Dayglo's mission to get his life back!

[dayglo]

nice angle, i promise this is true!

 

at one point during the exhausting 2 and bit hours of the hearing, mr vodafone man said sometihng, and the judge said "this is an argument" - I so desperately wanted to say "no it isn't its just contradication!"

[duncan_disorderly]

BRAVO!

 

I have just come across this thread. I feel Mr DG that I have been locked in a room with you personally for the past 3 days (and nights) as I have divulged the huge amount of information this thread contains!

 

All I can say is that you deserve one huge pat on the back for ALL your efforts. You have talked the talk and more importantly walked the walk on this one. You took them right to the wire and the whole decision came down to one word "unwarranted".

 

I know you must be personally gutted at the outcome after all your effort, but although not 'legally', you have set one hell of a precedent on this board for consumers standing up for their rights, and for that you should hold your head high.

 

In trying to summarise the outcome, it has created a high hurdle to try and jump in approaching from the angle of a S.10(1) notice. To me now it looks like an impossible argument to make that you suffered "substantial damages or distress and that they are unwarranted".

 

I would presume that the Judges thinking on this was that altough you had actually suffered substantial damages in having to pay higher interest rates on a mortgage, and that even though they may have been considered dispropotianate, the reason you had to pay more was because of the existence of the default in the first place, and therefore your losses were 'warranted'.

 

Unfortunately this gives any Data Controller the 'get out' clause they need in not having to comply with your S.10(1) notice, and carte blanche freedom to continue to process your data, unfortunately to your detriment.

 

It seems the only way you could win an 'unwarranted' argument was if the default had been entered in error or unlawfully to begin with...and perhaps if the defaulted amount was entirely made up of unlawful charges to begin with. The 'unwarranted' argument would certainly hold more water in these cases and may have a better chance of succeeding.

 

I am no legal expert by any means and I can only use the same thought processes that we all do here in trying to build a legal argument. My head is spinning with a solid 3 day head to head with you , but I have been trying to check other threads and take some notes as I went along and wondered if there was another angle that cases could start from.

 

There was a lot of early discussion about the contractual permissions angle that SB was involved in. I know that the argument used against this was the need for only one of the conditions of Schedule 2 to be necessary. Therefore permission was not deemed necessary. This was backed up by that stalwart of consumer protection the ICO saying that permission could not be 'freely obtained' to begin with, so therefore everyone was able to squirm out of the permissions issue by using :

 

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

However Shedule 1 states:

 

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-

 

(a) at least one of the conditions in Schedule 2 is met, and

 

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

So the argument arose 'was the data considered sensitive and personal'? In another thread I read a reply from one of the CRAs after a complaint to them directly (sorry, I didn't recored a link)

 

However, Parliament has for a long time recognised the sensitivity of the type of information which we hold and that is why the work that we do is governed by the strict rules contained in the Consumer Credit Act 1974 and the Data Protection Act 1998. This legislation ensures that the information we hold about you is dealt with carefully and fairly.

So if the CRA believes that the personal data is sensitive, and even more importantly, if Parliament believes it to be sensitive, then a court should also believe that it is sensitive. This would mean that the squirmy cop out Section 2 6.(1) clause would also need to be backed up with Schedule 1 - 1(b):

 

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

So we would then need to look to Schedule 3

 

SCHEDULE 3

 

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF SENSITIVE PERSONAL DATA

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

I have only included the the first section of Schedule 3 as it seems to be the oly one which would apply Full Schedule 3 available here

 

This would bring us back full circle to the contractual issue, and was that explixcit consent part of any original contract, and has that consent been rescinded by the ending or expiration of a contract. Which is straight back in SB's territory.

 

I think early discussions assumed all the time that looking at Schedule 2 conditions, Schedule 2.1 stated "1. The data subject has given his consent to the processing." and if contracts eneded then consent was no longer given.....but the ICO raised the 'f**k you pal under 6.(1) we don't even need your consent.

 

But if the data can be justly described as being "sensitive personal data" then it stands that the data subject can say "I don't care about your Schedule 2 6(1) squirm out clause, you are going to have to find a clause in Scehdule 3 to comply with these also, and since the contract has now ended you no longer have my 'explicit consent' from the Data Subject to process my data as that 'explicit intent' was a term of the contract which has ended.

 

Just a thought

[dayglo]

well, if you're gonna make this your first post in the thread, it appears to be a blinder.

 

welcome onboard sir, a fine post.

 

I may reply in more detail when i'm less... how shall we say, less "tired and emotional"

[SurlyBonds]

well, if you're gonna make this your first post in the thread, it appears to be a blinder.

 

welcome onboard sir, a fine post.

 

I may reply in more detail when i'm less... how shall we say, less "tired and emotional"

 

Hi Dayglo, it seems a real pity that different county court judges are interpreting it all so differently. We've had three cases go straight through on the basis that recording a default for six years is not proportionate to the same length of time for something far more serious such as a bankruptcy marker or CCJ. And also on the basis that it specifically wasn't included as a contractual term.

 

Unfortunately, the I.C.O.'s 'panic' statement last November (done purely as a stop-gap measure after too much heat from places like here) is now (sometimes) being interpreted as the law - which it is most defintely NOT. How on Earth they can quote an industry beano in the early 70's as the basis for the six-year rule is beyond belief. However, at the moment, some of the lenders are using this argument. We have one with Barclays going on despite them already having removed three other ones - yet hey are fighting this one tooth and nail. Interesting how the banks give in when the default is made up of penalty charges and remove the data (thus admitting that they have breached the contract) yet seem unwilling to do so when another breach of contract (i.e. over-processing of data) occurs.

 

I think that it's maybe time to ramp this thing up to another Court. We have a very good case that's been kept in reserve which might be the catalyst.

 

I will keep you informed.

 

Keep your head up and you did win the moral argument... another court, another judge, another day... and it could have been totally different. I'm finding that all the time.

[SurlyBonds]

 

 

Just a thought

 

Welcome aboard Duncan, and you seem to have grasped our argument with ease... It seems to be one rule for some, and another rule for others. The I.C.O. is not effective in applying equity as they have too many vested interests in the credit industry.

[un1boy]

BRAVO!

 

I have just come across this thread. I feel Mr DG that I have been locked in a room with you personally for the past 3 days (and nights) as I have divulged the huge amount of information this thread contains!

 

All I can say is that you deserve one huge pat on the back for ALL your efforts. You have talked the talk and more importantly walked the walk on this one. You took them right to the wire and the whole decision came down to one word "unwarranted".

 

I know you must be personally gutted at the outcome after all your effort, but although not 'legally', you have set one hell of a precedent on this board for consumers standing up for their rights, and for that you should hold your head high.

 

In trying to summarise the outcome, it has created a high hurdle to try and jump in approaching from the angle of a S.10(1) notice. To me now it looks like an impossible argument to make that you suffered "substantial damages or distress and that they are unwarranted".

 

I would presume that the Judges thinking on this was that altough you had actually suffered substantial damages in having to pay higher interest rates on a mortgage, and that even though they may have been considered dispropotianate, the reason you had to pay more was because of the existence of the default in the first place, and therefore your losses were 'warranted'.

 

Unfortunately this gives any Data Controller the 'get out' clause they need in not having to comply with your S.10(1) notice, and carte blanche freedom to continue to process your data, unfortunately to your detriment.

 

It seems the only way you could win an 'unwarranted' argument was if the default had been entered in error or unlawfully to begin with...and perhaps if the defaulted amount was entirely made up of unlawful charges to begin with. The 'unwarranted' argument would certainly hold more water in these cases and may have a better chance of succeeding.

 

I am no legal expert by any means and I can only use the same thought processes that we all do here in trying to build a legal argument. My head is spinning with a solid 3 day head to head with you , but I have been trying to check other threads and take some notes as I went along and wondered if there was another angle that cases could start from.

 

There was a lot of early discussion about the contractual permissions angle that SB was involved in. I know that the argument used against this was the need for only one of the conditions of Schedule 2 to be necessary. Therefore permission was not deemed necessary. This was backed up by that stalwart of consumer protection the ICO saying that permission could not be 'freely obtained' to begin with, so therefore everyone was able to squirm out of the permissions issue by using :

 

However Shedule 1 states:

 

So the argument arose 'was the data considered sensitive and personal'? In another thread I read a reply from one of the CRAs after a complaint to them directly (sorry, I didn't recored a link)

 

So if the CRA believes that the personal data is sensitive, and even more importantly, if Parliament believes it to be sensitive, then a court should also believe that it is sensitive. This would mean that the squirmy cop out Section 2 6.(1) clause would also need to be backed up with Schedule 1 - 1(b):

 

So we would then need to look to Schedule 3

 

I have only included the the first section of Schedule 3 as it seems to be the oly one which would apply Full Schedule 3 available here

 

This would bring us back full circle to the contractual issue, and was that explixcit consent part of any original contract, and has that consent been rescinded by the ending or expiration of a contract. Which is straight back in SB's territory.

 

I think early discussions assumed all the time that looking at Schedule 2 conditions, Schedule 2.1 stated "1. The data subject has given his consent to the processing." and if contracts eneded then consent was no longer given.....but the ICO raised the 'f**k you pal under 6.(1) we don't even need your consent.

 

But if the data can be justly described as being "sensitive personal data" then it stands that the data subject can say "I don't care about your Schedule 2 6(1) squirm out clause, you are going to have to find a clause in Scehdule 3 to comply with these also, and since the contract has now ended you no longer have my 'explicit consent' from the Data Subject to process my data as that 'explicit intent' was a term of the contract which has ended.

 

Just a thought

 

Brilliant summary - welcome to CAG mate!

 

The information is sensitive and Experian state that all the time on their website.

 

For a start they make you send in id docs and say that only you can access the information, no one else. They also make you have a unsername and password and enter your passnumber each time you want to access your file.

 

The best bit though is:

 

Due to the sensitive nature of the information and data on this site, please close your browser

whenever you wish to leave CreditExpert. Copyright © 2007, Experian Ltd. All Rights Reserved.

 

Taken direct from the creditexpert system!

[dayglo]

I did look at the "sensitive data" angle - I concluded it was a non-starter.

 

2. In this Act "sensitive personal data" means personal data consisting of information as to-

(a) the racial or ethnic origin of the data subject,

(b) his political opinions,

© his religious beliefs or other beliefs of a similar nature,

(d) whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992),

(e) his physical or mental health or condition,

(f) his sexual life,

(g) the commission or alleged commission by him of any offence, or

(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

 

As far as the DPA is concerned, financial data is not considered "sensitive"

[un1boy]

I did look at the "sensitive data" angle - I concluded it was a non-starter.

 

 

 

As far as the DPA is concerned, financial data is not considered "sensitive"

 

Hmmm...

[dayglo]

BRAVO!

 

I have just come across this thread. I feel Mr DG that I have been locked in a room with you personally for the past 3 days (and nights) as I have divulged the huge amount of information this thread contains

 

locked in a room with me for 3 days - I suggest you get some expensive therapy as quicky as possible

 

All I can say is that you deserve one huge pat on the back for ALL your efforts. You have talked the talk and more importantly walked the walk on this one.

 

Thank-you very much. How kind.

 

You took them right to the wire and the whole decision came down to one word "unwarranted".

 

yep - it probably didn't help me when early on during the hearing I let it slip that I wasn't sure exactly what, in this context, "unwarranted" meant. The judge, to be fair to her, said "neither did she as it isn't defined anywhere in the act"

 

 

I know you must be personally gutted at the outcome after all your effort, but although not 'legally', you have set one hell of a precedent on this board for consumers standing up for their rights, and for that you should hold your head high.

 

maybe, but please, and this is aimed more at other folk reading this rather you Duncan, please remember the following.

 

1) I lost - I understood the arguments pretty well in my opinion and I lost.

 

2) I came within inches of having to pay vodafone's legal costs. The judge said this was the most complicated case she'd heard in many years and the level of complexity meant it was not suitable for small claims track. If anyone else is thinking of following in these footsteps - be wary of your exposure to legal costs if you lose. Personally I regret ever taking this issue on, its cost me £220 in real money, proven a massive distraction in my personal life, and the sweat in the final half hour as the discussion moved towards paying costs was not pleasant.

 

I know SB has had a better record in this sort of area but please tread carefully before taking cases like these in front of judges. Even hot foxy ones like I had!

[duncan_disorderly]

I did look at the "sensitive data" angle - I concluded it was a non-starter.

Pity I see that the fact if you are a member of a Trade Union, or you have a political opinion, is considered more sensitive than your financial data! Not hard to see that Party Political donations carry a huge weight on those who construct our laws. Wonder how much the CRA's and banks put in the coffers of Political Parties. This law is to protect the consumer.....err no sorry... to protect the cash cow institutions who shaft the consumers...but that is another story!

 

 

locked in a room with me for 3 days - I suggest you get some expensive therapy as quicky as possible :grin:

I couldn't afford it

 

yep - it probably didn't help me when early on during the hearing I let it slip that I wasn't sure exactly what, in this context, "unwarranted" meant. The judge, to be fair to her, said "neither did she as it isn't defined anywhere in the act"

Strange?? She didn't understand what it meant in relation to the Act, but used it as her basis for ruling against you?

 

And on what basis I wonder is 'unwarranted' used in 6 -(1) of the Act that the institutions are using to avoid needing permission?

 

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

I am trying to interpret the final sentence of this. After all, the ICO have stated thet they take a 'wide view of legitimate interests'. Does this wide view extend to the legitimate interests of the Data Subject? Now are their actions unwarranted in any case by reason of the legitimate interests of the Data Subject? I wonder?

 

by reason of prejudice to the rights and freedoms

"Well you can't touch us with that one as we are a cash cow company and not a public body, so don't have to comply with The Human Rights Act.....we can shaft you all day long and there is no law to protect you....even this one...and no-one can do anything about it!"

 

Personally I regret ever taking this issue on, its cost me £220 in real money, proven a massive distraction in my personal life, and the sweat in the final half hour as the discussion moved towards paying costs was not pleasant.

I'm sure it was not pleasant. Why not publish your paypal eail addy? I for one would contribute as this thread was awash with:

• Really useful information
  
• Entertainment value

I can understand if you now just want this issue to go away. But stick with us on the board as your thinking is top notch.....even if you did lose

[dayglo]

Pity I see that the fact if you are a member of a Trade Union, or you have a political opinion, is considered more sensitive than your financial data! Not hard to see that Party Political donations carry a huge weight on those who construct our laws. Wonder how much the CRA's and banks put in the coffers of Political Parties. This law is to protect the consumer.....err no sorry... to protect the cash cow institutions who shaft the consumers...but that is another story!

 

I know - the lobbying process is a lucrative market these days - firms pay good money to for 'time' with MPs

 

Strange?? She didn't understand what it meant in relation to the Act, but used it as her basis for ruling against you?

 

I think her tongue was wedged in her cheek a little when she said it, in her summing up though she said "the burden of proof is on the claimant to PROVE that the processing is unwarranted and in her opinion I had not done that"

 

I am trying to interpret the final sentence of this. After all, the ICO have stated thet they take a 'wide view of legitimate interests'. Does this wide view extend to the legitimate interests of the Data Subject? Now are their actions unwarranted in any case by reason of the legitimate interests of the Data Subject? I wonder?

 

Actually, when you press the ICO on this point, they mean it to encompass the whole of the credit industry, both lenders and credit reference agencies have a 'legitimate' business interest and in their opinion that outweighs, in most cases (not all) the legitimate interests of data subjects.

 

Another interesting throwaway comment made by the judge was

 

"I am not bound at all by anything the ICO has either said or published and I will make up my own mind in this area. Having said that and having read what the ICO has to say in this area, I don't see any justified reason for disagreeing with them in this case"

 

I'm sure it was not pleasant. Why not publish your paypal eail addy? I for one would contribute as this thread was awash with:

• Really useful information
  
• Entertainment value

 

I'm not going to go down that road, its laden with booby traps for the future. We all give our thoughts freely here - I'd be against developing a "oh no I lost but I'm sure the good folk at CAG will bail me out" mentality.

 

We make our beds and we lie in 'em. Im glad you were entertained though - there were some funny moments!

 

 

I

can understand if you now just want this issue to go away. But stick with us on the board as your thinking is top notch.....even if you did lose

 

again, thanks very much. I like my thinking being described as "top notch" - not sure Mrs DG would agree though!

[c_allen]

I've just spent 3 days reading this thread and i'm really gutted for you:mad: , to lose after all the work you [ alright, and others ] put in is ??????????????????? can't think of a strong enough word without swearing, sorry.

I just hope that the people [ or member of their family] who decided to take your case all the way, and then went on to use an act thats supposed to protect the consumer AGAINST THE CONSUMER, end up being shafted by their own actions. sorry if this is seems a touch extreme, but ??????????????????, sorry just remembered '' no swearing''.

ANYWAY WELL DONE YOU, ARE TRULY A MODERN DAY HERO.

 

 

 

 

oh yeah i'm building up to claiming against the halifax for defaulting me, even though i'd sent the prelim for charges, LBA, and 2 letters very very clearly stating that the account was in dispute, over a period of 5 months, and 8 days AFTER i started court proceedings against them, then they went on to repay over 32 times the amount of the default. do you think i've got a case????????????

[Number6]

So sorry to hear it didn't go to plan Mr D.

 

Life is a complete B'stard!!!

 

Pete

[shelter pie]

It is a shame.

 

It makes me wonder what exactly these judges are thinking when they rule in cases like this!!!

 

It appears to be in your case, here - that the defendants solictor was more open to your case than the judge!!

 

Oh well.........

[dayglo]

Thanks Shelter Pie. You remind me of an old friend I miss.

[shelter pie]

Im sorry to hear that.....

 

And about your case......

 

Though i have dropped by now and agin to see how it was progressing.

 

Must be a pain with all the work you put in will you be having another

go? Can you appeal what the judge said or

will you have to take another tack? Im sure we will all

be routing for you if you do decide. Im sure there are plenty of people

here to help you - all you have to do is ask, most of us are here in the

daytime but it does get busier at evening!

Tomo is just another day - as they say!!!

[un1boy]

Have u read this from Experian's website?

 

Comments have been posted on internet message boards suggesting that it is unlawful for Experian to hold information about a credit account on a credit report once the account has been closed. We disagree.

In general, we hold such information for six years after the account has closed, as do the two other UK credit reference agencies. We are fully satisfied that this practice complies with the Data Protection Act 1998, and the Information Commissioner's Office, the relevant regulatory body, shares this view.

 

 

Here's the link to the above:

 

Your Credit Report Help Centre, from Experian UK

 

It also publishes this letter from the ICO regarding it:

 

Read a letter confirming the Information Commissioner's position.

 

lmao - they fail to mention exactly what statute gives them any "legal" right to hold the data.

[sam19677]

Sweeite I'm really sorry to hear about how your case went

 

Bye and Take care

Sam

xx

Edited March 20, 2009 by sam19677
none

[dayglo]

Thanks Sam.

 

bye.

[Shoestring]

SurlyBonds, in the light of some of these victories, is a case building for suing the cra's for damaging life and reputation etc? I appreciate that money to do such a thing is the all important requirement, but in principle is a case like this winnable -- and if it is, can there be a loss limit placed in case things go against the complainant?

 

I ask because it seems to me that there should be a second phase to all this activity for the sake of posterity and to scare the living daylights out of "them" for their arrogance and what damage they have done in the past to a multitude of people?

 

Shoestring

[SurlyBonds]

SurlyBonds, in the light of some of these victories, is a case building for suing the cra's for damaging life and reputation etc? I appreciate that money to do such a thing is the all important requirement, but in principle is a case like this winnable -- and if it is, can there be a loss limit placed in case things go against the complainant?

 

I ask because it seems to me that there should be a second phase to all this activity for the sake of posterity and to scare the living daylights out of "them" for their arrogance and what damage they have done in the past to a multitude of people?

 

Shoestring

 

Believe me, it is being worked on - it's taken the last 8 months of my life (and that of others) in going through every damned civil case on the subject that's ever been heard. We're building a tidy portfolio, but still more work , much more, to be done before we get it to a solid-enough case to be heard.

 

I am also in the process of establishing how we can get this to a higher Court, but I am NOT disclosing how we intend to do that on this forum as the C.R.A.s will read it and I want this as a complete surprise. I am also awaiting the outcome of Tom Brennan's case, as it has some relevant input.

 

P.S. Whatever happened to that Muppet from the C.R.A. who use to jump on here and spout buzz-word pontificating c**p? - I guess he's crawled back under his rock. I notice he still never updated their web advice pages even though he promised categorically to do so some six months ago, or more. I suppose that shows the 'real' character of those sort of 'people'.

[Shoestring]

Way to go! Most pleased to hear it and please keep information coming as and when you are able and understand youer reluctance to share anything at this stage of the game (personally I think this site is very likely riddled with employees from big corporations who are briefed to stay up to date on activity and report to management committees. I dare say a few "spooky" characters from big bro are here regularly too).

 

Anyway, it stands to reason that what the CRA's have done is unlawful and unreasonable and if a test case can be rbought - and won - they'll be dropping their trews pdq. Next stop is the banks who provided the information and stated it was accurate. Tougher nut legally but take it from me that they are also the type to unbutton and run if the fickle finger begins prodding their personal direction, as they are used to hiding in the corporate locker...

 

Shoestring

[pugsley]

I wonder has Dayglo actually got his life back now?

[Photovoltage]

Wow - 92 pages of posts on this topic.

 

Is going to keep me busy for a while.

 

I'm so angry at Halifax for putting a default onto my account, when clearly the amount on there of about £570 was all of their charges (I claimed back about £1500).

 

I'm really hoping that when I get a chance to sit down and read this thread and the one from Jonni2Bad I will be given some hope, cos right now I'm at the end of my tether and I just can't face the fact that for 6 years I'm going to be unable to get a credit card, a mortgage, a car etc... DAMN THESE BANKS

[dayglo]

I wonder has Dayglo actually got his life back now?

 

sadly not!