the Warrant of Execution. Court Baliff's can be fobbed off fairly easily.

I use John Marsten & Co - as your claim is for over (I think £600), you can get a High Court writ.

They go in WITHOUT notice (unlike Court Bailiff) and they dont take ANY excuses............

I think its worth getting it transferred up to HC.

Let me know how it goes!

Nick

[car2403]

Thanks for the helpful advice Nick.

I have 4 claims to enforce against them totalling £2,390 (along with 2 x Default removals) so that may be an option - I'll see what happens over the next few weeks.

[wyverne]

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