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

[Nick W]

I really would consider getting your Judgment transferred up to the High Court and then getting the HC Baliffs in.

They dont give any warning or take any excuses......

Nick

[car2403]

Originally Posted by Nick W

I really would consider getting your Judgment transferred up to the High Court and then getting the HC Baliffs in.

They dont give any warning or take any excuses......

Nick

How do I do that now that Judgment has been entered by a County Court, Nick?

What's the costs?

[Nick W]

Ok - it will cost you £50 (unless you are exempt) to transfer up to the High Court.

You can either do this yourself at the County Court or get someone else to do the paperwork (this is free service).

You need High Court Enforcement Officers to execute it:

John Marston & Co

On the home page it says:

If you have a judgment over £600.00 use our online transfer up service.

They do it for you, take a day or two then they send an agent in without notice.

They dont take any excuses (unlike Court Baliffs) and its cheaper too. I think warrent execution at County is £55.

Keep us updated!

Nick

[car2403]

Originally Posted by Nick W

Ok - it will cost you £50 (unless you are exempt) to transfer up to the High Court.

You can either do this yourself at the County Court or get someone else to do the paperwork (this is free service).

You need High Court Enforcement Officers to execute it:

John Marston & Co

On the home page it says:

If you have a judgment over £600.00 use our online transfer up service.

They do it for you, take a day or two then they send an agent in without notice.

They dont take any excuses (unlike Court Baliffs) and its cheaper too. I think warrent execution at County is £55.

Keep us updated!

Nick

Hmmm... very interesting...

If only I'd know about this when I'd dealt with my Barclays charges claim, as I had to wait almost 4 months for a County Court Bailiff in Bow to "write" to them to get payment! Isn't that something I should have been able to do for free!

I'll bear this in mind, but I still want to see what O2's reaction to these Judgments will be first - I don't want to order Bailiffs in when they are preparing to apply to have Judgment set aside, which is a possibility. (But, the possibility of it dwindles as each day passes!

[orfoster]

My claim update, O2 have filled an acknowledgment. Service address for legal team.
Kent Dreadon.
O2 Uk Limited.
Legal & Regulatory Department
Wellington Street
Slough. SL1 1YP.

Incase it helps for sending papers etc.

[car2403]

Originally Posted by orfoster

O2 have filled an acknowledgment

Oh, so they DO know how to handle a County Court claim form then?

[orfoster]

Well we will wait and see. So now they have until the 28th to put in a defence.

[postggj]

just a quick question
by the way great poc
in reply to no cca cannot process data, and remove default
what if they say claim is based on historical data with ref removel of default and payment markers
sort of relevent

[car2403]

That doesn't matter until they get the Court to set aside Judgment - which they still haven't applied to do yet!

They probably will get a chance to if the apply quickly enough, as it probably should go to trial for a decision.

Unfortunately for O2, they have failed to supply anything in relation to these accounts under a Data Protection Act Subject Access Request that was sent in July/August, despite being ordered (albeit in a Judgment by Default) to comply with the request.

"Put up or shut up" time has past, IMHO, so I might just press on...

I think I'll try this High Court Bailiff thing with the Data Protection Act Subject Access Request enforcement Judgments, as there's no Defence to that. (Them still having not complied with the requests!)

[car2403]

Letters from O2 today regarding the Data Protection Act Subject Access Request claims - 2 cheques are in the post for £130 each, which I should have in 18 days.

Nothing in relation to the Default Removal claims?!

STILL no Subject Access Request information being received?! Are they assuming that by paying my claim that they don't have to comply?

I wonder what the next few days will bring...

[car2403]

Still no further forward with this one really...

Received both of those cheques for each of the Data Protection Act claims - 2 x £130.

Still no Subject Access Request info received...

Still nothing from O2 regarding the Default removal Judgments.

I rang the Court to check and they've received nothing since they were asked for additional copies of the claim forms, which were sent back to O2 straightaway. The Court HAVEN'T received a request to set Judgment aside.

I'm seriously considering getting this transferred to the High Court and enforced by HCEO as mentioned by Nick, above. One question though - if I enforce via the HC and O2 do request Judgment to be set aside, does that mean I will need to go to the HC for the hearing? If that's the case, I might just **try** enforcing via the County Court first - even though I know that isn't effective.

Surely the time has now passed (6 weeks since Judgment was entered on 18 December) for them to request a set aside? Whats the motive behind paying out on the Data Protection Act Judgments but not mentioning the Default Judgments, I wonder?

[laylaglantz]

Just to let everyone know that I had a succesfull default removal after Abbey put it on my credit record after a succesfull bank charges claim. I sent them the first Data Subject Notice letter and received a letter within one month to inform me that my default would be removed as a gesture of goodwill. So it can be done, keep on it everybody and thanks for all the help and advice, I could never have done it without this forum x

[car2403]

2 Application Notices received from O2 today - the Court don't have this yet, so I wonder if it's in the post to them tomorrow.

O2 claiming not to have received anything about the claim prior to my letter in late December asking for them to comply with the Court Orders - this has to be rubbish, as the Court would - and did - send them the claim forms as part of the standard process of issuing the Claim. I wonder how many Default Judgments are set aside because the Defendant claims not to have received the Claim forms?

My response to this will be to request the Court turn the Applications aside, as the Court has followed CPR when issuing the claim - and the time to defend the Claim would have been at the relevant time in CPR. Regardless of this, O2 have STILL had the Judgments for 6 weeks and have ONLY just asked for it to be set aside. (In their submissions, they blame the "Christmas and New Year periods" for this late submission - but still claim it's within a reasonable time to submit it)

Interestingly, they've supplied agreement terms and conditions dated June 2007, but no evidence of my agreement to those terms - something that was specifically requested under the Data Protection Act Subject Access Request I sent, which they haven't complied with to date. (Remember, that DPA Subject Access Request they've just sent me a cheque for £130 for as they failed to comply - but still haven't provided ANYTHING!)

I'll clearly need to include the fact they've provided no evidence of my agreement to these terms, in that I've seen no agreement whatsoever.

Even more interesting is the fact they claim they have a realistic chance of defending the claim, (how, when they have no data subject information on me and no evidence of my consent to the agreement?) so they've included their defence to the claim... Which I'll post up when I get it scanned it...

[car2403]

Ok, here's the Defence;

1. I am ****** and am a ****** within the Defendant’s legal department at Wellington Street, Slough, Berkshire SL1 1YP. I make this statement on behalf of the Defendant in support of its application to set judgment aside. The matters set out below are within my own knowledge, except where I indicate to the contrary.
(A) The Defendant did not receive the claim form nor any notification that a claim had been made against it
2. On 28 December 2007, the Defendant received a letter from the Claimant referring to two judgments made against the Defendant in his favour for failure to acknowledge the claim forms for claim numbers 7MP01025 and 7MP01027. A copy of this letter is attached and is marked “02/1”.

3. This was the first notification the Defendant had received that claims had been made against it by the Claimant and accordingly, I contacted the Morpeth and Berwick County Court to obtain copies of the claim forms and judgments for both claims. These were received by the Claimant on 7 January 2008. I attach copies of the relevant date-stamped judgments marked “02/2” ”.



4. Upon receipt of the claim forms and judgments, applications to set aside were duly drafted.

5. The Defendant received no claim form or any notification whatsoever that the relevant claims were being made against it until it received the Claimant’s letter on 28 December 2007. Accordingly and in the circumstances, the Defendant submits that it has a good reason why no acknowledgement was filed and respectfully requests that judgment be set aside on these grounds. It is also respectfully averred that given the timescales involved and the intervening Christmas and New Year period it has acted promptly in submitting this application.

(B The Defendant has a real prospect of successfully defending the claim

6. In addition to having a good reason should be set-aside, the Defendant respectfully submits that it also has a prospect of successfully defending the claim.

7. The Claimant’s claim relates to the processing of his personal data by the Defendant, and in particular, to the passing is personal data to third party credit reference agencies. It is submitted that the Claimant’s case can be summarized as follows:
a. that the Defendant continued to process his personal data after the agreement between the parties came to an end
b. that this continuance to process data after the agreement came to an end (and in particular, the passing of personal data to third party credit reference agencies) constitutes both a breach of contract, as well as a failure by the Defendant to comply with a Statutory Notice pursuant to sections 10 and 12 of the Data Protection Act 1998 (“Data Protection Act”);
c. that the “Default” entry on his credit reference files as a result of the passing of his personal data to third party credit reference agencies is unwarranted and unlawful — being in breach of the Fourth Principle of the
Data Protection Act;
d. that the Defendant requires the permission of the Claimant before passing his personal details onto third party credit reference agencies.



8. The Claimant therefore claims damages in the sum of £1,000 for unlawful recission of contract as well as an order under sections 14(1) and (3) of the Data Protection Act requiring the removal of the Default information and ‘any other prejudicial information” from all credit reference agencies.

9. It is denied by the Defendant that it has acted in a vv unlawfully or in breach of contract.


(a) The Agreement has not been terminated

10. The agreement between the parties was entered into for the provision of mobile
phone services and was subject to 02’s Pay Mnh1y Consumer Service Terms &
Conditions (April 2004) (“the Terms and Conditions”) A copy of these terms and
conditions is attached and marked “Exhibit 02 4

11. Clause 7.1 of the Terms and Conditions provides:
7.] We can at our discretion and without notice bar your Mobile Phone from making calls (other than to the emergency services and disconnect it from the
Network:
(a) f any of the circumstances in paragraphs &1 or 6.4 apply to you.


12. Clause 8.1 provides:

8.1 (a) you fail to pay Charges when they are due

13. In accordance with Clause 7.1, on 19 November 2004, the Claimant was disconnected for non-payment of charges on his account. At the date of disconnection, the Claimant had an outstanding balance of390.38.



14. For the above reasons, it is accordingly denied by the Defendant that the Agreement was terminated as is averred by the Claimant in his Particulars of Claim. The Claimant was disconnected from the Network in accordance with the Agreement but the Agreement was not terminated. As such, the Agreement subsists and the Defendant is still authorised to process the Claimant’s data by virtue of Clause 16.2 which provides:


16.2 You authorise us to use and disclose. UK and abroad, information about you and your use of the Service and how you conduct your account for the purposes of operating your providing you with the Service or as required for reasons or national security or under law to our associated companies, partners or any telecommunications company, debt collection agency or credit reference agency and fraud prevention agency or governmental and other users of these agencies who may use this information for the same purpose as us. You agree to this information being used by us for credit control purpose and fraud and crime detection and prevention. You can obtain further details from our public registration held by the Information Commissioner. If you wish to have details of the credit reference or the fraud prevention agencies from whom we obtain and with whom we record information about you or receive a copy (we may charge a fee) of the information we hold about you, please contact us by writing to the Data Controller at 02 (UK) Limited, 260 Bath Road, Slough, SL1 4DX or, if you have eCare, at the address we notify to you by email, stating your full name, address, account number and Mo bile Phone number.

15. In accordance with the above clause, the Claimants data was processed for the purposes of operating the account and credit control and it is therefore denied that the Defendant acted in any way unlawfully or in breach of contract.

(b) Section 10 of the Data Protection Act does not apply

16. Further, it is also for this reason that the Defendant denies that it has acted in breach of section 10 of the Data Protection Act as is alleged by the Claimant. Section 10 of the DPA states:

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 that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another d
(b) that damage or distress is or would be unwarranted.
(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...

17. The first condition mentioned in subsection 2 above is contained in paragraph 1 of Schedule 2 Data Protection Act and provides that “(1) The consent of the data subject is given “. For the reasons given above, it is averred that the Agreement had not been terminated but that the Claimant had simply been disconnected in accordance with Clause 7.1 of the Agreement. As the Agreement still subsists, the Defendant still had the authority given to it by the Claimant to process his personal data, by virtue of Clause 16.2 of the Agreement.



18. The second condition in paragraph 2 of Schedule 2 of the Data Protection Act states “(2) The processing is necessary (a) for the performance of a contract to which the data subject is a party, (b) .. .(not applicable)”.



19. Clause 5.3 of the agreement provides