EXPERIAN... The final battle commences

[seftonview]

Of course they can try to hide behind the Data Protection Act ....but they cannot hide behind the Libel Act and now what they have to defeat is the New UCPR's

 

Quote from part of the UCPR’s.

The Regulations state that a misleading action or misleading omission on the part of a ‘trader’ in relation to ‘products’ will amount to an “unfair commercial practice”.

A “trader” is a natural or legal person acting in the course of his trade, business, craft or profession.

A “consumer” is not a natural or legal person acting in the course of his trade, business, craft or profession.

“Products” includes goods and services, rights and obligations and range from simple products such as an item of food to the complex services involved in selling property.

 

 

 

A commercial practice (includes acts, omissions, a course of conduct, representations or commercial communications by a trader promoting, selling or supplying a product to a consumer) becomes a misleading action, and therefore a criminal offence, if it:

• "contains false information and is therefore untruthful […] or if it or its overall presentation in any way deceives or is likely to deceive the typical consumer […], even if the information is factually correct […] or even if it is corrected after the event.
  

This includes CRA's they have not been challenged with these yet.They sell you your credit file and if itcontains false incorrect or wrong data and info, then they will fall foulf of the regs

 

sparkie

 

A good argument in theory, but im not sure if it could be applied to this type of case.

 

The information is false therefore untruthful, however it is arguable that the average consumer in these circumstances (ie with knowledge of the DPA, Defamation Act and the tort of defamation) would be caused to take a different course of action because of the false information.

 

Just a thought.

 

SV

[Sparkie1723]

The UCPR's apply to ALL who trade and sell and promote....... their web site includes the type of flaws in their promotions these new regs cover .....bearing in mind they only came into force at the end of May this year, if someone sells you something and it contains falsehoods its covered by the UCPR's and CRA's trade and sell information to the consumer .....YOU!!!!

 

sparkie

[UK26]

I was interesting talking to the solicitor about this, as you said above, there are so many ways of looking at it, and you need to look at the bigger picture, and really know your stuff, no point going after them under 1 legislation if another more serious one could stand better chance of winning.

Really, need to look at all avenues before issuing a N1

[UK26]

What the betting a court would rule this does not apply to CRAs

 

The UCPR's apply to ALL who trade and sell and promote....... their web site includes the type of flaws in their promotions these new regs cover .....bearing in mind they only came into force at the end of May this year, if someone sells you something and it contains falsehoods its covered by the UCPR's and CRA's trade and sell information to the consumer .....YOU!!!!

 

sparkie

 

if it does apply, just to make sure, you are covered, maybe, apply for a credit card somewhere, that use experian, once experian release the info, you have them in the net

[Sparkie1723]

Hi UK26....your quote .......What the betting a court would rule this does not apply to CRAs.

My latest experience with the Courst as litigant in person is .....I wouldnt bet against what you said.......imagine the chaos if a case was successfull under these New Regs..................the system will be careful in what they allow and what not, but we can only try and beat them using all we can against them..... one day someone will succeed ....then the fireworks will really start.

sparkie

[UK26]

Ok, anyone care to help draft up a nice N1 for experian ?

 

then once its been tested, and confirm a win case, use it as a template on here??

[lickthewallfatboy]

this is just my opinion,but as this is getting so big,and has serious implications for the whole financial services industry,that a "proper" court case,brought by a barrister who knows the area we're dealing in might be a way forward.....

 

this would cost money-but a fund might be able to be set up,or could it be fought on a no win no fee basis?

 

just a thought,so don't go down my throat!! LOL

[Sparkie1723]

Ok, anyone care to help draft up a nice N1 for experian ?

 

then once its been tested, and confirm a win case, use it as a template on here??

 

 

In my personal opinion ..if the claim is drafted carefully and is a good one...Experian will settle just before it goes to court ...if they have even an inkling that you would/could win, I say this because the doors would then be open.

Post your first draft claim so we can all input and try to get it right.

sparkie

[Hullabaloo27]

this is just my opinion,but as this is getting so big,and has serious implications for the whole financial services industry,that a "proper" court case,brought by a barrister who knows the area we're dealing in might be a way forward.....

 

this would cost money-but a fund might be able to be set up,or could it be fought on a no win no fee basis?

 

just a thought,so don't go down my throat!! LOL

 

Agreed with this, I'd be willing to donate as it is so important to get it right. To offer some context, a favourable result could save thousands of people thousands of pounds.

[Sparkie1723]

Agreed with this, I'd be willing to donate as it is so important to get it right. To offer some context, a favourable result could save thousands of people thousands of pounds.

 

 

Right on .....I'm in for twenty quid if someone will hold the purse strings........Bankfodder maybe???

 

sparkie

[UK26]

right, ive never done a claim other then money issues before, so would need someone to look at my capquest case as this is related and base the N1 around this, the fact ive given experian proof that the default is incorrect etc

[finlander]

uk26,

 

what is a brief summary of your case? is it one involving penalty charges, identity theft CCA agreements etc?

[finlander]

Hi UK26....your quote .......What the betting a court would rule this does not apply to CRAs.

 

My latest experience with the Courst as litigant in person is .....I wouldnt bet against what you said.......imagine the chaos if a case was successfull under these New Regs..................the system will be careful in what they allow and what not, but we can only try and beat them using all we can against them..... one day someone will succeed ....then the fireworks will really start.

 

sparkie

 

sparkie I disagree,

 

I don't think we need to get paranoid when it comes to the courts. So far they have helped us greatly in defeating banks and as the recent test case shows they are not afriad to do so even when it's going to cost the banks billions in the middle of a credit crunch.

 

However what the courts won't stand , and they have shown this in the past , is a sloppy case. It is not the judges job to argue our case's for us but to decide on the arguements in front of him. I.E. if you dont make the right arguement, or fumble the one you do make, then he will rule against you.

 

thats why we have to stick to basic, simple facts and argue them well.

 

The facts of this thread are just that...

 

1.CRA's regulated and controled by CCA

2.No enforcable CCA agreement then No default as CCA no longer applicable

3.default does not say 'bad debtor' it says, in their own definition, 'you have failed to keep to the terms of your agreement'

4. definition of agreement in the CCA? 'A properly regulated agreement containing all the prescribed terms signed by both parties'

5. Is a default notice a true statement then? no.

[foolishgirl]

thats why we have to stick to basic, simple facts and argue them well.

 

The facts of this thread are just that...

 

1.CRA's regulated and controled by CCA

2.No enforcable CCA agreement then No default as CCA no longer applicable

3.default does not say 'bad debtor' it says, in their own definition, 'you have failed to keep to the terms of your agreement'

4. definition of agreement in the CCA? 'A properly regulated agreement containing all the prescribed terms signed by both parties'

5. Is a default notice a true statement then? no.

 

 

I agree Finlander & could you not also add:

 

6. If not a true statement, then it is defamatory

7. If not true and/or defamatory it contravenes both DPA & Libel legislation

[UK26]

my case is over at

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/157647-capquest-statutory-demand.html

 

ive sent about 8 emails to Paul at Experian and have posted his replys on this thread "EXPERIAN... The final battle commences"

 

the case is

 

Penalty charges

un-enfoceable cca

Payment Protection Insurence added but not indicated on the CCA

 

all of which means the default is incorrect

 

uk26,

 

what is a brief summary of your case? is it one involving penalty charges, identity theft CCA agreements etc?

Edited September 6, 2008 by UK26

[UK26]

come on guys, give me a nice N1, that i can send off to the court on Monday!!!

[pt2537]

come on guys, give me a nice N1, that i can send off to the court on Monday!!!

 

id wait til youve issued a Letter of Claim first before starting legal action ( see preaction protocols) and given them time to reply

 

once youve done this you will have the basics of your claim set out in the letter of claim;)

[UK26]

got my book out on Civil Procedures - Pre-Action Protocols

 

so i need to give them 21 days from the date of my email, saying unless the info is corrected, i would start legal action.

 

Ok, just to play extra safe, i will now send out a LBA as follow up to my email

dont want the judge giving me an order for indemnity basis costs

 

 

 

here is my draft N1 Claim

 

Brief details of claim

 

The claimant seeks an Enforcement Order under section S14.1 and S14.3 of the Data Protection Act 1998 against the defendant for removal of all incorrect data, which the defendant processes and continues to publish to any party upon request or order.

 

Value

 

Substantial damages from the Defendant to the value of £1,000

Costs £100

 

Amount Claimed £1100

Court Fee – Fee Remissions

Total £1100

Costs £100

 

Amount Claimed £1100

Court Fee – Fee Remissions

Total £1100

 

Particulars of Claim

 

The Claimant is at all material times an individual (Subject) under The Data Protection Act 1998.

 

The Defendant is at all material times a Data Controller in the meaning of the Data Protection Act 1998, and is responsible for the processing of data of which the Claimant is a Subject.

 

The claimant on nemours occasions has written to the defendant to request the inaccurate information within the claimant’s credit report be removed. Despite this request, the defendant refused to remove the data and continues to publish.

 

The Claimant claims that such processing is unlawful in that it breaches Principles 1, 4 and 5 of the Act.

 

 

Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendants meets none of the conditions in Schedule 2.

 

 

Principle 4 states that ‘Personal data shall be accurate and, where necessary, kept up to date’. The entries in the Claimants credit reference file are neither accurate nor up to date, which the Defendant knew by way of proof provided by the claimant in form of documents.

 

Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the 6-year period at the latest

 

The Claimant respectfully seeks;

 

 

a) An order under s.14 of the Act, subsections 1 and 4, that the inaccurate data be rectified, blocked, erased or destroyed.

 

b)An order under s.14 of the Act, subsections 3 and 5, that the Defendant notify third parties to whom the data have been disclosed of the rectification, blockage, erasure or destruction of the data.

 

c)Under s. 13 of the Act, subsection 1 the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as:-

 

d)Under s.13 of the Act, subsection 2 the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court.

 

 

e) Additionally, or in the alternative, the Claimant claims damages for negligence causing general loss to credit, at the discretion of the Court.

 

 

still in progress -- i've had a go at doing this guys, any suggestions??

Edited September 7, 2008 by UK26

[UK26]

N1 Draft sorted now, just need you guys to check to make sure, it wont be rejected and has a chance of winning.

[reallymadwoman]

I would quote the relevant sections of the data protection act where it states that data has to be accurate etc, and also use the actual wording from the act relating to removal of data.

[UK26]

what section of the act is this?

 

I would quote the relevant sections of the data protection act where it states that data has to be accurate etc, and also use the actual wording from the act relating to removal of data.

[reallymadwoman]

This is a bit of the particulars of claim I'm using, which should point you in the right direction.

 

 

• The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998 (the Act) in that
  

a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’ and the data ‘personal data’ as defined in s.1 of the Act

f) The Claimant claims that such processing is unlawful in that it breaches Principles 1, 4 and 5 of the Act.

g) Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendants meets none of the conditions in Schedule 2, which the Defendant knew or should have known by XXXX at the latest.

h) Principle 4 states that ‘Personal data shall be accurate and, where necessary, kept up to date’. The entries in the Claimants credit reference file are neither accurate nor up to date, which the Defendant knew or ought to have known by XXXX at the latest.

 

i) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the XXXX at the latest.

• The Claimant respectfully seeks;
  

a) An order under s. 14 of the Act, subsections 1 and 4, that the inaccurrate data be rectified, blocked, erased or destroyed.

b) An order under s. 14 of the Act, subsections 3 and 5, that the Defendant notify third parties to whom the data have been disclosed of the rectification, blockage, erasure or destruction of the data.

c) Under s. 13 of the Act, subsection 1 the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as:-

d) Under s.13 of the Act, subsection 2 the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court.

e) Additionally, or in the alternative, the Claimant claims damages for negligence causing general loss to credit, at the discretion of the Court.

 

 

You will find the full text of the Act here :- Data Protection Act 1998 (c. 29) and I recommend that you read it very thoroughly.

[UK26]

thanks for this

[UK26]

Right guys, i took the above down to the local court to be issued. not with Experian but with someone else,

 

They sent it to the judge for Review saying it may need to go to the high court

[master woody]

subbing