Dayglo's mission to get his life back!

[doo]

subscribing and good luck

[Smoothy]

If youd like the support Dayglow I can be there with a custard flan! Would be nice to see them get their just deserts!!

Just say the word and I'll be there.

[dayglo]

Ok, to cut a long story short (I'm sure I'll post a bit more detail at some point in the future) I lost.

 

I have no complaints about the court or judge. I was given ample opportunity to put forward my case as were Vodafone.

 

But it came down to, as expected, Schedule 2 Paragraph 6 and whose 'legitimate interests' were greater.

 

The judge agreed that I had shown that I had suffered substantial damages but I had not shown that it was unwarranted. The judge decided that the legitimate interests of the 'Credit Reference Agencies' (not just vodafone) outweighed my legitimate interests.

 

In respect of time, The judge agreed with the ICO in that six years (for many reasons) WAS a reasonable length of time for a default to remain on file.

 

The only upside was that Vodafone, when asked if they wished to apply for costs, declined - and the Judge suggested that was the right answer!

 

there were loads of nice words from the judge regarding my handling of the claim etc... but ultimately she dismissed my claim.

 

Hey ho.

 

p.s. thanks to Mr. Aardvark for coming along to provide support etc. Very much appreciated.

[aardvark the lecturer]

Hi all,

 

just to follow on from Dayglo's post,

 

I think you can take great comfort away with you in having put the case forward in such a way that there was no clear winners at any time until the judgement was given.

 

Bless, the poor lady from Vodaphone was terrified for much of the hearing and there were a number of moments that the lawyer for Vodaphone was struggling to make (or find) his point!

 

I'd have also taken great pleasure in being the one with the 'big files' that had all the relevant documentation. In fact the judge made a point of thanking Dayglo for the helpful way in which he had presented/provided this detail. - 3 big files of all the arguments and supporting evidence -

 

I think you've missid your vocation in life my friend!

 

Sorry the outcome wasn't the one you wanted but it certainly wasn't for lack of trying or preperation (or is that perspiration?).

 

Aardvark.

[Guest ian cognito]

Bummer, but when you sit back and think about the floodgates a win would have opened I suppose it's hardly surprising.

 

Interested to hear more detail, especially for those going down the same route, maybe time for a rethink.

 

Anything on the Default/default/CCA argument mentioned?

 

Sorry mate - gutted for you but you deserve a huge pat on the back for sticking it out xx

[dayglo]

I'm still a bit on '****ed off' page but here is some more detail, if it helps others.

 

1) The Judge made reference to the fact that, in her opinion, the S.10(1) notice that I sent (SB's template one) did not fully comply with requirements of the DPA in that it does not give 'specific reasons' why I considered there to be substantial damages or distress and that they are unwarranted. By this she says that she would expect detailed arguments listing exactly how much the damages were (I only presented this information with the AQ as I thought this would be acceptable)

 

2) She agreed that Vodafone may have also responded inadequatly to the various notices within 21 days, but she suggested that both parties waiver that element of the issue as 'technicalities' and that the hearing should be heard on the basis of the positions of both parties as they are today. This was on the understanding that she would dismiss my notice as inadequate, I would put in a new one, Vodafone would respond adequatly and we would be back where we are now just a few hundred pounds worse off all round.

 

3) She agreed that although the CCA did not apply in this case, that I was right to consider that the spirit of the protection clauses for consumers should be applied and that she gave vodafone a bit of ticking off for picking and choosing which bits apply and which bits don't.

 

4) She agreed that my definition of 'substantial damages' could be considered in light of proportionality of the original default and she agreed that the penalty i was paying for the default was dispropotionally higher than the value of the default

 

5) However, she agreed with Vodafone in that it was nothing to do with vodafone what another lender chooses to do with the information on my credit file - Vodafone must make sure the data is accurate. The fact that my mortgage is higher as a result is nothing to do with vodafone.

 

6) The bottom line - the burden of proof is on the claimant to show that the damage/distress is substantial and unwarranted. She agreed i showed it was substantial but not that it was unwarranted.

 

I'm going to go and have some beers later on.....

[zootscoot]

A disappointing result but well done to you for taking it as far as you did. Its a bit of cop out to say that the level of your mortgage payments is nothing to do with Vodafone. There is a clear link between a default and what lenders are willing to lend and at what rates.

 

Enjoy your beer in the knowledge that you stood up to them and took them to the wire. If you imagine how much they have paid out in defending your claim it might cheer you up a little.

 

Best wishes

 

Zoot

[Guest Niklowe]

Well done Dayglo

[Guest willowb]

Dayglo I'm soooo proud of you!!! you have always been very balanced in your arguments and have tackled everything from every angle possible. You were prepared, concise, calm, thorough and confident....the result may not have been what you wanted but the tenacious way in which you have handled this claim is inspirational and you have helped alot of people on the road to 'getting their lives back' including myself:) bless ya DG!

 

 

Wxxx

 

And hello Aardy:D what a good friend you are!

[dayglo]

thanks all,

the advice I'll give based on what i've learned today is this:-

 

1) vodafone are delighted that they can show that they can reject S10(1) notices by claiming the conditions described in Schedule 2 para 6 are met therefore they do not have to comply with any S.10(1) notice

 

2) the template notice appears to be in some ways inadequate in that it does not put forward specific reasons why the processing is unwarranted in any particular case.

 

3) I was lucky in that the judge appeared to 'relieve' me of the costs burden on the basis that my case appeared well prepared and my general behaviour in the court and that vodafone took the judges 'hint' that they should not pursue me for costs. This may not be the case for others, the judge said this was "one of the most complicated cases she'd heard"

 

be careful out there!

[MARTIN3030]

Its been dicsussed at length that any claims for compensation along these lines should be backed up with good solid evidence.

In the case of the small claims it had to be done as an undisclosed amount but obv up to 5k limit.

The level of compensation is discretionary so its down to the claimant to prove that the default has caused the damage financially to you that would reflect any compensation.

This is difficult but not impossible.

You deserve applaus for your efforts though and hopefully there are some pointers others can take from this.

I am doing the same with RBS.

They have failed to respond to anything the court have sent,and the Judge has now asked to see a copy of my s10 together with the banks response.

Insofar as default removals go......I do not anticipate the same sort of struggle as the bank cannot clearly defend their actions as correct after they have already refunded more than the amount of the default.

I suspect they understand this and now have to wait for directions hearing.

Part of my submissions will be that the banks and other financial institutions are extremely forthright in telling you that if you are defaulted it will seriously affect your future ability to apply for mortgages or credit....that in itself is their statement........the harder part comes (if you do want to claim compensation )offering REAL PROOF of...the levels on which it has actually affected YOU.

[dayglo]

Its been dicsussed at length that any claims for compensation along these lines should be backed up with good solid evidence.

In the case of the small claims it had to be done as an undisclosed amount but obv up to 5k limit.

The level of compensation is discretionary so its down to the claimant to prove that the default has caused the damage financially to you that would reflect any compensation.

This is difficult but not impossible.

You deserve applaus for your efforts though and hopefully there are some pointers others can take from this.

 

Cheers Martin, thanks for your comments.

 

but just to be clear my claim was for a zero value. The judge accepted my valuation of damages and was happy to accept that as a result of the data processing by vodafone I had suffered disproportianally. (please forgive spelling, its late, i'm drunk and angry!)

 

my failure was that i could not show that the damages were unwarranted. The judge also said, in her opinion, she could not see a way that anyone COULD show that the damages were unwarranted. she seemed genuinley sorry that she had to dismiss my claim. I took her at face value and she did with me.

[dayglo]

Dayglo I'm soooo proud of you!!! you have always been very balanced in your arguments and have tackled everything from every angle possible. You were prepared, concise, calm, thorough and confident....the result may not have been what you wanted but the tenacious way in which you have handled this claim is inspirational and you have helped alot of people on the road to 'getting their lives back' including myself:) bless ya DG!

 

 

Wxxx

 

And hello Aardy:D what a good friend you are!

 

thanks my lovely

[Armsoft]

Cheers Martin, thanks for your comments.

 

but just to be clear my claim was for a zero value. The judge accepted my valuation of damages and was happy to accept that as a result of the data processing by vodafone I had suffered disproportianally. (please forgive spelling, its late, i'm drunk and angry!)

 

my failure was that i could not show that the damages were unwarranted. The judge also said, in her opinion, she could not see a way that anyone COULD show that the damages were unwarranted. she seemed genuinley sorry that she had to dismiss my claim. I took her at face value and she did with me.

 

 

Just a thought -

Having checked my Credit File last night, I noticed that with my records for the mobile phone companies, the upkeep of records seems to stop at the point of them becoming satisfied,

ie; on my Orange PCS record I had defaulted (due to clerical error by them) and they put status markers on the account each month as follows -

6 5 4 3 2 1 0 0 0 0 0 0

and then in July last year they entered a Defaulted Value and Date, I settled the amount, and they recorded it as Satisfied in August. Since August they have not recorded or updated any status markers on the account.

Surely, if the argument is that they have to keep the record up to date for up to Six Years, they should be updating the status markers??, mine should currently show as -

0 0 0 0 0 0 0 6 5 4 3 2

and in a further 5 months time I should have all 12 status markers showing as 0

I appreciate that it is possibly the Default/Satisfied status that prospective lenders look at when making lending decisions? (or is it the status markers?), but surely companies like Orange/Vodaphone etc need to do some work to support their claim that they can keep records going for six years, and the least they should be expected to do is update the account records as they had previously done?? (ie; Monthly)

 

Just a thought, but I would be willing to test this in court if you thought there was any mileage in it?

[Guest ian cognito]

It's a very good point and by the same token, I don't think Vodafone processed my date to the CRA's until after the account was defaulted, when it was updated by 4 months or so at once.

 

If they are given the right to process it should be consistant at least, but having said that, don't all creditors only process until the account is satisfied/paid in full whether defaulted or not?

[Armsoft]

It's a very good point and by the same token, I don't think Vodafone processed my date to the CRA's until after the account was defaulted, when it was updated by 4 months or so at once.

 

If they are given the right to process it should be consistant at least, but having said that, don't all creditors only process until the account is satisfied/paid in full whether defaulted or not?

 

But surely the information if kept for six years needs to be Correct Information, which if not updated monthly (as previously kept) then it becomes Out Of Date data and therefore misleading??

With my data on Orange PCS it shows that I am 6 months in arrears, where as in fact I have had 7 months of no arrears (I no longer have an account with them).

Surely, on the principle of Fairness and Consistency, the file needs to be a fair and accurate reflection of the current state?

[Guest ian cognito]

Sorry, we appear to have hijacked Dayglo's thread! (again)

 

It may be worth asking the Information Commissioner the question, worded precisely as their quite good at squirming round the point.

 

ICO – Information Commissioner's Office

[Armsoft]

But surely the information if kept for six years needs to be Correct Information, which if not updated monthly (as previously kept) then it becomes Out Of Date data and therefore misleading??

With my data on Orange PCS it shows that I am 6 months in arrears, where as in fact I have had 7 months of no arrears (I no longer have an account with them).

Surely, on the principle of Fairness and Consistency, the file needs to be a fair and accurate reflection of the current state?

 

To further support my belief that it is in fact the Monthly Status Markers that are refered to by prospective lenders (working on the premise that in computing and spreadsheets it`s numbers that cause actions and not words) I note that in January T-Mobile updated my file, having last updated it January Last Year having been defaulted the previous year, but leading up to the default they were updating monthly.

 

If nothing else, this could be an inconvenience to the companies if they are Required to keep the records upto date?

[Armsoft]

Oooops, sorry Dayglo

I`ll refer this to the ICO, and stop hijacking:)

[dayglo]

forgiven. But if it helps - section 14 DPA is your best bet to have 'inaccurate' personal data corrected.

[Armsoft]

forgiven. But if it helps - section 14 DPA is your best bet to have 'inaccurate' personal data corrected.

 

Thanks for the forgivness dayglo:)

 

Has section 14 already been tried and tested? or do you think it`s worth a go?

[dayglo]

no idea. Please continue that particular discussion point elsewhere and leave this for wallowing self pity!

[Guest ian cognito]

Some things in life are bad

They can really make you mad

Other things just make you swear and curse.

When you're chewing on life's gristle

Don't grumble, give a whistle

And this'll help things turn out for the best...

And...always look on the bright side of life...

Always look on the light side of life...

If life seems jolly rotten

There's something you've forgotten

And that's to laugh and smile and dance and sing.

When you're feeling in the dumps

Don't be silly chumps

Just purse your lips and whistle - that's the thing.

And...always look on the bright side of life...

Always look on the light side of life...

For life is quite absurd

And death's the final word

You must always face the curtain with a bow.

Forget about your sin - give the audience a grin

Enjoy it - it's your last chance anyhow.

So always look on the bright side of death

Just before you draw your terminal breath

Life's a piece of s**t

When you look at it

Life's a laugh and death's a joke, it's true.

You'll see it's all a show

Keep 'em laughing as you go

Just remember that the last laugh is on you.

And always look on the bright side of life...

Always look on the right side of life...

(Come on guys, cheer up!)

Always look on the bright side of life...

Always look on the bright side of life...

(Worse things happen at sea, you know.)

Always look on the bright side of life...

(I mean - what have you got to lose?)

(You know, you come from nothing - you're going back to nothing.

What have you lost? Nothing!)

Always look on the right side of life...

[dayglo]

very good

[Guest willowb]

Monty Python...fantastic! always cheers me up anyway..... (1 glass of wine so bear with me!)...."sex sex sex!!!! that's all he ever thinks about...is it too big? is it too small?....will the girls like this, will the girls like that:mad: " lmao........."Section 10, Section 10, Section 10!!! that's all he ever thinks about....is it warranted? will it show substantial damages?.....will the Judge agree with this? will the Judge agree with that? "

 

 

Wxxxx

I'm having a glass of wine and toasting you DG! you can probably tell that hey?