Dayglo's mission to get his life back!

[wicket]

priceless!! you cheeky boy!

[dayglo]

But they have agreed to remove, so why send a defence

 

because they can't afford a to have a 'county court judgement' against them as it would affect their ability to hold a credit licence under the Consumer Credit Act 1974. It's the same principle as bank charges - sometimes they submit a defence knowing full well that they have no intention of going to court and risk losing. this just buys them some more time that's all. I should have waited until past 4pm before sending the FAX (D'Oh)

 

anyway.... here it is (let me know when you spot the bit that suggests they can't find the original agreement!

 

1. This defence is filed and served without prejudice to the contention of the defendant that the particulars of claim do not comply with CPR Part 16 and/or do not disclose reasonable grounds for bringing a claim against the defendant in view of the fact that (among other things) the claimant does not plead (a) particulars of the disclosures of personal data which the claimant alleges amount to a breach of contract and/or the Data Protection Act 1998 and (b) the date that he alleges the contract between himself and the defendant came to an end. The claimant is invited to amend this deficiency in the pleaded case in default of which the defendant will seek appropriate orders from the court at the first case management conference.

2. Further, the defendant notes from the claim form that the claimant seeks removal of default notice from credit file. If by this relief the claimant is seeking an order removing data held by Credit Reference Agencies then it is denied that the claimant is entitled to such an order against the defendant on the basis alleged or at all.

3. It is admitted that from 8 August 2001 until matters pleaded below, the claimant maintained personal loan account xxxxxxxxxxxxx with the Defendant (“The Loan”). It is admitted that the Loan was subject to the terms of a written contract the date of which cannot be specified by the Defendant (“The Agreement”). The defendant is, however, able to refer to the terms and conditions that would have been incorporated into the Loan Agreement by referring to the precedent terms and conditions used by the claimant is 2001.

4. Prior to the Claimant and the Defendant entering into the agreement the defendant did make the claimant aware of the circumstances in which the defendant would provide his details and information to credit reference agencies which included in the event of default in making repayments due under the agreement and/or a failure to repay the loan following demand. This would have been known to the claimant through literature and information provided and/or made available to him by the defendant prior to him entering into the agreement. In the circumstances this became an express term of the agreement.

5. Further or alternatively; the following was an express term of the agreement, namely;

Where you borrow or may borrow from us, we will give details of your account and how you manage it to credit reference agencies. If you borrow and do not pay in full and on time, we may tell credit reference agencies who will make a record of the outstanding debt.

6. By letter dated 8 April 2002 the defendant gave the claimant notice pursuant to section 87(1) Consumer Credit Act 1974 that it would enforce the term of the agreement whereby it may demand repayment of all money outstanding under the agreement together with interest accrued and that demand would be made of the claimant by post on 22 April 2002 in the sum of £xx,xxx.xx unless the lending was repaid in full by that date or the claimant and the defendant came to some other arrangement with regard to repayment of the same.

7. The claimant did not pay the sum of £xx,xxx.xx nor did he come to any arrangement with the defendant with regard to repayment of the same as a result of which by letter dated 22 April 2002 the defendant made the demand for the repayment of £xx,xxx.xx. The letter stated (among other things) that: ”It is the Banks practice to register defaulters with Credit Reference Agencies if either full repayment or other arrangements satisfactory to the Bank have not been received within 28 days of this notice. This may restrict your ability to get credit in the future”.

8. The claimant did not make the requested payment within the 28 day period referred to in the letter as a result of which in March 2003 (when the claimant remained in default under the agreement) the defendant registered the Loan and the default there under with the credit reference agencies. The defendant understands that the credit reference agencies will retain the registration of this information for a period of 6 years.

9. For the avoidance of doubt it is the case of the defendant that at the date of the default under the agreement and/or at the date at which the information was registered, the claimant was still in a contractual relationship with the defendant in view of the fact that (among other things) the claimant remained indebted to the defendant under the agreement.

10. In 2006 the claimant repaid the outstanding loan as a result of which the defendant registered a note of satisfaction against the information registered in March 2003 (paragraph 8 above) which indicates to anyone viewing the data that the debt which was in default has now been repaid. The defendant was obliged to register this data.

11. In all the circumstances it is denied that the defendant has acted in breach of contract and/or the data protection act 1998 as alleged or at all.

11. Save as hereinbefore appears the defendant joins issue with the claimant on his claim.

 

Interesting that they suggest that I was still party to the agreement the moment before the default note is issued and then not?

 

I need to think about this some more... any helpful thoughts?

[Tinkerbelle]

1. This defence is filed and served without prejudice to the contention of the defendant that the particulars of claim do not comply with CPR Part 16 and/or do not disclose reasonable grounds for bringing a claim against the defendant in view of the fact that (among other things) the claimant does not plead (a) particulars of the disclosures of personal data which the claimant alleges amount to a breach of contract and/or the Data Protection Act 1998 and (b) the date that he alleges the contract between himself and the defendant came to an end. The claimant is invited to amend this deficiency in the pleaded case in default of which the defendant will seek appropriate orders from the court at the first case management conference.

My understanding:

Section 16.4 (1) states:

 

(1) Particulars of claim must include –

(a) a concise statement of the facts on which the claimant relies;

 

It seems as though they want you to give an exact date that the contract ended and precisely what personal data they are disclosing.

2. Further, the defendant notes from the claim form that the claimant seeks removal of default notice from credit file. If by this relief the claimant is seeking an order removing data held by Credit Reference Agencies then it is denied that the claimant is entitled to such an order against the defendant on the basis alleged or at all.

My understanding:

They are saying you can’t take them to court to get them to remove a default from a CRA based on your reasons.

3. It is admitted that from 8 August 2001 until matters pleaded below, the claimant maintained personal loan account xxxxxxxxxxxxx with the Defendant (“The Loan”). It is admitted that the Loan was subject to the terms of a written contract the date of which cannot be specified by the Defendant (“The Agreement”). The defendant is, however, able to refer to the terms and conditions that would have been incorporated into the Loan Agreement by referring to the precedent terms and conditions used by the claimant is 2001.

My understanding:

They can’t locate the original agreement, but seeing as you told them the loan was taken out in 2001, they have a copy they will use as reference.

 

4. Prior to the Claimant and the Defendant entering into the agreement the defendant did make the claimant aware of the circumstances in which the defendant would provide his details and information to credit reference agencies which included in the event of default in making repayments due under the agreement and/or a failure to repay the loan following demand. This would have been known to the claimant through literature and information provided and/or made available to him by the defendant prior to him entering into the agreement. In the circumstances this became an express term of the agreement.

My understanding:

They gave you a loan agreement that listed all their terms and conditions.

 

5. Further or alternatively; the following was an express term of the agreement, namely;

Where you borrow or may borrow from us, we will give details of your account and how you manage it to credit reference agencies. If you borrow and do not pay in full and on time, we may tell credit reference agencies who will make a record of the outstanding debt.

My understanding:

We can’t prove this was in the agreement (because we don’t have a copy of your original loan agreement), but we do have a copy of the T&C’s that would have been used at the time. You told it was about 2001, so we’ll go with that. Anyway, the T&C’s would have said that we will tell the CRA’s that you borrowed money from us and we will tell them how you conducted the account. Also we will tell the CRA’s about the conduct of your account even if you decide that you no longer want our loan. If you fail to keep up payments we may tell the CRA’s, but then again we may not. Depends on how we feel. We put “may” in out contracts but what we really mean is “will”.

 

6. By letter dated 8 April 2002 the defendant gave the claimant notice pursuant to section 87(1) Consumer Credit Act 1974 that it would enforce the term of the agreement whereby it may demand repayment of all money outstanding under the agreement together with interest accrued and that demand would be made of the claimant by post on 22 April 2002 in the sum of £xx,xxx.xx unless the lending was repaid in full by that date or the claimant and the defendant came to some other arrangement with regard to repayment of the same.

My understanding:

We told you to pay up the full amount of the loan or come to an arrangement with us.

 

7. The claimant did not pay the sum of £xx,xxx.xx nor did he come to any arrangement with the defendant with regard to repayment of the same as a result of which by letter dated 22 April 2002 the defendant made the demand for the repayment of £xx,xxx.xx. The letter stated (among other things) that: ”It is the Banks practice to register defaulters with Credit Reference Agencies if either full repayment or other arrangements satisfactory to the Bank have not been received within 28 days of this notice. This may restrict your ability to get credit in the future”.

My understanding:

Well buster we gave you a chance. You didn’t call us, you didn’t pay up so you know what, I’m going to tell everyone that you are a bad person. You borrowed money and you didn’t pay it back in time. And by the way we agreed between us – that’s all us old boys - that we will tell each other about people who don’t pay on time, and we’re going to do this by telling the CRA’s – everyone else does it so we will too. Oh and by the way, after I tell all my buddies about you, they won’t want to touch you either – so there stick that in your pipe and smoke it!

 

8. The claimant did not make the requested payment within the 28 day period referred to in the letter as a result of which in March 2003 (when the claimant remained in default under the agreement) the defendant registered the Loan and the default there under with the credit reference agencies. The defendant understands that the credit reference agencies will retain the registration of this information for a period of 6 years.

My understanding:

Well we did warn ya! Our mates at the CRA said they’ll hang on to it for 6 years and that everyone else does it, so not much I can do about it now. It’s outta my hands.

 

9. For the avoidance of doubt it is the case of the defendant that at the date of the default under the agreement and/or at the date at which the information was registered, the claimant was still in a contractual relationship with the defendant in view of the fact that (among other things) the claimant remained indebted to the defendant under the agreement.

My understanding:

Although we defaulted you that doesn’t mean that we no longer have a contract buster. You still owe us the dosh, and on that basis we still have a contract – even though the default notice said we ended it. But I don’t know for definite as we don’t have it to hand.

10. In 2006 the claimant repaid the outstanding loan as a result of which the defendant registered a note of satisfaction against the information registered in March 2003 (paragraph 8 above) which indicates to anyone viewing the data that the debt which was in default has now been repaid. The defendant was obliged to register this data.

My understanding:

ok so you paid. what do you want a medal? Ok I tell you what, I’ll tell my mate down at the CRA to tell everyone that you finally paid us so you don’t sue us for libel. Like I said before, we have an agreement with the CRA’s so we had to tell them. You scratch my back I scratch yours – you know the score ;-)

 

11. In all the circumstances it is denied that the defendant has acted in breach of contract and/or the data protection act 1998 as alleged or at all.

My understanding:

Your claims are denied mate. Get back in yer box.

 

12. Save as hereinbefore appears the defendant joins issue with the claimant on his claim.

No idea what this means

[dayglo]

tinks - this is your finest hour! That is a brilliant post.

[Tinkerbelle]

Thanks

 

I was taking it seriously but after failing to find anything of substance...well you know..

[dayglo]

I know! I love how it slowly degenerates.... I can imagine Mr. Cobbetts man reading it out in that way in court. brill (what no new avatar yet - )

[Tinkerbelle]

I know! I love how it slowly degenerates.... I can imagine Mr. Cobbetts man reading it out in that way in court. brill (what no new avatar yet?)

 

I need to resize it

[dayglo]

need a hand?

[Tinkerbelle]

need a hand?

 

Yes please. It needs to be 90x90

[dayglo]

hang on... Aardvark has popped round for a beer!

[jimfishybob]

Interesting that they suggest that I was still party to the agreement the moment before the default note is issued and then not?

 

This may be true but is largely irrelevant.

 

They are still submitting your info to the CRA's. Your contention isn't that they did it originally but that they are still supplying 'default flags' in their monthly runs.

[Guest willowb]

Tinks.....I didn't know such fairies existed! WOW!!!!! you are amazing:D

 

Wxx

[dayglo]

They are still submitting your info to the CRA's. Your contention isn't that they did it originally but that they are still supplying 'default flags' in their monthly runs.

 

I've looked into the mechanics of this - and technically they don't update my file monthly, they just choose not to do anything with it at all. The CRAs renew it monthly in the absence of any instruction to the contrary

[Guest willowb]

barstewards:mad: so, basically the CRAs claim to be ,processors when in fact they are controllers!!!

 

Wxx

[jimfishybob]

I've looked into the mechanics of this - and technically they don't update my file monthly, they just choose not to do anything with it at all. The CRAs renew it monthly in the absence of any instruction to the contrary

 

Really?

 

Every day's a school day.

[jimfishybob]

That complicates things.

 

Will ponder on this for a while...........

 

Is it the same for all creditors?

[dayglo]

That complicates things.

 

Will ponder on this for a while...........

 

Is it the same for all creditors?

 

it's different for each type of creditor and each CRA.

 

Some do process a monthly 'keep eveything as it is' flag and some send 'only these records have changed' system'

[dayglo]

Ok - getting serious now. Here is the defence received from Vodafone along with the Allocation Questionnaire. The AQ is going to cost another £100 - those of you following a few steps behind take note.

 

Attached to the defence is a photocopy of the Ts & Cs that existed at the time of the latest upgrade I took from Vodafone in 2004. They don't have anything with my signature on it and in their defence they claim that they don't require such documents.

 

Also attached is a copy of the letter (that the ICO now send out as standard) that the ICO sent to me as part of my test-case ruling earlier this summer (see earlier in this thread for details)

 

I could do with some help/guidance in completing the AQ.

 

1. This defence is served without prejudice to the Defendant’s contention that the Particulars of Claim should be struck out pursuant to CPR rule 3.4 on the grounds that it discloses no reasonable grounds fro bringing the claim.

 

2. It is admitted that the claimant entered into an airtime agreement with the defendant on18 December 1997 for the supply of mobile airtime in respect of mobile number xxxxx. The said number was, at the Claimants request, transferred to a Pay As You Talk account on 14 August 2004.

 

3. On 17 January 2000 the Claimant entered into a separate, additional airtime agreement and was allocated mobile number yyyyy. The claimant entered into new upgrade agreements on 6 January 2001, 18 January 2002, 22 March 2003 and 15 April 2004.

 

4. In breach of the airtime agreement dated 15 April 2004, the Claimant failed to pay for the airtime service for the said mobile number yyyyy and the airtime service was suspended on 31 July 2004 and thereafter cancelled on 24 September 2004 being in arrears in the sum of £385.22.

 

5. It was an express term of the airtime agreement dated 15 April 2004 [ see attachment 1 Clause 10) c)] that the defendant could disclose personal data to credit reference agencies and the said express term was based on wording provided by the credit reference agencies which in turn is based on guidance provided by the Information Commissioner’s Office.

 

6. It is denied that the agreement referred to in paragraph 1 of the particulars of claim or any subsequent airtime agreements referred to in the defence contained any provision or agreement that the disclosure of personal data in relation to that agreement would conclude with the termination of that airtime agreement.

 

7. The defendant uses the facilities of the credit reference agencies to assess the level of risk posed by consumers applying to take out an airtime agreement on our standard terms and conditions. Although not a credit provider in the traditional sense, the post-pay or contract service allows customers to use the Defendants products and services and to pay for that use on a monthly basis in arrears.

 

8. The Claimant’s claim appears to be premised on the fact the only legitimate basis on which the defendant can process and disclose personal data to the credit reference agencies is his consent, that his consent is signified by the signature on this airtime agreement, and that his consent was withdrawn when the airtime agreement was terminated.

 

9. The Defendant disputes the premise that consent is the only legitimate basis on which personal data can be processed for the following reasons:

 

9.1. The maintenance of a complete, accurate and up to date credit reference history maintained by the credit reference agencies for use by credit providers to determine appropriate levels of risk is an essential part of a responsible credit and lending industry.

 

9.2. It is in consumers’ interest that credit facilities are available and that decisions by credit providers are based on complete, accurate and up to date information.

 

9.3. In order for credit providers to make such proper assessments, it is essential that all users of credit reference facilities adhere to the same data processing policies with regard to definitions i.e. what does “default” mean and how long personal data will be retained for. Different lenders or credit providers may give greater or lesser weight to the information depending on the level of risk that they are willing to accept, but there needs to be a common understanding about the information on which those assessments are made.

 

9.4. Whilst the processing of negative information about the Claimants payment history may have an impact on his ability to obtain credit at a discounted rate, it could not be argued that the processing in general is unwarranted. If the claimant’s assertion were correct, it would meant that all consumers would have a pristine or ‘clean’ credit reference record because those consumers with a poor credit or payment history would simply not consent to any negative personal data being processed. In such a case, credit providers and lenders would not know which credit records were accurate and complete and which were incomplete in that the individual had withdrawn or not consented to their personal data being processed in such a manner. This could lead to a situation where all consumers were treated as a higher level of risk.

 

10. These reasons are supported by the requirements of the first principle of the Data Protection Act 1998 requires that personal data shall be processed fairly and lawfully, and in particularly shall not be processed unless at least one of the conditions in Schedule 2 is met.

 

11. Schedule 2 of the Data Protection Act 1998 sets out 6 grounds on which the processing of personal data may be lawful; the first being the consent of the data subject i.e. the person is the subject of the personal data in this case, the Claimant.

 

12. Whilst the consent of the data subject, in this case the Claimant, may be the first condition for lawful processing set out in schedule 2, it is not the only condition. All conditions set out in the schedule are equally valid. The defendant contends that the continued disclosure of personal data to the credit reference agencies is legitimised for the reasons above by the following clause:

 

12.1. Clause 6 of Schedule 2 of the Data Protection Act 1998 provides further grounds for lawful processing where “that processing is necessary for the purposes of legitimate interests pursued by the data controller (in this case Vodafone Limited) or by third party or third 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.

 

13. The defendant therefore contends that the issue of the Claimant’s consent is not relevant to the lawfulness of the continued processing of his personal data following the termination of the contractual relationship with the Defendant.

 

14. It is denied that the defendant has arbitrarily extended the terms of the airtime agreement. The defendant will continue to process the personal data supporting the Claimant’s credit reference record of a period of six (they have missed out “years” in the document) following the termination of his contractual relationship with the defendant, because it is common practice of the credit reference agencies to retain information about defaults or non-payments for a period of six years.

 

15. There is no statutory requirement prescribing the period for which personal data are retained by credit reference. The only statutory requirement in relation to personal data retention can be found in the Fifth Data Protection Principle of the Data Protection Act 1998 which states that “personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or purposes.”

 

16. Attached [Attachment 2] is a standard letter from the Information Commissioner’s Office setting out their view on the lawful guidance of a six-year retention period for default information on an individual’s credit reference record.

 

17. Because the lawful policy of credit reference agencies is to retain default information for a period of six years, the defendant as the source of the Claimant’s default information is required to retain the personal data of the claimant for the same period for that purpose. This is to ensure that during the six year retention period, any dispute arising from the information recorded on the credit reference agency record can be fully investigated.

 

18. Furthermore, the Statutes of Limitations provides for a period of 6 years within which legal action for a breach of contract may be commenced. It is therefore only right that the Defendant retains personal data to either pursue or defend itself in respect of any legal action arising from such a matter.

 

19. It is denied that the continued processing of the Claimant’s personal data for the purposes of supporting his credit reference record for a period of six-years is unlawful.

[wicket]

Hi Dayglo. I can't do a blow by blow like Tink but this bit tickled me...

 

9. The Defendant disputes the premise that consent is the only legitimate basis on which personal data can be processed for the following reasons:

 

9.1. The maintenance of a complete, accurate and up to date credit reference history maintained by the credit reference agencies for use by credit providers to determine appropriate levels of risk is an essential part of a responsible credit and lending industry.

 

9.2. It is in consumers’ interest that credit facilities are available and that decisions by credit providers are based on complete, accurate and up to date information.

 

9.3. In order for credit providers to make such proper assessments, it is essential that all users of credit reference facilities adhere to the same data processing policies with regard to definitions i.e. what does “default” mean and how long personal data will be retained for. Different lenders or credit providers may give greater or lesser weight to the information depending on the level of risk that they are willing to accept, but there needs to be a common understanding about the information on which those assessments are made.

 

9.4. Whilst the processing of negative information about the Claimants payment history may have an impact on his ability to obtain credit at a discounted rate, it could not be argued that the processing in general is unwarranted. If the claimant’s assertion were correct, it would meant that all consumers would have a pristine or ‘clean’ credit reference record because those consumers with a poor credit or payment history would simply not consent to any negative personal data being processed. In such a case, credit providers and lenders would not know which credit records were accurate and complete and which were incomplete in that the individual had withdrawn or not consented to their personal data being processed in such a manner. This could lead to a situation where all consumers were treated as a higher level of risk.

 

So basically theire whole of sharing data is based on tha fact they don't need your permission as to be honest guv were doing you a right favour by sharing your data - look at all the lovely things you can get (Not)!

 

Oh, and by the way m'lord. if we don't share anything how can we tell who the rotten apples are - See if we played by the rules and didn't share duff info that were weren't meant to in the first place everyone would be getting the best interest rates - yep mlord we realise our system is corrupt but we can't think of another way to it legitimately - we've been doing it for years now, everybody does it!

 

What mlord - show where in the DPA we don't need his agreement and it says we can if it's doing him a favour??? hmmmmm

 

If that's the case on the flip side why don't the share with everyone how much money you have invested with a bank - think of all the favours they'll be doing you as competitors flock to your doors with better products than theirs

[Guest willowb]

Go Wicket!!! Go Wicket!!!....yeah.....take heart dayglo....they would surely fail in Court and they know it!!!

 

It is true and therefore it is.....

 

Wxxx

[gizmo111]

18. Furthermore, the Statutes of Limitations provides for a period of 6 years within which legal action for a breach of contract may be commenced. It is therefore only right that the Defendant retains personal data to either pursue or defend itself in respect of any legal action arising from such a matter.

True - but the defendant doesn't need someone babysitting this information and sharing it with all and sundry - they have their own records system.

The defence is basically saying that all info can be sahared for commercial reasons - criminals are afforded more respect. I have a battle with British Gas on the same thing so will be continuing ot watch closely.

Good Luck - if you need any help researching for defence let me know and I will try my best to help.

[dayglo]

Good Luck - if you need any help researching for defence let me know and I will try my best to help.

 

thanks for the offer - much appreciated. Although I must wag my finger in your general direction .... I'm not the one defending remember! I am the claimant. :grin:

[gizmo111]

thanks for the offer - much appreciated. Although I must wag my finger in your general direction .... I'm not the one defending remember! I am the claimant. :grin:

 

Sorry - I meant your reponse to defence!

[dayglo]

:grin: I know!

[ppauls150]

Dayglo i have followed your thread all the way but you know what it is like when you have soo many threads you tend to forget certain info though you roughly remember what it is about. Anyway with that what i am saying is what these companies might be forgetting is that case that was won on appeal regarding where the default was not issued properly and as such it was made to be removed. I am sure you know the case i am talking about. So all that rubbish and what have you they are trying to get the case dismissed with it total rubbish as at the end of the day you surely are asking for the default to be removed on the basis that it was not properly issued in the frist place and they cannot prove otherwise. Like other people say forget what they are saying and just state the facts K.I.S.S