NEED ADVICE ON HOW TO FILL IN POC'S - CRA denied my Automatic decission request

[bh2362]

The best thing you could do is have a look through my threads - the HFC ones are almost the same, but I had to force them to remove Defaults which shouldn't have been there.

 

Not shop direct, but they are all the same in the end.

 

Thanks c

 

Do you have drafts and witness statements on these threads to give me some ideas ?

[car2403]

Yes indeedy

 

search car2403 in the thread titles - the HFC ones look relevant, although relate to loans not running account credit. Oh, the Barclays one is always worth a laff if you're ever bored - I wonder how much they would pay me to remove it from the site?

[bh2362]

hi Chris & guys I need some help i have drafted some pocs i intend to take shop direct to court they did not respond to my section 10 & 12 request.

im new to this this is what i got so far,

 

can anyone help me on this please.

 

Order under Section 10 and Section 12(1) of the Data Protection Act 1998

 

PARTICULARS OF CLAIM

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. The Claimant had an account number XXXXXXXXXXXX ("the Account") with the Defendant which was opened on or around (XXXX)

 

3. On XXXXXX the Claimant sent a request, pursuant to Section 10 and section 12 of the Data Protection Act 1998 to the Defendant.

4. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Request the Claimant has suffered damage to his reputation his creditworthiness, had suffered a much higher payment on his mortgage, and also had been refused credit.

6. The damage and distress caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £150

Add any further things that can be clearly quantifiable, and to which you can provide proof.

Please be aware that claims for distress are only available where the distress is caused by the quantifiable damage. You would usually need professional evidence in support. If you are intending to go down this route it is vital you contact us before proceeding.

7. The Claimant seeks an order that the Defendant do comply with the Claimant's request under section 10 & section 12 of the data protection act, and cease to continue processing the claimaints data.

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

Signed:

Date:

 

[name]

[bh2362]

Bump

[nicklea]

bh,

 

You'll have a real problem with this in court I would suggest.

 

First of all, you refer to section 12. I really would suggest that you are barking up the wrong tree with this. I suggest you have an indepth read of section 12 to understand what it actually says. Automated decision making by Shop Direct cannot have any effect on your application for further credit. I would suggest that you will have a very hard time proving that this has happened.

 

If you have been declined for credit you need to go to the creditor that declined you - NOT shop direct

 

 

 

With regards to the second part, all that the data controller is required to do under section 10 is to reply to your notice. I would suggest that you will be on very sticky ground trying to prove that their failure to reply to your notice has caused you damage.

 

The whole point of this is to get the specific performance of them replying to your notice.

 

The next step will depend on how they reply to your notice.

[bh2362]

They failed to reply to my notice ! ! !

[The Mould]

Hello bh

 

You do not need to issue a claim in order to be able to submit an application in respect of the order for compliance of requirements imposed upon the data controller under the DAP.

 

Sec10 - subsection 4 - if a court is satisfied, on the application of any person who has given notice under subsection 1 (etc, etc, etc).

 

If you would kindly re-read sections 10, 12 and 14 again you will understand that issuing a claim is not neccessary in the circumstances you have described.

 

If there is any adverse data entered on your credit files, then the adverse data [is] damage in it's self, if you have been unjustly deprived of credit or your credit worthiness has been affected unjustly, then that is also damage. You could argue that their negligence in failing to comply with their obligations under DPA, has caused you distress, this is a tort and it is known as negligent infliction of emotional (mental) distress (NIED).

 

Or, you could argue Intentional infliction of emotional (mental) distress (IIED), they have disregarded your correspondence, they have wilfully ignored you said notice, in court they will need to provide genuine, valid reasons for not responding to your said notice.

 

(N244) Application notice filed to court requesting compliance with your said notice.

 

Kind Regards

 

The Mould

[bh2362]

Thanks mould, everyone else seems so negative

When I say this is what I am trying to achieve.

It was car who said if I done this as an application I would

Leave myself open to major costs.

Is this right ? They are the ones ignoring the request

Mould would you be able to help draft this application?

I will type something up tomorrow shall I pm you or post up here. You have been the most positive cagger on this issue.

 

Thanks again

 

B

[car2403]

An application without a claim for costs/damages would fall in Part 8, I believe

[nicklea]

 

If there is any adverse data entered on your credit files, then the adverse data [is] damage in it's self, if you have been unjustly deprived of credit or your credit worthiness has been affected unjustly, then that is also damage.

 

This is not correct. This would only be damage if they did not have your consent to share the data and/or the data was incorrect.

 

If they have a signed agreement then there can be no claim for damages as you have agreed that they can process your personal data in this way and it is - I presume - accurate.

 

I really would suggest that you will be in a tricky situation trying to prove as a litigant in person that any damage or distress has been caused by their failure to respond to your notice.

 

The whole point of this process is to get them to provide you with a copy of the signed agreement or admit that they do not have one.

 

If they admit that they do not have a signed agreement as a result of this application the NEXT step is to hit them with a claim for damages.

 

What do you think would happen to your claim for damages if they provided a copy of your signed agreement following you making this application?

 

You say that everyone is very negative here. Would you prefer people just to totally agree with whtever you say and encourage you to go ahead without warning you of the problems?

 

You'll find some people on here that just encourage people to do some quite, in my opinion, silly and/or dangerous things and, of course, they don't have to pick up the pieces afterwards when it all goes wrong.

 

I would suggest that it is always good to listen to arguments on both sides of any discussion so that you can form your own opinion.

[bh2362]

thanks nicklea for the advice, the reason my back up is that i have sent letter upon letter to them, addressed to tha data controller even addressed "private and confidential" to the data controller, when i get a reply from them they dont respond to my issues surrounding the data protection act, the letter is from a teenaged clerk somewhere in shopdirect land, saying "because you ordered goods we can process your data"

the problem i have is i have read the principles of the data protection act and consent is the first principle.

shop direct never got this, i ordered on my debit card a pair of jeans the only infomation i gave was my billing and postal address, then 2 weeks later i get a welcome letter saying i have a £500 credit limit.

i did not ask for this they gave me this.

so they are in breach on principle 1

now I have been sending my letters to the data controller and im not getting a responce from the DC.

it is being treated with a box standard template they send to fob people off!!.

enough is enough i cannot just let this go i have everyright to ask them to decist from processing my data, there is no exemption that permits it not to be granted, i have a letter from the saying they cannot find the agreement, and they wont be collecting on the debt.

 

i just need some help on this guys....

they have been send the section 10 with 21 days notice and have ignored it, i did not get a reply back from the Data controller.

 

can someone advise me what know?

 

do i go straight now and fill in the N244 to get the court to force them to make a decission?

 

:mad2:

 

B

[bh2362]

thanks nicklea for the advice, the reason my back up is that i have sent letter upon letter to them, addressed to tha data controller even addressed "private and confidential" to the data controller, when i get a reply from them they dont respond to my issues surrounding the data protection act, the letter is from a teenaged clerk somewhere in shopdirect land, saying "because you ordered goods we can process your data"

the problem i have is i have read the principles of the data protection act and consent is the first principle.

shop direct never got this, i ordered on my debit card a pair of jeans the only infomation i gave was my billing and postal address, then 2 weeks later i get a welcome letter saying i have a £500 credit limit.

i did not ask for this they gave me this.

so they are in breach on principle 1

now I have been sending my letters to the data controller and im not getting a responce from the DC.

it is being treated with a box standard template they send to fob people off!!.

enough is enough i cannot just let this go i have everyright to ask them to decist from processing my data, there is no exemption that permits it not to be granted, i have a letter from the saying they cannot find the agreement, and they wont be collecting on the debt.

 

i just need some help on this guys....

they have been send the section 10 with 21 days notice and have ignored it, i did not get a reply back from the Data controller.

 

can someone advise me what know?

 

do i go straight now and fill in the N244 to get the court to force them to make a decission?

 

:mad2:

 

B

 

bump

[nicklea]

ok,

 

Important question for you, did you do this online or from an actual physical catalogue that you had without alreaady being registered as a customer.

 

I've just had a look at one of the shop direct websites. It was called additions. I assume that their other sites like Littlewoods and isme operate in the same way.

 

Beofre you can order from them you need tro register as a customer and give your name address, telephone number etc.

 

Then, at the bottom of the page is this phrase:-

 

By clicking continue you are agreeing to the website Terms & Conditions and Privacy policy

 

If you actually read the terms and conditions and the privacy policy you will see that you have agreed to them opening a credit account and sharing your data with CRAs.

 

So you have given them your consent.

 

Also, what the muppet from shopdirect said in his reply to you is, in essence, correct. You wouldn't have been able to order any goods from them without first having agreed to their terms and so the fact that you have ordered goods would imply that you have registered as a customer and so agreed to their terms.

 

In this situation, I would suggest that if you do go ahead with this application then the most you will get from them is a printout showing your application just above that phrase:-

 

By clicking continue you are agreeing to the website Terms & Conditions and Privacy policy

 

 

I'm sorry if this is not what you want to hear but I really would suggest that you are not going to achieve much by pursuing this matter in court - however, of course, this is just my opinion.

[The Mould]

Good afternoon bh

 

The advice I have given to you was based on what you had reported on the case.

 

If, as I have now just read, you have entered into an agreement with the creditor and there are terms and conditions to said agreement, whereby you have consented to the processing of your personal data, then any such processing would not be unlawful.

 

If information that has been entered onto your credit files by this creditor is incorrect, then that [is] adverse data and as such, it is recognized in law as damage in its self.

 

What exactly do you want the creditor to do and why? This is what the Judge will want to know, so please give me the reason why you say the processing of your personal data is a) unlawful and b) has caused you damage and distress. I know what you have said previously, however, reading the last few posts, the case seems somewhat different.

 

Don't take the above the wrong way bh, I just want to make sure that you do have grounds for making the application, before anyone else posts comments in respect of any advice I give or have given.

 

Kind Regards

 

The Mould

[car2403]

I think you should all of my O2 thread, BH - it's a very similar situation that you find yourself in here, and it was a long haul in to Court. Well, I'll let you read the thread to find out what happened in the end;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?111666-car2403-v-o2-(-amp-Wescot-DCA)(Default-removal)

 

BTW, the Default I had with O2 is now not on my credit file, but only because I settled the debt and then waited for it to expire on my credit file - there was no other way of removing it.

 

Again, read the thread and you'll see what went on.

 

(The beauty of CAG - someone has usually already tried what you think you are going to do and you can see what hard work it was and what the outcome was...)

[bh2362]

ok,

 

Important question for you, did you do this online or from an actual physical catalogue that you had without alreaady being registered as a customer.

 

I've just had a look at one of the shop direct websites. It was called additions. I assume that their other sites like Littlewoods and isme operate in the same way.

 

Beofre you can order from them you need tro register as a customer and give your name address, telephone number etc.

 

Then, at the bottom of the page is this phrase:-

 

 

 

If you actually read the terms and conditions and the privacy policy you will see that you have agreed to them opening a credit account and sharing your data with CRAs.

 

So you have given them your consent.

 

Also, what the muppet from shopdirect said in his reply to you is, in essence, correct. You wouldn't have been able to order any goods from them without first having agreed to their terms and so the fact that you have ordered goods would imply that you have registered as a customer and so agreed to their terms.

 

In this situation, I would suggest that if you do go ahead with this application then the most you will get from them is a printout showing your application just above that phrase:-

 

 

 

 

I'm sorry if this is not what you want to hear but I really would suggest that you are not going to achieve much by pursuing this matter in court - however, of course, this is just my opinion.

 

Hi nick,

 

This was certainly not the case if there was I would have read them this account was pre 2004, we seem to be defending shop direct are the worlds worst for opening accounts without regulated agreements.

Anyway this is turning in to a me v shop direct thread.

I have sar requested them last month so am awaiting this as well.

 

I have nothing to lose by requesting and order for them to comply with the section 10 request.

They would need to state if they have an exemption for the notice. "they need to show consent"

I'm sure I have been over this before.

 

Thanks chris I had read a few of yours threads they are very imformative and useful, and mould as I know I have not given consent to them in a form or a tick box.

 

-----------/-/////////------------

 

So what happens if they them don't comply to a court order ?

[car2403]

Here's the crack, then, BH...

 

Unenforceable agreement = unenforceable debt

 

Unenforceable debt = no default possible

 

They are relying on the DPA, as the Mould has pointed out, to process your data. This is because you seemed to have consented to it at the time of ordering. Whether you intended to open an account or not, they opened one as you gave them permission to do so by ticky boxes. This is a common error - not reading the small print. You're not alone, there.

 

Send them a CCA request and a DPA SAR. You really need them to admit to having no agreement, in writing, then you can attack this properly, using the CCA rather than relying on the (very flimsy!) data protection legislation that you are.

 

Of course, there's pitfalls with CCA challenges, but as you know they don't have an agreement they can enforce, it should be fairly straight forward, hopefully? Just hoping that you haven't really confused them with the DPA letters, now moving to the CCA and they 'tie' the two requests together. The duties under each Act are independant of each other, of course, but getting these people to recognise this will be an uphill struggle.

 

Makes sense now?

[bh2362]

Yes chris thanks now we are talking

 

I have been down the Cca route I have a letter sayings that they cannot find the agreement

I have this in writing.

Don't worry I have the time to spend on this

I have also sent them a request under CPR 31 for the agreement. Again this was ignored.

 

Do you think dear chris I would be better to file an application for the disclosure of the said agreement?

One this is done I will have a yes or no on whether they have the agreement?

 

Shall I send an lba the apply to the court and forget about the dpA route for now?

 

B

[bh2362]

bump

[car2403]

I think the DPA is still relevant, but only once you've shown that the data being shared is inaccurate, because there can be no default of an agreement that is unenforceable, for there is no legal obligation to repay. It gets a bit sticky, as unenforceable doesn't mean 'not owed', but then the arguments are inter-twined and not independent.

 

Getting a Court to see it that way, especially in light of lots of recent developments in case law surrounding CCA claims, isn't going to be easy.

 

Which part of CPR 31 did you use?

 

Not being able to find the agreement doesn't mean they don't have one, of course.

 

The next move is going to need some serious consideration in light of all this.

 

did you have a looky at my HFC threads, might be something of use there for you?

[bh2362]

hi mate,

 

i think it was CPR 31.6 i read in on one of PT's threads.

still reading through your hfc thread i did read on from start to finish i can remember was it the one where you took it to court and decided not to continue due to the cost falling on you?

i know it went quiet and you said you was not telling what happened. did you strike a deal?

 

B

[car2403]

hi mate,

 

i think it was CPR 31.6 i read in on one of PT's threads.

still reading through your hfc thread i did read on from start to finish i can remember was it the one where you took it to court and decided not to continue due to the cost falling on you?

i know it went quiet and you said you was not telling what happened. did you strike a deal?

 

B

 

I didn't strike a deal, they did

[bh2362]

I didn't strike a deal, they did

 

Good on ya chris, i couldnt make out why the thread came to a close and you said you lips was sealed, great stuff.

 

so what do you think i should do here.

 

(1) make the application for the disclosure of the signed agreement?

 

BH

[nicklea]

Hi nick,

 

This was certainly not the case if there was I would have read them this account was pre 2004, we seem to be defending shop direct are the worlds worst for opening accounts without regulated agreements.

 

Ok,

 

That may well be different. If you opened the account 7 years ago then they may well have done things differently then - I was just going on what they do now.

 

You haven't said whether you applied for this online or not.

 

If you did open the account so long ago then it may be more likely that they didn't do things in a compliant manner. Also, if this was before 2004 then then you wouldn't have been able to make a credit agreement electronically anyway as the Electronic Agreements Order hadn't come into force then.

 

As a result, I think it probably is likely - from what you have said - that they don't have an agreement. In which case, you may well be in a stong position if you do make this application.

 

It may sound as though I am changing my position - and indeed I am - but, as the mould said above, we can only go on the information that you give us and the dateof when you became a customer - assuming you did this online - is crucial in this case.

[nicklea]

Yes chris thanks now we are talking

 

I have been down the Cca route I have a letter sayings that they cannot find the agreement

I have this in writing.

 

OK,

 

You didn't tell us this before. This, combined with the age of the account does put you in a very strong position

 

 

I have also sent them a request under CPR 31 for the agreement. Again this was ignored.

 

If you are talking about disclosure before proceedings start then I would suggest that you do need to be very careful about this. There was a recent case involving this that landed the applicant with a huge costs bill after they lost. pt2537 has suggested that people do not attempt to do this any more due to the danger of adverse costs even though it was him that suggested doing this in the first place several years ago.

 

Do you think dear chris I would be better to file an application for the disclosure of the said agreement?

One this is done I will have a yes or no on whether they have the agreement?

 

Shall I send an lba the apply to the court and forget about the dpA route for now?

 

Personally, I would suggest still going the dpa route. The reason I say that is that your primary aim seems to be to get them to stop reporting adverse data to the CRAs. If this is the case then I would suggest that going the CCA route won't really help you as the Information Commisioners Office has said that just because a debt is unenforceable doesn't mean that it can't be reported by CRAs.

 

I would suggest that you want to deny ever signing an agreement giving them permission to share your data with the CRAs and I presume that you did that anyway in the section 10 notice that you sent to them.