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

[car2403]

Blooming 'eck, Blossomandebony, have you read my mind? (You're right about my thread, BTW)

I was thinking of doing that, but I want to see what the Courts reaction to the application is first.

If the Court won't entertain the application, I'm on a winner.

If they will and set judgment aside, I'll ask O2 to write the balances down - currently £9 (I know!) and £330-something - (although they've offered reduced settlements in the past, so I'll remind them of this) which has to be worth it for them not having to defend the claim?

If they choose not to settle, I'll send a CPR Part 18 request for more info - then go back to the Court on the other Claims for Data Protection Act Subject Access Request enforcement and ask for an order forcing their compliance.

I also intend to highlight to the Judge in the Application Hearing (if there is one!) that I've taken action against O2 for failure to comply with my Subject Access Request, under which they've paid what was ordered - but they STILL haven't complied with the request! "How can they say they have a realistic prospect of defending the claim, should Judgment be set aside, if they have failed to provide any data that they hold on me under a Data Protection Act Subject Access Request and a CPR request, sir?", I'll say...

[orfoster]

http://www.consumeractiongroup.co.uk...ml#post1355583

More to follow but I can't concentrate any more on typing (long day).

[Blossomandebony]

Chris,

I think you have all bases covered in this one. You've done the research and bought the T shirt!

If, and that's a big IF, this does go to court, you will know the exact history of the dispute unlike any bog standard solicitor they send, who will probably not have the foggiest . . .

BAE

[car2403]

Thanks BAE - it's nice to hear someone say that and offer support... I'm not blazing the trial as in I'm the first to do this, but it REALLY feels like that at times...

I've received a Notice of Hearing, set for 14 April in the morning, so I now need to plan my response. I'm not sure which part of CPR this comes from, but I remember from Part 24 (Summary Judgment) that I need to give a response and supporting documentation to the other side/Court at least 7 days before the hearing.

I've had a quick look over CPR and can't find this in relation to an Application hearing?

[dad]

Car,

This bit of the CPR deals with applications:

Part 23General Rules about Applications for Court Orders

[car2403]

Thanks dad - I did look at that, but it doesn't outline rule surrounding Application Hearings?

[Nick W]

The Order giving notice of hearing should say if any directions have been given, ie by xxxx date the parties must send to each other and to the court copies of all documents on which they rely.

However, good practice would suggest that if they are bringing the application, they need to serve you (generally 14 or 21 days before) and then you file a reply 7 days before.

You have need to served and filed in order to rely on at the hearing.

But of course, look at the time estimate. No point filing 20 page statement if the allocation is 20 mins!

Nick

[car2403]

There are no disclosure details in the order - just says the date/time of the application hearing and that I should attend.

I don't have that much to say really?

They didn't comply with CPR timescales to acknowledge/defend, the fact they were closed should be irrelevant.

True they may think they have a realistic chance of defending, but they should have defended at the right time - not after JBD was entered against them.

Other than what I've already said in the claim, I can't see what else I can add. I suppose I should tell the Court that I sued (separate claim) for Data Protection Act Subject Access Request enforcement as O2 didn't reply - the Court entered JBD on that too and O2 have paid up but they still haven't complied with the request! I could argue I did that as a pre-action protocol to this claim (insomuch as I need to know what O2 are relying on as evidence of the agreement and account statements, etc) and without that information they can't have a realistic chance of defending.

I have a feeling no matter what I say, the Judge will already know what he is going to do before the hearing - he might just want to give them a hard time and make them work for their money on this one.

[car2403]

I did get a letter from them asking me to tell the Court that they had complied with the Data Protection Act S.A.R - (Subject Access Request) Judgment, in that they've paid the £130 that I won from them in that claim - I've wrote back to them reminding that the compliance with the S.A.R - (Subject Access Request) was part of the claim, so I won't do that until they've provided the information I asked for. (Which they still haven't sent, yet!)

I sent a copy of that letter to the O2 legal team and told them they need to ensure they comply with the Data Protection Act S.A.R - (Subject Access Request) as I see that as paramount under their application to set Judgment aside on the Default issues - I hope to be able to say to the Judge that they still haven't complied, providing any evidence of my agreement with them, and that, as a result, Judgment shouldn't be set aside as they've produced nothing to say what I did/didn't agree to originally - (Without that they don't have a leg to stand on) I've also asked for complete disclosure, including all that, under CPR so I can respond to their application notice. I've given them 14 days to comply, or I might ask the Court to order them to comply.

Nothing else going on here yet...

[car2403]

O2 are playing silly b*ggers here, IMHO...

They've forwarded my letter (saying they've paid the S.A.R. enforcement damages/costs, but haven't complied with the S.A.R. request yet) to the Court and cc'd me a copy, where they have asked the Court to mark the Judgment as satisfied because I've confirmed they've paid me!

Of course, the Judge is having none of it and the Court has wrote back to them asking them to confirm if they've supplied the S.A.R. data, as the Judgment included that as part of the claim - which is exactly what I said to them, so why waste the Courts time? Just supply the data I've asked for! Grrrr....

Interestingly, the Court has said they must confirm this before 11 March? Doesn't say what will happen after that date though... Oh well...

[car2403]

Aye, aye... As I was typing that last post, the Postie just came with 2 x S.A.R. response packs. Looks like O2 can do something right after all, even if it is almost 4 months late!
Looking through it, it's just screenshots of displays showing payments and charges - there's no breakdown of costs applied, along with a complete lack of agreement. (Although they've provided terms and conditions previously, but these are the current T&C's, so where is the original T&C's that allows variation please?)

Here's the T&C's from their site; (notice the lack of "use of your information" headers - they don't even allow them to share my data with a CRA... Pity s.35 Data Protection Act 1984 was repealed, or that could have been a criminal offence!)

Your airtime contract - Terms & Conditions - O2

O2 Privacy policy - Terms & Conditions - O2

I may have to write back and point out what they've sent me will be binding on them in the Judgment set aside hearing on 14 April, so if they can't provide a copy of an agreement to which I "agreed" to, they may want to reconsider their options here...

[jysmystry]

oh dear me. Those poor little sausages! The words "Hole" and "Dig" spring to mind here.

As was recently discussed in one of my posts and in the words of Napoleon Bonaparte..

Gentlemen, when the enemy is committed to a mistake we must not interrupt him too soon.

Maybe keep that particular barrel of powder dry for the future, we don't want them to realise their case now firmly dug its foundations in the sand now do we

[car2403]

I'm really struggling to compose a reply to this application to set aside judgment without using the terms "the Defendant is completely wrong" and "the Defendant has not met the challenges laid down in the claim".

It almost seems to me that O2 hasn't fully read the POC here - if they have, they are ignoring them!;

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

In the meantime, the screws are turning trying to organise a set aside and settlement by consent. Again, I believe I'm being seriously underestimated here. (Thanks to Penfold for the PM support on this one!)

I can't help but feel that someone is banging their bloodied head against a brick wall here! I also can't help to think that it's not me doing the banging!

I can't see how continuing with this is in their interests - bearing in mind they have NO EVIDENCE of any agreement to any terms and conditions! (Confirmed by irrefuable evidence they have supplied to me, in the form of a Data Protection Act Subject Access Request response!)

O2 have been nothing but dismissive of me in their approach here - 1 of claims had its inital approaches totally unresponded to until the Default Judgment was entered against them, in fact! Perhaps O2 are so up themselves that they think they will be the first company to successfully defend against the Surlybonds arguments for Default removal?

I won't be so arrogant as to not prepare a proper response to this application to set aside, (it is tempting!) as that just isn't gravy, but I do feel I'm going to get RSI for no reason!

What would Napolean say about that, then?

[Penfold92]

Have you got the application yet? Post or PM me it please. We can then put together a reply that you can hand deliver to the Court and give the Defence sol just before the hearing...bless him as he will do the same to you no doubt...

Penfold

[car2403]

Application notices and Defences are in post #73 onwards, earlier in the thread;

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