thatfellow v. Sainsbury's Bank (HBOS) - The final countdown!

[thatfellow]

Hello all,

 

I'm sorry for posting up my case at such a late stage, but I have been picking up advice, piecemeal, for the past 6 months or so from other sources. Thanks to anyone who has helped me with this!

 

My claim was for:

 

• £650 of unlawful charges
  
• Removal of default marker from register (on basis of Data Protection Act)

Sainsbury's agreed to refund my charges, plus statutory interest (although, to date, I have not received a thin dime of this - the money went straight to Blair, Oliver Scott and the balance hasn't been forwarded.)

 

To explain the other half of my claim, I should give you some background. I was defaulted in May 2006 for a balance of £832. £650 of this consisted of bank charges - almost 80%.

 

My statement of evidence puts it like this:

 

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.

 

Sainsbury's argue in their Witness Statement (received today) that:

1. They have satisfied the money claim in full and therefore have no case to answer on the validity of their charges. Furthermore, there were occasions on which I went over my limit and was not charged (oh! the magnanimity!).
   
2. The default marker had nothing to do with charges - it reflected persistent failure to make payments on time, going over credit limit, etc.

My planned response to this is as follows:

1. The fact that I was not charged when, according to my terms and conditions, I ought to have been is neither here nor there. I am contesting the validity of those terms and conditions per se. If anything, the fact that Sainsbury's did not feel compelled to recover charges in those months strengthens my claim that they do not represent the loss (if any) that they incur by my breach.
   
2. The money claim has been satisfied in full, however, the validity of the charges has a direct bearing on the default notice applied. But for these charges, I would not have been defaulted. My persistent missing of payments was purely and simply down to my inability to afford the inflated minimum payments that resulted from this. A familiar tale!

I am due in Woolwich County Court on Wednesday 10th October. Although I am sure of my arguments, I am worried that:

• Sainsbury's will argue, succesfully, that my claim for charges and my claim for a Data Protection Act order are two separate claims (even though I have made it clear in my particulars and subsequent correspondence that they are intrinsically linked). Having satisfied the former, they will say that the default marker is fair dinkum because of my persistent late payments, etc.
  
• If I lose the second half of my claim, or if the judge decides that Sainsbury's have no case to answer, will I be liable for the costs of HBOS lawyers? What is the maximum/minimum downside if I am unsuccessful in persuading the judge of my case?

I would be grateful for any comments, advice ahead of 10th October. My main concern is that my default argument is too weak - I know that other default claims have succeeded, but only when the unlawful charges equal/exceed the full amount of the default. I still think that it is arguable, though.

 

If anyone has any questions about their own claim, I am happy to pass on any advice, letters that I used in my own case.

[wiggins]

hi thatfellow thats very interesting.

I too am in the middle of claiming from HBOS and i have received 3 or 4 "Default notice" letters. I too have claimed that the only reason i have been served this notice is due to charges being applied to my account, which has caused me to exceed the overdraft limit.

 

Check out my thread in the HBOS section

 

"Default notice issued"

[thatfellow]

hi wiggins,

 

Yes, although my claim is for credit card charges, I think that our arguments are more or less of a piece.

[wiggins]

Just wondered if you had any update on your case thatfellow

[thatfellow]

No update, I'm afraid. I guess I'll see them in court!

 

Any guidance or reassurance on the points in my first post would be much appreciated.

[overflow]

Hi Thatfellow.

 

Ive just been reading this and IMHO I think your in with a good chance.

 

How can they try and separate the two claims when its obvious that had they not levied charges onto your account then you would have had no need to go over the limit.

I think anyone can see the two go hand in hand.

Im sorry cant advise you on costs you may or may not incur though.

Tomorrow take a deep breath walk in with your head held high and go for it.

Ill be thinking of you and willing you on. The very best of luck.

Please let us all know what the outcome is .

 

Regards

[overflow]

OOOOOOOOOOOOPPPPPPPPPPSSSSSSSS

 

Not tomorrow , Silly me .

 

Good Luck for the 10th.

:o

[thatfellow]

Thanks very much overflow.

[thatfellow]

Well, I've just got back from court and I feel as if I've achieved a messy score draw.

 

Hung around waiting outside Woolwich County Court No. 2 for 90 minutes whilst other bank charges claimants filed in and out (it was a block list). About 15 minutes before my hearing a ruffled looking old boy of about 60 approaches me and asks 'Mr Thatfellow'?

 

'That's me', I reply.

 

 

'I'm counsel for Sainsbury's Bank. Are you represented?' he asks.

 

Counsel! Good to see that Sainsbury's are taking this seriously, I think (although I suspect the only silk that this chap has seen in his time is Silk Cut). He spends the remaining wait doing some debt collecting on his mobile. What a renaissance man- debt collector, barrister. Hats off.

 

He reads my bundle - apparently for the first time - and at one point comes over to ask me whether I am a law student. 'It's very well pleaded.', he tells me. 'I had some help' (thanks you lot!), I reply.

 

Into court and I get the impression from the outset that the Judge is not going to be that sympathetic. She starts by asking me why I think the case should not be struck out in the way that Sainsbury's suggest. She repeats the assertion of Sainsbury's that I was defaulted for 'misusing the account' (i.e. missing payments, going over my limit) and that the register is a fair reflection of this.

 

I argue that this was because of the accrual of unlawful charges. She makes it clear that she is not going to deal with that issue today. I argue, as per my statement of evidence, that the two issues are intrinsically linked. I go on about there being a definite link between the two things.

 

She warms to the theme as I explain my side of things - the clincher seems to be the fact that Sainsbury's defaulted me for being persistently over my limit to the tune of a few hundred pounds and failing to pay off the balance. At the time of default, I was making repayments.

 

I explain that I have no way of knowing the reasons for which Sainsbury's defaulted me, and add that it would have been useful if they had provided such information. She agrees and asks my learned friend why this has not been done. He ums-and-ahs and says, more or less, 'good question'. I continue and say that if I have been defaulted for going over the limit, there is a clear link between the level of charges and the default. They made up 80% of my balance- presumably Sainsbury's would not have defaulted me had I been within my credit limit.

 

At this point, the judge stops, pauses, and tells the Defendant that 'Mr Thatfellow's argument has some force'. Before I have time to be crushed by the weight of her faint praise, she asks me whether I would like to allow Sainsbury's time to disclose the exact reasons for my default and the process involved in making this decision. I agree to this and she gives my learned friend 28 days to comply with this notice, and 6 months for me to decide whether I want to pursue the claim.

 

She then explains that if I were to pursue this, it may well have to go to a multitrack hearing and that I would therefore be liable for costs. Swallowing something hard and jagged, I say that I understand this and will go away and think about how I want to proceed from here.

 

So it's a rather inconclusive result- the only hope is that the High Court comes to a judgement before I need to give a response to Sainsbury's. I don't want to be liable for costs. Counsel seemed a bit ****ed off at the end. I think he was expecting to put this one to bed today. That's something I suppose.

 

Thanks again to everyone on here who has helped me over the last 6 months or so. Any final pointers on how to proceed would be most appreciated.