HSBC managed account - Trying to remove a invalid? default

[car2403]

Hiya Chris it looks like you have it all fairly straight now one thing I will say, the law is a very precise thing, it doesn't matter if the default figure is £300 wrong or £30 wrong or even a penny, its wrong full stop .

 

pete

 

To quote;

 

The court might overlook an error which could be described as no more than de minimus, but Mr Gruffydd realistically does not contend that the error with which we are concerned can be so described.

 

The lender should be able to calculate, as I have already said, quite easily, what sum is due whereas the ordinary hirer may not know. Section 88(1)(b) does not, in terms, refer to a sum of money only because it applies to all types of breach of contract. Section 88(1)© is different because in the case of a breach which cannot be remedied compensation can only be expressed in terms of money so the subsection is able to refer to 'the sum (if any) required to be paid'.

It is also worth remembering that a valid notice pursuant to s 88 can lead to the position in which the lender is able to repossess the goods with all the disruption that may cause to a hirer who, if Mr Gruffydd is right, may be in a position to pay a lesser sum which is the sum which should be paid but of which he has no knowledge because the notice has not been

correctly drawn.

 

The Court then goes on to look at other Acts of Parliament that requires Notices to be issued before taking action under them, comparing the CCA to Property Law, for example - then uses this as persuasive argument to say the same should be applied here, IMO.

 

Of course, the issue with using precedent like this is that it's our view of the Judgment - the other side will likely argue against out view and the Judge will decide what applies where, if anything at all. Welcome to the "Judge Lottery" that is the County Court!

[chris1977]

Fingers crossed I get the right judge then Chris

 

I've just been sifting through all of my old statements and I've noticed something - the bank allegedly sent me the final demand in June, 2 days after they offered me a refund in respect of my bank charges claim. They subsequently credited my account in July with the refund, using this to offset some of the default balance, then when I complained about the fact that I couldn't access these funds, they BACS transferred the money into another account at my request. Then, the following day the default was recorded with the CRAs.

 

Now, I don't think they have an automatic right to offset any default with credits paid into my account, however, I'm a little concerned that having received the funds before the default was recorded, this could screw me! Also, I notice on the offer letter for my refund of charges it states that this offer is in respect of all charges up to the end of June, however, there was a charge in April that was not included in my schedule of charges and this is the charge I was relying on highlighting for the purpose of claiming that the default notice was inaccurate. Does it help me in this case that their offer was without prejudice??

 

I'm a little worried now that these facts could have a negative bearing on my claim and would appreciate any advice.

[car2403]

The question is, does the default amount on the Default Notice include the penalty charges applied? Seems so to me, so I think you're fine.

[chris1977]

The question is, does the default amount on the Default Notice include the penalty charges applied? Seems so to me, so I think you're fine.

 

Technically Chris, it includes all of the penalty charges applied to my account over the 6 years prior to my claiming them back. But the Default Notice (or final demand letter in this case) was allegedly sent to me AFTER they had made me an offer so it could be argued that, as I accepted their offer, the amount on the Default Notice was accurate. Am I reading too much into this?

[car2403]

It still includes the charge applied after you accepted the offer though.

 

I wouldn't worry about it too much, as I have a feeling it won't see a Courtroom anyway, as my claim never did.

[chris1977]

It still includes the charge applied after you accepted the offer though.

 

But their letter stated that the offer was in respect of all charges applied up to that date, which technically includes the one charge that I did not claim

 

I wouldn't worry about it too much, as I have a feeling it won't see a Courtroom anyway, as my claim never did.

 

You're probably right Chris, I guess I'm just trying to pre-empt what they might offer up as a defence.

[chris1977]

It still includes the charge applied after you accepted the offer though.

 

I've just re-read your post Chris - the offer was made in June but the charge was applied in April, so technically their offer does include this charge. That said, the offer was made without prejudice and, as you said before this works both ways I suppose....

[chris1977]

OK here's my draft POC (largely borrowed from Car2403's Barclays thread - Cheers Chris ):

 

1. I, the Claimant in this case, am a litigant in person and I make this Particulars of Claim statement from my own knowledge and experience.

 

2. The Claimant held a Current Account and overdraft with the Defendant since 1996, numbered ******** with a sorting code of ******.

 

3. The overdraft agreement is a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

 

4. On 15 January 2008, a request was made by the Claimant under s.77 & s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain a copy of the originally executed credit agreement that the alleged debt refers to. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on the 16 January 2008, which gave the Claimant 28 days from receipt of the request, to provide said documentation; some 9 working days more than the prescribed period stipulated in Regulation 2 of CCA 1974 (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was, therefore, 12 February 2008.

 

5. The Claimant claims against the Defendant, in relation to this agreement, in the following terms;

 

6. The Claimant, having conducted an audit of his Credit Reference Files held with a Credit Reference Agency, discovered that the Defendant had recorded a “Default” against the Claimant in relation to his Current Account on 15 August 2007, with an original default balance of £1,569. The true balance as at today’s date is £1318.

 

7. The Defendant has failed to supply any originally executed documentation relating to the current account or overdraft agreement as requested in the Claimant’s request detailed in paragraph 4, above.

 

8. The Defendant has previously advised, via Metropolitan Collection Services, that the overdraft account is not a regulated credit agreement under the CCA 1974. The Claimant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION: The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

9. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6) of the CCA 1974.

 

10. The Defendant has failed to provide a document that complies with the request referred to in paragraph 4 above. Accordingly, the Defendant is “in default” under s.78(6) and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(a) CCA 1974.

 

11. The Claimant, therefore, puts the Defendant to strict proof of;

11.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

11.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

11.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

12. In one of its replies to the Claimants request at paragraph 4, above, dated 19 February 2008, the Defendant enclosed an alleged Final Demand letter said to be issued on 28 June 2007. The enclosed Final Demand letter, which does not conform to the prescribed form and content of a Default Notice under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, was personally signed and dated 19 February 2008, some 6 months after the alleged Default. Said letter was addressed to the Claimant’s current address and not the address which was recorded by the bank as the Claimant’s address at the time of the alleged Default. The Claimant therefore contends that the Final Demand letter produced on 19 February 2008 by the Defendant was a true copy of the original default letter, as previously requested by the Claimant.

 

13. The Claimant is prepared to swear on oath at trial that such Final Demand letter was not received at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that letter. Should the Defendant be able to prove the issue and receipt of said Final Demand letter, the Claimant avers that this letter does not conform to the form and content prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

14. The Claimant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

15. In addition, during the period between the alleged issue of the Final Demand letter and the date of the alleged default, the Claimant notified the Defendant during a personal visit to the Bracknell Branch Manager, that he was not in receipt of any correspondence indicating that there was a problem with the account. This visit was followed up with a number of emails between the Claimant and said Branch Manager in an attempt to rectify the situation which was highlighted to the Claimant during said visit. Should the Defendant be able to prove Paragraphs 11 and 13 above, the Claimant avers that attempts were made by the Claimant to bring the account in order during the 28 day period granted by the Final Demand letter and that the Defendant failed to acknowledge those efforts or provide the Claimant with feedback or details of what would be required to avoid the recording of the alleged default.

 

16. In addition to this, between 14/08/2001 and 15/08/2007 the Defendant debited numerous charges from the Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account totaled £330.50.

 

17. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to levy these charges.

 

18. If the Defendant is able to establish that the contract did contain such terms, the Claimant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

 

19. The level of default which the Defendant claimed existed in their alleged Final Demand was £1,569.41 – some £1,238.91 more than the amount of charges which the Defendant had applied to the Claimants account. The Claimant asserts that had the Defendant been acting lawfully in their application of charges, there would have been no default.

 

20. The Default and Termination of the overdraft agreement has, therefore, been completed unlawfully and not within the prescribed form required by the Consumer Credit Act 1974.

 

21. In addition to this, as there is no credit agreement provided that complies with the Act, the Defendant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE THE AGREEMENT CORRECTLY;

 

22. In relation to paragraph 15 and 17 of these particulars of claim, failure of a Default Notice or a Termination Notice to be accurate not only invalidates the notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

DATA PROTECTION ACT 1998:

 

23. The Claimant contests that the Defendant’s continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998.

 

 

24. The Claimant’s written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendant’s “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to these alleged agreements to be wholly unwarranted and unlawful.

 

25. The Claimant is afforded principled rights under the Data Protection Act 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

 

26. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

27. The claimant asserts, therefore, that the Final Demand letter amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

28. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of the Default record

 

29. This is confirmed in Principle 2 of the Data Protection Act, which states:

 

 

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

30. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

31. After seeing other cases being handled, the Claimant is aware that Financial Institutions and Credit Reference Agencies are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they add that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the Data Protection Act 1998.

32. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

33. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

“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 for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

 

 

(b) that damage or distress is or would be unwarranted.”

 

 

34. However, there ar some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

 

“10. - (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,

 

or;

 

 

(b)in such other cases as may be prescribed by the Secretary of State by order.”

 

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

We must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption from the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

 

 

“1. The data subject has given his consent to the processing.

 

 

2. The processing is necessary-

 

 

(a) for the performance of a contract to which the data subject is a party, or

 

 

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

 

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

 

 

1. The data subject has given his consent to the processing.

 

35. That consent, as no legal agreement exists, therefore, also does not exist.

 

 

2. The processing is necessary-

 

 

(a) for the performance of a contract to which the data subject is a party, or

 

 

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

 

36. For both (a) and (b), there is no contract in existence.

 

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

 

37. According to the Information Commissioners Office (Information Commissioners Office), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

38. With reference to the Information Commissioners Office again, this is interpreted as “anything that affects the data subject as a matter of life and death”. The Claimant does not believe that this case could be described as anything like a matter of life or death.

 

39. So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of the Claimant’s data at his discretion, nor any exemption. I can then only assume that the Defendant is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

40. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 Data Protection Act 1998.

 

41. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

42. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

43. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

44. Additionally, the claimant requests an order from the Court under section 14 (1) of The Data Protection Act 1998 for the removal of the Default records 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.

45. The Claimant further claims the Court fee of £??.

 

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

46.1. 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;

46.2. An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

46.3. Costs, at the discretion of the Court

[car2403]

I've just re-read your post Chris - the offer was made in June but the charge was applied in April, so technically their offer does include this charge. That said, the offer was made without prejudice and, as you said before this works both ways I suppose....

 

It does work both ways, so this proves nothing. In fact, the issue you raised by claiming the charges back was never resolved and is still outstanind - so long as this wasn't a full and final settlement of all claims against them, whether known or not, you should be ok. Even if it is, you can argue you weren't aware of your rights and the possibility of claiming for default removal at a later stage - which you clearly weren't, as a litigant in person at that time.

 

The POC are looking good - personally, if I was using them again, I wouldn't have included most of the DPA stuff from the Surleybond's letter at the start. This sits better in a witness statement, I reckon? Doesn't matter now as you've done them, but it might be worth revising it to get it to fit in to MCOL if you want to issue online. (Mine had to go via the local Court because the POC were so long) On the other hand, trying to condense that without losing the impact it has may be difficult... just thinking out loud, really...

[chris1977]

The POC are looking good - personally, if I was using them again, I wouldn't have included most of the Data Protection Act stuff from the Surleybond's letter at the start. This sits better in a witness statement, I reckon? Doesn't matter now as you've done them, but it might be worth revising it to get it to fit in to MCOL if you want to issue online. (Mine had to go via the local Court because the POC were so long) On the other hand, trying to condense that without losing the impact it has may be difficult... just thinking out loud, really...

 

I see what you mean about the Surleybonds stuff - I reckon this could be condensed and still contain the salient points. I'd rather go the MCOL route so I might see if I can strip it down a little without losing any impact. Thanks for all your help so far Chris

[Castlebest]

I would not try to strip it down to fit into MCOL use a paper form. The POC section of MCOL is very small for a full set of POC's

 

pete

[chris1977]

I would not try to strip it down to fit into MCOL use a paper form. The POC section of MCOL is very small for a full set of POC's

 

pete

 

Hi Pete,

 

You're not kidding are you! 1080 characters? Pah! Paper form it is then!

 

I've stripped it down a little, taking out much of the Surleybonds stuff re: Data Protection Act and this is what I intend to use as my POC. I'd be grateful for anyone's comments, particularly looking at the DPA section as having stripped it down I want to make sure it still makes sense. I think it does, but then I know what I'm trying to say

 

1. I, the Claimant in this case, am a litigant in person and I make this Particulars of Claim statement from my own knowledge and experience.

 

2. The Claimant held a Current Account and overdraft with the Defendant since 1996, numbered ******** with a sorting code of ******.

 

3. The overdraft agreement is a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

 

4. On 15 January 2008, a request was made by the Claimant under s.77 & s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain a copy of the originally executed credit agreement that the alleged debt refers to. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on the 16 January 2008, which gave the Claimant 28 days from receipt of the request, to provide said documentation; some 9 working days more than the prescribed period stipulated in Regulation 2 of CCA 1974 (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was, therefore, 12 February 2008.

 

5. The Claimant claims against the Defendant, in relation to this agreement, in the following terms;

 

6. The Claimant, having conducted an audit of his Credit Reference Files held with a Credit Reference Agency, discovered that the Defendant had recorded a “Default” against the Claimant in relation to his Current Account on 15 August 2007, with an original default balance of £1,569. The true balance as at today’s date is £1318.

 

7. The Defendant has failed to supply any originally executed documentation relating to the current account or overdraft agreement as requested in the Claimant’s request detailed in paragraph 4, above.

 

8. The Defendant has previously advised, via Metropolitan Collection Services, that the overdraft account is not a regulated credit agreement under the CCA 1974. The Claimant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10 (1) (a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

9. The Claimant avers, therefore, that the Defendant is in default of the Claimant’s request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6) of the CCA 1974.

 

10. The Defendant has failed to provide a document that complies with the request referred to in paragraph 4 above. Accordingly, the Defendant is “in default” under s.78(6) and the Claimant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Defendant has also committed an offence under s.78(6)(a) CCA 1974.

 

11. The Claimant, therefore, puts the Defendant to strict proof of;

11.1. The contractual agreement between both parties in relation to the Current Account, allowing the Claimant to request overdraft facilities and which terms and conditions were included as part of that agreement;

11.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Claimant at the time of application for an overdraft by the Claimant;

11.3. Where no such agreement can be provided, copies of original documentation sent to the Claimant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

12. In one of its replies to the Claimants request at paragraph 4, above, dated 19 February 2008, the Defendant enclosed an alleged Final Demand letter said to be issued on 28 June 2007. The enclosed Final Demand letter, which does not conform to the prescribed form and content of a Default Notice under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, was personally signed and dated 19 February 2008, some 6 months after the alleged Default. Said letter was addressed to the Claimant’s current address and not the address which was recorded by the bank as the Claimant’s address at the time said letter was allegedly presented. The Claimant therefore contends that the Final Demand letter provided on 19 February 2008 by the Defendant was a true copy of the original default letter, as previously requested by the Claimant.

 

13. The Claimant is prepared to swear on oath at trial that such Final Demand letter was not received at the time the agreement was terminated by the Defendant and, accordingly, puts the Defendant to strict proof of said issue and receipt of that letter. Should the Defendant be able to prove the issue and receipt of said Final Demand letter, the Claimant avers that this letter does not conform to the form and content prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

14. The Claimant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Defendant is not entitled to rely on that default or termination in Defaulting the Claimant.

 

15. In addition, during the period between the alleged issue of the Final Demand letter and the date of the alleged default, the Claimant notified the Defendant during a personal visit to the Bracknell Branch Manager, that he was not in receipt of any correspondence indicating that there was a problem with the account. This visit was followed up with a number of emails between the Claimant and said Branch Manager in an attempt to rectify the situation which was highlighted to the Claimant during said visit. Should the Defendant be able to prove Paragraphs 11 and 13 above, the Claimant avers that attempts were made by the Claimant to bring the account in order during the 28 day period granted by the Final Demand letter and that the Defendant failed to acknowledge those efforts or provide the Claimant with feedback or details of what would further action would be required to avoid the recording of the alleged default.

 

16. In addition to this, between 14/08/2001 and 15/08/2007 the Defendant debited numerous charges from the Claimant’s Current Account, relating to unauthorised overdraft charges and fees, or charges and fees for unpaid items. The sums removed from the Claimant’s account totaled £330.50.

 

17. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to levy these charges.

 

18. If the Defendant is able to establish that the contract did contain such terms, the Claimant will contend that these charges are unenforceable at law, being, either, unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999, because they are a disproportionately high sum in compensation compared to the cost of the purported breach, or, under the law of penalties, the charges are an unlawful, extravagant penalty

 

19. The level of default which the Defendant claimed existed in their alleged Final Demand was £1,569.41 – some £1,238.91 more than the amount of charges which the Defendant had applied to the Claimants account. The Claimant asserts that had the Defendant been acting lawfully in their application of charges, there would have been no default.

 

20. The Default and Termination of the overdraft agreement has, therefore, been completed unlawfully and not within the prescribed form required by the Consumer Credit Act 1974.

 

21. In addition to this, as there is no credit agreement provided that complies with the Act, the Defendant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 have not been met. The Default of this account is therefore unlawful and inaccurate.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE THE AGREEMENT CORRECTLY;

 

22. In relation to paragraphs 16 to 19 of these particulars of claim, failure of a Default Notice or a Termination Notice to be accurate not only invalidates the notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

DATA PROTECTION ACT 1998:

 

23. The Claimant contests that the Defendant’s continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998.

 

24. The Claimant’s written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendant’s “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to this alleged agreement to be wholly unwarranted and unlawful.

 

25. The Claimant is afforded principled rights under the Data Protection Act 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

 

26. The claimant asserts, therefore, that the alleged Final Demand letter amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

 

27. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

28. The recording of “Default” information by the Defendant, without consent, against a credit file without having an agreement regulated under the CCA 1974, or a legal contract, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate in any way, would breach The Data Protection Act 1998.

 

29. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of the Default record.

 

30. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

31. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

32. Additionally, the claimant requests an order from the Court under section 14 (1) of The Data Protection Act 1998 for the removal of the Default records and any other prejudicial information from all credit reference agencies.

 

33. The Claimant further claims the Court fee of £60.

 

34. The Claimant therefore claims against the Defendant in the terms outlined in these Particulars of Claim and seeks;

34.1. 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;

34.2. An order from the Court under s.14 (1) of the Data Protection Act 1998 for the removal of the Default Notice and any other prejudicial information from all credit reference agencies;

34.3. Costs, at the discretion of the Court

[Castlebest]

Hiya Chris

 

THE DETERMINATION

 

12. In one of its replies to the Claimants request at paragraph 4, above, dated 19 February 2008, the Defendant enclosed an alleged Final Demand letter said to be issued on 28 June 2007. The enclosed Final Demand letter, which does not conform to the prescribed form and content of a Default Notice under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, was personally signed and dated 19 February 2008, some 6 months after the alleged Default. Said letter was addressed to the Claimant’s current address and not the address which was recorded by the bank as the Claimant’s address at the time said letter was allegedly presented. The Claimant therefore contends that the Final Demand letter provided on 19 February 2008 by the Defendant was not a true copy of the original default letter, as previously requested by the Claimant.

 

Apart from that I cant see anything else that needs attention... nice POC by the way .

 

pete

[chris1977]

8-)

.....The Claimant therefore contends that the Final Demand letter provided on 19 February 2008 by the Defendant was not a true copy of the original default letter, as previously requested by the Claimant.

 

Apart from that I cant see anything else that needs attention... nice POC by the way .

 

pete

 

Well spotted Pete, thanks!

 

... nice POC by the way .

 

Credit should go to Car2403 actually, this was "liberated" from his Barclays thread ;-). But thanks all the same

[chris1977]

Is this OK for the brief details of claim on the front of the N1?:

 

The Claimant avers that the Defendant has unlawfully recorded default information on the Claimant's credit record held with Credit Reference Agencies, contrary to the Data Protection Act 1998 and the Consumer Credit Act 1974, and seeks an order from the court for the removal of said information, as well as damages to the value of £1000.

[Castlebest]

yes thats fine as long as you add something like

 

Full particulars of claim are attached to this form, pages numbered xxx to xxx.

 

In the particulars of claim box.

 

pete

[chris1977]

Will do, thanks Pete.

 

No going back now

[Castlebest]

Good luck Chris and keep us informed of how your doing

 

pete

[shieldblaster]

Good luck Chris and keep us informed of how your doing

 

pete

 

Ditto what Pete said Don't know much about POC's cos I haven't got that far yet but it cerainly looks impressive

[chris1977]

Cheers Gents, I'll definitely keep you all posted!

[chris1977]

Hello folks. Well it's now about 50 days since I sent my SAR and to date I have only received bank statements. I sent off an LBA on the 12th giving them 7 more days to comply, so if nothing appears today or tomorrow I'll start court proceedings.

 

This is presumably a relatively straight-forward claim so the POC should fit on an MCOL. Now this may be a silly question, but what exactly am I claiming, apart from court costs obviously.....??

[freakyleaky]

Hi Chris, have a look at this thread Data Protection Act Non-Compliance - Particulars of claim

It should answer most of your questions. Just shout if you get stuck.

[chris1977]

Thanks Freakyleaky! I'm not really sure how I can quantify damage or distress though. Is it relevant that provision of the information requested in my SAR may have some bearing on my ongoing claim for default removal(which, incidentally, I have yet to submit to the court due to lack of fundage!)

[freakyleaky]

Damages must be quantifiable and proof must be available for all costs claimed. You can work out how much time you have taken to sort this out and multiply it by a reasonable hourly rate. I have read somewhere that £9.25 per hour is acceptable.

As for distress I am not sure how this is quantifiable or how it could be proved. I will ask for advise on this and get back to you.

[chris1977]

Thanks Freakyleaky, much appreciated