SAR and RECONSTITUTED AGREEMENTS

[Linian]

Can a creditor supply a "reconstituted agreement" in response to a SAR?

 

I thought recons were only permitted for requests under S77/78 CCA1974?

 

Thanks anyone

[nicklea]

No, the Data Protection Act is NOT there for the disclosure of documents, but for the access of data about yourself. These are two very different things.

 

You are entitled to know what data is held on you, you are not entitled to go on a fishing expedition for disclosure of documents under a section 7 request. This was dealt with extensively in Ezsias v The Welsh Ministers [2007] EWHC B15 (QB) from para 50 onwards:-

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2007/B15.html

 

One alternative way of getting it would be under section 10. You would need to send them a notice similar to the one below. However, if they do not respond to this then you will need to take them to court.

 

The Data Controller

Name of company

 

Notice Pursuant to Section 10, Data Protection Act 1998

Account No: xxxxxxxx

 

Dear Sir,

 

Take notice that I require you to cease entirely from processing, or else that you do not begin to process, any personal data of which I am the subject within 7 days of the receipt by you of this notice.

 

This includes particularly, but is not limited to, any processing involving the communication or passing of personal data of which I am the subject to any third party insofar as the said data relates wholly or in part to any alleged agreement between us.

This Notice is given on the ground that there is no signed agreement in existence that entitles you to process my personal data.

 

Further, the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or distress to me in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the first, fourth and sixth principles of the Data Protection Act 1998 to do so would be unwarranted.

 

If you fail to respond to this notice within the prescribed timescale I will make an application to the court under Section 10(4) Data Protection Act that you be ordered to comply with this notice.

[Gunther]

Thanks Nicklea

 

I think what I was really trying to ask is, if you send a SAR to a lender and they reckon you have a credit agreement with them, then what are they permitted to send you?

 

MUST they send you a copy of the executed agreement?

MUST they state if they do not have a copy of the alleged agreement? or

are they able to "reconstitute" the alleged agreement as they now do for s77 CCA requests?

 

In other words, are they "allowed" to send a recon or MUST they send a copy of the actual agreement or state that they do not possess the agreement?

 

Does this make sense?

[postggj]

Confused

 

a setion 10 dpa notice is to stop processing data

 

a sar is a copy of all documents they hold on you

 

a reconstructed agreement is a no, no in a sar application

 

you can request a copy of the agreement if they dig their heals in by a cpr 31.16 request

 

if they had the original agreement

 

why send a reconstructed one

[postggj]

If they dont have the original then they must state so or any other document

[Gunther]

Thanks again for the prompt reply

 

So what do I say to a lender who has sent a "reconstituted" agreement in response to my SAR and also submitted it into court as evidence of their claim against me (after previously admitting that they could not produce the original agreement) stating that the Carey v HSBC ruling gives them the authority to do so??

[nicklea]

a sar is a copy of all documents they hold on you

 

a reconstructed agreement is a no, no in a sar application

 

I'm afraid that you're wrong on this point. A request under section 7 is a request for a description of the data that is held on an individual.

 

This was confirmed in the case that I referred to above. I will quote a small part from the case:-

 

 

1. There is a fundamental distinction between the right of access to data in the hands of another person for the purposes of protecting privacy, and the right to disclosure of documents. Mr Ezsias actually wishes to have disclosure of documents to assist his employment claim: and he labours under the misunderstanding that the right to access to data is necessarily coterminous with a right to disclosure of documents. It is not. Under the 1998 Act there is no right to have access to or copies of documents at all. Section 7 gives a data subject a right to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller: and if that be the case to be given a description of those data, the purposes of the processing and the recipients of any disclosure, and (Section 7(1)©):
   "… to have communicated to him in an intelligible form
   (i) the information constituting any personal data of which that individual is the data subject, and
   (ii) any information available to the data controller as to the source of those data…".

   
   

 

Confused

 

a setion 10 dpa notice is to stop processing data

 

The ground given for objecting to the processing of the data is that there is no signed agreement in existence. They can only overcome this ground by actually producing the signed agreement.

 

 

if they had the original agreement

 

why send a reconstructed one

 

Because it's a lot cheaper, quicker and easier to do this than have to search their archives to make a copy of the original.

[nicklea]

So what do I say to a lender who has sent a "reconstituted" agreement in response to my SAR and also submitted it into court as evidence of their claim against me (after previously admitting that they could not produce the original agreement) stating that the Carey v HSBC ruling gives them the authority to do so??

 

 

OK, things are different if there is a court case. They have still complied with your SAR as they have given you the personal data that they hold on you.

 

 

They cannot use this in court. Carey v HSBC is not applicable as it deals solely with what is required from a creditor to satisfy it's duty under section 77/78 of the CCA. It says nothing about anything else and so there is no change to any previous requirements.

 

 

I would suggest that you read a number of threads to find out suggested defences, there are lots on this website. If they have admitted that they cannot find the original agreement and you signed the agreement before the 6th April 2007 then your defence will be something along the lines of:-

 

 

It is conceded that the Defendant applied for and was given insert whatever the type of credit was and so an agreement existed between the Defendant and name of OC. It is not admitted that such agreement was reduced to writing and it is not admitted that the Defendant signed an agreement with XXXX .

 

 

In such eventuality the absence of a written agreement is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

[postggj]

the case you have quoted is from an E.A.T

 

EMPLOYMENT APPEALS TRIBUNAL

 

that has no relevance in cca matters

 

 

Just because theire is no signed agreement does not mean an agreement does not exsist

 

 

HSBC V CAREY

 

 

 

IN AN SAR REQUEST ,COPIES OF ALL ORIGINAL DOCUMENTS MUST BE MADE AVALIABLE OR IF THEY HAVE TO GO OFF SITE FOR A COPY OF THE DOCUMENT, THEY MUST STATE SO IN THEIR REPLY

 

A RECONSTRUCTED AGREEMENT CANNOT BE USED IN COURT

 

TO SATISFY A S.77 TO S.79 CCA REQUEST, THE CREDITOR CAN SEND AN EXACT COPY RECONSTRUCTED AGREEMENT IN EVERY WAY

 

BUT TO ENFORCE IN COURT, MUST PRODUCE THE ORIGINAL

Edited November 19, 2010 by postggj

[nicklea]

the case you have quoted is from an E.A.T

 

EMPLOYMENT APPEALS TRIBUNAL

 

that has no relevance in cca matters

 

You appear not to have understood the link that I gave. This case is NOT an employment tribunal case it is a case heard in the Queens Bench division of the High Court. This case involved a claim made under the Data Protection Act and, with regards to the claimant's other employment court case, as the judge said at [3] :-

 

Nothing I say in this judgment bears upon the merits of that claim.

Secondly, you say that this has no relevance to CCA matters. Well of course it doesn't, this is nothing to do with the CCA it concerns the Data Protection Act. An SAR is a request made under the DPA it is not made under the CCA. The case I mentioned is about the DPA

 

 

Just because theire is no signed agreement does not mean an agreement does not exsist

 

 

HSBC V CAREY

If the alleged agreement was signed prior to 2007 then yes it does mean that there is no enforceable agreement in existence. Carey has no bearing on this as it only deals with the duties of a creditor following a section 77/78 request from a debtor - were you not aware of this.

 

 

 

IN AN SAR REQUEST ,COPIES OF ALL ORIGINAL DOCUMENTS MUST BE MADE AVALIABLE OR IF THEY HAVE TO GO OFF SITE FOR A COPY OF THE DOCUMENT, THEY MUST STATE SO IN THEIR REPLY

You may think so, but the High Court and the Court of Appeal think differently. The court held that although copies of original documents may well be sent that it is not a necessity. This is from another case, Durant v Financial Services Authority [2003] EWCA Civ 1746:-

 

The intention of the Directive, faithfully reproduced in the Act, is to enable an individual to obtain from a data controller's filing system, whether computerised or manual, his personal data, that is, information about himself. It is not an entitlement to be provided with original or copy documents as such, but, as section 7(1)©(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form. This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals under section 7(4) and (5) of the Act).

[nicklea]

 

A RECONSTRUCTED AGREEMENT CANNOT BE USED IN COURT

 

TO SATISFY A S.77 TO S.79 CCA REQUEST, THE CREDITOR CAN SEND AN EXACT COPY RECONSTRUCTED AGREEMENT IN EVERY WAY

 

BUT TO ENFORCE IN COURT, MUST PRODUCE THE ORIGINAL

 

You appear to be using bigger and bigger fonts - not too sure why.

 

To reply to your points:-

 

I have already stated that a reconstituted agreement cannot be used in court in my previous post above, perhaps you didn't read that.

 

Yes, a reconstituted agreement can be used in response to a s77/78 request but how is that relevant to the question from the OP who asked about the response to a SAR.

 

With regard to your third point, has anyone here said anything else

[Gunther]

Ok, thanks for the responses and I'm pleased that my questions have generated a little debate.

 

I must accept resposibilty for any confusion as I did infact mention both DPA and CCA. However, this is precisely what the lender has done in an effort to confuse the issue and seek summary judgement based on a reconstituted agreement

 

The responses have highlighted a couple of seperate issues so;

 

1. Nicklea, you suggest I read a few threads on here. Please believe me, I have read several thousand posts and am quite a way through the "dissecting the Manchester test case" thread. I know what has gone on. The lender openly admitted that it could not supply a copy of the original agreement but now, suddenly (after Carey) they are able to produce a "true copy". I KNOW that a recon agreement does not provide evidence of a signed enforceable contract. YOU know the same, but how do I word it in a way that THE JUDGE will understand and agree with me? Your suggested reply above is very helpful but is there a case and/or judge comment that I can refer to which will make the judge sit up and listen as opposed to me spouting off about it all being wrong!?

 

2. The other replies have raised another issue though.The lender has admitted that it does not have a copy of the original agreement. I want to counterclaim that the lender had no right to default this credit card account without the signed agreement and I hope everyone agrees that this should stand up? However, I think we can all agree that the lender is OBLIGED to send me details of all my data being processed (whether in original form or not) but HAVE THEY COMMITED ANY OFFENCE by suggesting (in a recon agreement) that I have agreed to terms and conditions that they cannot prove? In other words, how accurate does a SAR reply need to be? In MUST include ALL data but can it include data they have now "made up" and have no proof of me ever agreeing to? Have they overstepped the mark with their SAR reply by supplying terms and conditions in an alleged contract when no evidence exists that such a contract was properly executed?

 

Am I making sense?

[postggj]

You appear not to have understood the link that I gave. This case is NOT an employment tribunal case it is a case heard in the Queens Bench division of the High Court. This case involved a claim made under the Data Protection Act and, with regards to the claimant's other employment court case, as the judge said at [3] :-

 

 

would you be so kind as to supply a link to case law

 

thanks

[nicklea]

You are entitled to know what data is held on you, you are not entitled to go on a fishing expedition for disclosure of documents under a section 7 request. This was dealt with extensively in Ezsias v The Welsh Ministers [2007] EWHC B15 (QB) from para 50 onwards:-

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2007/B15.html

 

 

The link to the Ezsias case is in the quote above and the relevant part is from [50] onwards.

 

The Durant case is here and the relevant part is from [26]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1746.html

[nicklea]

Ok, thanks for the responses and I'm pleased that my questions have generated a little debate.

 

I must accept resposibilty for any confusion as I did infact mention both DPA and CCA. However, this is precisely what the lender has done in an effort to confuse the issue and seek summary judgement based on a reconstituted agreement

 

The responses have highlighted a couple of seperate issues so;

 

1. Nicklea, you suggest I read a few threads on here. Please believe me, I have read several thousand posts and am quite a way through the "dissecting the Manchester test case" thread. I know what has gone on. The lender openly admitted that it could not supply a copy of the original agreement but now, suddenly (after Carey) they are able to produce a "true copy". I KNOW that a recon agreement does not provide evidence of a signed enforceable contract. YOU know the same, but how do I word it in a way that THE JUDGE will understand and agree with me? Your suggested reply above is very helpful but is there a case and/or judge comment that I can refer to which will make the judge sit up and listen as opposed to me spouting off about it all being wrong!?

 

2. The other replies have raised another issue though.The lender has admitted that it does not have a copy of the original agreement. I want to counterclaim that the lender had no right to default this credit card account without the signed agreement and I hope everyone agrees that this should stand up? However, I think we can all agree that the lender is OBLIGED to send me details of all my data being processed (whether in original form or not) but HAVE THEY COMMITED ANY OFFENCE by suggesting (in a recon agreement) that I have agreed to terms and conditions that they cannot prove? In other words, how accurate does a SAR reply need to be? In MUST include ALL data but can it include data they have now "made up" and have no proof of me ever agreeing to? Have they overstepped the mark with their SAR reply by supplying terms and conditions in an alleged contract when no evidence exists that such a contract was properly executed?

 

Am I making sense?

 

It would really help if you could post the POC from the claimant and any witness statement that you have received, leaving out any personal details of course. That way we can understand exactly what it is that the claimant is saying

[paulwlton]

You appear to be using bigger and bigger fonts - not too sure why.

 

To reply to your points:-

 

I have already stated that a reconstituted agreement cannot be used in court in my previous post above, perhaps you didn't read that.

 

Yes, a reconstituted agreement can be used in response to a s77/78 request but how is that relevant to the question from the OP who asked about the response to a SAR.

 

With regard to your third point, has anyone here said anything else

 

With respect, where does it state in CPR, that the original MUST be produced at an hearing to enforce?

[AndyOrch]

With respect, where does it state in CPR, that the original MUST be produced at an hearing to enforce?

 

Its not in the CPR Paul, its set out in the OFT guidlines on Sec 77/78 giving and responding.However with regards to enforcing, the original must be presented in claims( if available and if not they must state that its not or destroyed or was never executed) so I understand.

 

Regards

 

Andy

[paulwlton]

Its not in the CPR Paul, its set out in the OFT guidlines on Sec 77/78 giving and responding.However with regards to enforcing, the original must be presented in claims( if available and if not they must state that its not or destroyed or was never executed) so I understand.

 

Regards

 

Andy

 

Andy.

 

My post was concerning lost agreements.

[AndyOrch]

Not on my normal pc at the moment but i will post the document over the weekend.

[Docman]

Actually guys, if the claimant has stated in the POC that the claim is in respect of a consumer credit agreement numbered xxxx and dated xx MONTH yyyy, then the document has been 'disclosed' under the CPR and the defendant can ask to inspect the original document (CPR 31.15).

What is happening more frequently is that creditors are admitting they do not have the agreement (and therefore a defendant cannot check whether it is compliant by including the Prescribed Terms) and therefore do not have to disclose a copy of the agreement. To get around the restriction that was in the old S127 (3), the creditor uses the words emphasised by Judge Waksman in the Carey case. The judge pointed out that the section had said "unless a document was signed...” Creditors claim the document was signed and 'reconstruct' the agreement, sometimes with recent terms that could not have been in the terms & conditions when the agreement was originally prepared. Some District Judges swallow the argument, particularly if they are not knowledgeable about CCA law and don't want to be embarrassed by the claimant's solicitor.

IMO, the only way to deal with this type of claim is to totally deny signing an agreement, put the claimant to strict proof, and then bang on about the words of Lord Nichols of Birkenhead that a signed agreement is a prerequisite if the court is to enforce an agreement.

[B3rty]

Just going back to the SAR question if they are not able to provide a copy of the original doc or its too much " disproportionate" effort ( aren't they all!) they can provide the raw data

 

This is what they use to get out of providing it.

 

This is DPA 1998 s 8(2)

(2) The obligation imposed by section 7(1)©(i) must be complied with by supplying the data subject

with a copy of the information in permanent form unless—

(a) the supply of such a copy is not possible or would involve disproportionate effort, or

(b) the data subject agrees otherwise;

and where any of the information referred to in section 7(1)©(i) is expressed in terms which are

not intelligible without explanation the copy must be accompanied by an explanation of those

terms.

[nicklea]

Actually guys, if the claimant has stated in the POC that the claim is in respect of a consumer credit agreement numbered xxxx and dated xx MONTH yyyy, then the document has been 'disclosed' under the CPR and the defendant can ask to inspect the original document (CPR 31.15).

 

...

 

IMO, the only way to deal with this type of claim is to totally deny signing an agreement, put the claimant to strict proof, and then bang on about the words of Lord Nichols of Birkenhead that a signed agreement is a prerequisite if the court is to enforce an agreement.

 

This is actually what I would suggest as well. See here as an example:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283833-help-please-capquest-!&p=3215183&viewfull=1#post3215183

 

This is based on the work originally done by a very knowledgeable member called I've Got No Money

 

http://www.consumeractiongroup.co.uk/forum/member.php?204240-I-ve-got-no-money

[Gunther]

Great posts Docman and nicklea and a big help but if I can be a bit more specific;

 

In my case, in the very early days when I asked for a copy of the agreement, the lender sent me a signed and dated copy of the original application form (no prescribed terms and defo not compliant) It is signed by them and has the Credit Card number in place at the bottom. However, after after starting proceedings, they did not disclose this or the obviously faulty DN - even after a CPR 31.14 request - and instead asked for a stay

 

After Carey, they have now served the "recon" agreement and a "new" compliant DN, amended the POCs and have reinstated the claim and are progressing promptly!

 

What is particularly annoying is that they are now saying that the signed application was simply "page 1" of the entire (compliant) agreement (fraud and perjury) but is unfortunately the only part of the original agreement they could find!!?

 

Can we shape anything you've already said to address this situation please?

 

Thanks again for all your help - it's appreciated

Edited December 4, 2010 by Gunther