Worried about court- help needed.

[thatfellow]

Hello,

 

I am due in court on 10th October against Sainsbury's Bank. I originally requested the repayment of unlawful charges and the removal of my default notice. Sainsbury's have repaid my charges in full, but refused to remove my default notice. Consequently, I am going to court.

 

But here's the thing: I'm really unsure as to my argument re. default notice. My Particulars of Claim make reference to s.14 of the Data Protection Act and 'innacurate personal data', but I am unsure how to argue this in court. Would the court be able to enforce s.14 against Sainsbury's- or would it only be enforceable against Equifax, Callcredit, Experian, etc.? And does it matter that they are not parties to the case?

 

I never thought I would have to go to court, but with no settlement forthcoming it seems that I will have to do so. Any clear explanation of my argument regarding the default marker would be much appreciated, together with any guidance as to what I should add to my court bundle in regards to the removal of default markers. I don't want to mess this all up at the last minute!

 

Many thanks,

 

Michael

[Varangian3]

The credit reference agencies are just posting what the banks tell them. If the court orders the default to be removed then Sainsbury's will have to notify the CRAs to change their records.

 

You haven't given any detail about the default. To argue for the default to be removed you should be able to demonstrate that the total of penalty charges placed on the account before the date of the default exceeds the amount that the account was defaulted for. If it does not, then you do not have a sound argument for its removal as it was not wholly because of the penalties.

 

Can you demonstrate this?

[thatfellow]

My account was defaulted in May 2006 for £821. The total amount of penalty charges applied at that point was £650.

 

Although this does not exceed the default total, my credit limit was £500 and but for these charges I would never have been in a position where a default would have been applied- if you see what I mean?

 

Contractual interest on these charges, as well as the statutory 8% would have probably pushed the total cost of the charges over the default amount too.

 

Also, if Sainsbury's have already paid the unlawful charges to me, am I even entitled to the statutory interest claimed in my particulars?

 

Thanks for your help.

[thatfellow]

Sorry to bump, but I am quite desperate for an answer to the above- court papers have to go off in the next few days, and I want to know whether I am wasting my time!

 

Thanks.

[zootscoot]

You may have difficulty in proving that the default was inaccurate data because you have accepted repayment in full. This means the court will not be willing to discuss the issue of whether the charges are lawful as that part of the claim is settled. Without showing that the charges are unlawful and wrongly applied, you will not be able to establish that the data is inaccurate. This was the experience of one of our moderators Jonni2bad. However, a different judge may decide differently.

 

Alternatively you could amend your particulars of claim to include a declaration that the charges were unlawful. This will allow you to argue the penalty issue and UTCCRs necesary to establish that the data they are processing is unlawful. To do this you would need to do an application to amend using form N244.

 

All the best

 

Zoot

[thatfellow]

The 'repayment' was carried out unilaterally by Sainsbury's, and I wrote to them - and the court = rejecting the settlement. Am I right in thinking that I am still free to argue that the charges are unlawful, as per my particulars?

 

More specifically, are there any templates for statements of evidence available on the site that deal with default removal? The only ones I can see don't tend to mention this issue. Would it just be a case of saying: 'in light of the unlawfulness of the charges, this information is duff and as per s.14 should be removed, etc.?' (paraphrasing, obviously...!)

[thatfellow]

OK, well this is what I've cobbled together. Any thoughts, suggestions appreciated:

Default Notice Removal

20. The Defendant applied a default marker, relating to the Claimant’s credit card account, to the Claimant’s credit file on or around April 2006. The ‘default balance’ was £832.

21. Under s.14 (1) of the Data Protection Act 1998, a data controller may be ordered by the court to ‘rectify, block, erase or destroy’ such inaccurate personal data, or ‘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.’

22. The charges, amounting to some £650, should not - for the reasons outlined above - have been applied to the Claimant’s account by the Defendant. Such charges accounted for a very substantial proportion of the default balance (some 78%).

23. But for the imposition of these penalty charges, and the consequent unaffordable increases in the monthly minimum payments owed to the Defendant (occasioning further penalty fees), the balance of the Claimant’s credit card would not have exceeded the credit limit of £500 agreed with the Defendant bank. Without the application of these charges, the Claimant therefore submits that a default notice could not have been applied to the Claimant’s credit file.

24. The Claimant therefore contends that this default marker constituted – and continues to constitute - ‘inaccurate personal data’ within the terms of the Data Protection Act 1998 (DPA 1998).

25. The Claimant asks the court to use the powers available to it by virtue of section 14(1) DPA 1998 to order the erasure of this inaccurate data from the Defendant’s records

26. The Claimant also asks that an order under section 14(3) DPA 1998 be made to the effect that any third parties – in particular, any credit reference agencies – to whom the Defendant has disclosed the inaccurate data, be informed of such erasure.

[cajdad]

Can't you also make the point that the charges have actually been repaid to you? This would reinforce the point that they shouldn't have been applied in the first place.

 

You might have to be careful how you word it though as, depending on what Sainsbury's said to you, they might have made a "goodwill gesture" rather than a repayment of the charges. Or they might have said "without prejudice" in which case I'm not sure if you can mention it.