Has any Credit Reference Agency been showing negligent/wrong information about you?

[Benbane_Head]

I have come across this recent case Smeaton v Equifax, accessible for free on bailii. It has been decided that where a credit reference agency has not been complying with their continuing obligation of retaining accurate data, they will be in breach of the Data Protection Act, Section 13.

 

Furthermore, if they have been negligently, by positive acts or omissions, showing wrong information about a data subject, the CRA's would be negligent and can be sued in negligence to reclaim any losses the data subject may have suffered.

 

The CRA's have lost it to a litigant in person, and have now appealed it in the Court of Appeal, but it goes to show that if there are people who have suffered because of these people, you may be able to sue them. One point to note is about limitation.

 

Cheers!!

 

**Any information given here is not to be considered legal advice and should not be relied upon. Benbane Head does not accept any liability to the recipient or any third party for any loss suffered as a result of reliance on the information provided herein.**

[andydd]

I agree, the basic points behind this are well know, if somone does something that causes someone else a loss, then that loss can be recovered in law (damages), this is no diferent to for example, the way RLP operate, but of course it does get more complex, i.e the individual has to prove the loss and maybe the actual amount.

 

Andy

[Benbane_Head]

Agreed... Although not many people think about the fact that the CRA's can be sued in negligence too. This is the first of its kind in England & Wales, although one other case in Canada. On another note, Section 13 of DPA can be freely used against others too. Again, it has only been used on 2 other occasions, so it would be nice to see it being used more!!

[username44]

I was trying to link a post concerning this but can't as I haven't posted enough yet.

[username44]

I was just updating a post http://www.consumeractiongroup.co.uk/forum/showthread.php?353792-What-if-anything-are-Experian-admitting-here so this couldn't have been placed at a better time : )

I'm going to find the Smeaton case now but in the mean time if any of you had any thoughts on the linked post I would really appreciate it.

[Benbane_Head]

you can after you have done 10 posts:), which I see you now have!!

[andydd]

Read (most) of the case, fascinating stuff .

 

It is quite clear that untill about 2008, the Bankruptcy data held by Equifax may of been inaccurate and in turn may of contributed to customers being turned down for loans, mortgages, etc.

 

Good to see a Litigant in Person (especially someone who has had as many ups n downs as Mr Smeatton win a case against a big company with full legal representation.

 

Andy

[username44]

Really good to see Mr Smeaton win this case. I obviously don't read as quickly as you do but will get through it tonight just in case there is anything of use to me.

 

Seeing as I can now I will. http://www.bailii.org/ew/cases/EWHC/QB/2012/2088.html

 

After only a quick skim am I right in thinking that the CRA's should automatically acknowledge discharge after a year for any bankruptcy after 2004? If this is the case then the CRA's are in trouble. My own BR was finished in 2009 but I have only now got them to change the status from bankrupt to discharged. Literally last week.

[Benbane_Head]

It is good stuff... and there is potential to kick some ass before claims become statute barred . Although we have to be mindful of the appeal which is under process!! I am keeping an eye on the developments and will keep everyone posted...

[DBY]

So let me get this straight - if a CRA is knowingly reporting inaccurate data they are liable. When I talk about inaccurate data i'm referring to those instances where they know its against regulation or guidance, such as the ICO's Data Protection technical guidance notes on filing defaults, for example.

[andydd]

Really good to see Mr Smeaton win this case. I obviously don't read as quickly as you do but will get through it tonight just in case there is anything of use to me.

 

Seeing as I can now I will. http://www.bailii.org/ew/cases/EWHC/QB/2012/2088.html

 

After only a quick skim am I right in thinking that the CRA's should automatically acknowledge discharge after a year for any bankruptcy after 2004? If this is the case then the CRA's are in trouble. My own BR was finished in 2009 but I have only now got them to change the status from bankrupt to discharged. Literally last week.

 

I think the important year is 2008.

 

 

IIR as a source of credit data. Neither the RBO nor the IIR was a direct source of bankruptcy data for Equifax until 2008 when, for the first time, the IS introduced for CRAs a facility enabling the entire contents of the IIR to be transferred electronically from the IIR to each CRA on a daily basis. Until that change occurred, there appeared to be no practical way that the IIR could be used by a CRA to obtain details of bankruptcy orders that were removed from the IIR because they had been discharged, annulled or rescinded. This change has transformed Equifax's collection of bankruptcy data since Equifax now receives electronically from the IS on a daily basis a complete copy of the IIR and is able to compare electronically that copy with the previous working day's copy and, thereby, obtain a list of the additions and removals from the IIR on a daily basis. Having obtained that data, Equifax can and does immediately electronically amend the credit files of anyone whose data has been subject to an addition or removal from the IIR. The IRs in their present form following amendments in 2010 provide that the OR has a duty to remove entries from the IIR following an annulment or rescission order as soon as the IS is provided with a copy of the relevant court order which each court must provide to the IS as soon as it is made[35]. The effect of this change was clearly stated by Mr Milner in his closing written submissions to be as follows:

 

[username44]

I was automatically discharged in 2009. None of the CRA's had the discharge details recorded. I am in NI and we show on the Belfast Gazette so perhaps they don't update from here? They must do though, as they all reported the bankruptcy when it happened in 2008 without my informing them.

I had to send all of them confirmation of discharge and the last one Call Credit only removed the BR last week. Experian & Equifax were earlier in the year. Weird.

[Benbane_Head]

The main problem Equifax faced in this case was this: They took bankruptcy data from the London Gazette (for profit, in the course of business) and was reporting Mr. Smeaton as a Bankrupt. Soon after they took the Bankruptcy data, the Bankruptcy was, by consent of both parties (i.e. Mr. Smeaton and the claimant in that case), rescinded - which means it was void ab-initio - as if it never happened. Because Equifax failed to act or do anything to correct this and Mr. Smeaton not even aware of this, kept being declined for personal and business credit till he found out in 2006. Back in 2001/2002, there was no onus on the Official Receiver to publish the rescission in the London Gazette, because there was nothing to report - the bankruptcy was void ab-initio.

 

Since 2008, the system has all been electronic and the OR's electronic files are fed directly onto Equifax's computers and everything is automatically updated, or so Equifax claims.

 

Username44, it would even be worse if they picked your bankruptcy from Belfast Gazette and then failed to pick up or update the discharge. The main point here is that they supply data and information to the financial industry as part of their business and for profit. If they keep showing you bankrupt when you are not, they should also be liable for the loss that they cuase you!

[username44]

I have just posted SAR's off to Equifax and Experian for exactly that reason Benbane Head!

 

I am fairly sure (99.9%) thats what happened. Picked it up on BR but not on discharge. I won't do or say anything more until I get proof from the CRA's. Noodle (Call credit I have). I'll just wait for Ex & Eq to arrive. So much else to sort out that the 40 days will fly in.

 

Is there a date for the appeal? Or is that not the way it works? I really hope he wins. The whole episode must have been horrific for him. And it would be so good to see the CRA's power diminished publicly even if only slightly.

 

Any other cases involving the CRA's that you know about?

[Benbane_Head]

I don't know of any other cases and I assume neither did Equifax's Counsel (or at least not favouring them). As HHJ Thornton said "Mr Smeaton's claim raises novel issues under section 13 of the DPA 1998. He brings his claim additionally as a claim for damages for negligence and this claim too raises novel issues."

 

Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28, [2007] 1 A.C. 181 worth checking out but I haven't had a look at it.

 

All I can see is Appeal Outstanding - so this should be viewed with caution.