Richard Durkin appeal/supreme court

[postggj]

I have just read a thread which i can only contemplate as a travesty of natural justice

 

Does anybody know if Richard Durkin has had his appeal in the Supreme Court, and if not, when the appeal is being heard. This matter really does need case law to decide the issue of unlawful defaults

 

It is all to do with this case that was heard in Scotland

 

RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

[steampowered]

You posted the original judgment which went in favour of Mr. Durkin. This was overturned in favour of the respondents on appeal - see http://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotCS/2010/2010CSIH49.htm

 

It does not appear to have been appealed further.

 

A fairly stark judgment and a reminder that s75 CCA does not provide as much protection to consumers as most people assume. I guess it is best to avoid buying things on credit, and if needed best to use a 0% credit card rather than trade finance.

[postggj]

Durkin was in relation to an unlawful default on his credit file and damage to his credit reputation. He was awarded 8 k

 

This again has been appealed to the supreme court as this case was originally decided in the Scottish jurisdiction

[unclebulgaria67]

Supreme court hearing on 28th Jan 2014, according to Richard Durkins twitter feed.

[postggj]

We might now get a final decision on this, judges in the lower courts have been holding back and playing safe until this has been decided

 

Thanks Unclebularia

 

Fingers crossed for Richard for taking on the establishment and getting it to the highest court in the land

 

Not bad for a Commoner

Edited June 18, 2013 by postggj

[Peterbard]

It is an interesting case, and one that has sparked many claims for "general damages " following a misplaced credit marker. Mostly it has to be said with mixed resluts.

There are subsequent case that should be read for anyone interested in this area and in particular Smeaton vs equafax

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/108.html.

 

There are a couple of issues at stake here as I see it, one is the issue of the application of general damages , and the other is the existence of the cause of action.

 

The later being the section 75 claim, in a nutshell the claim was that when the purchase of a computer was terminated this should have been linked to the credit agreement under the requirements of section 75, and so the agreement also should have been cancelled.

 

The appeal judge found that this was not the way that section 75 worked, in that the credit agreement was not related to the purchase within the meaning of the section and section 12b.

 

The other issue is one of the liability for general damages, this aspect of the case was not the subject of appeal, which is good in one respect but in another it muddies the water as to its application in English law(this was a Scottish judgment).

 

It will be interesting to see what the supreme court makes of this and if the concept is endorsed. If successful this will strengthen the claim of anyone who wishes to make a claim as they will not have to prove specific damage.

Edited June 18, 2013 by Dodgeball

[postggj]

QUOTE

If successful this will strengthen the claim of anyone who wishes to make a claim as they will not have to prove specific damage

 

Kpohraror v Woolwich Building Society [1996] 4 AER 119

 

The above case proved that loss to credit reputation and general damages can be awarded with no specific loss

 

The fact damage to credit reputation was enough to award general damages

[Peterbard]

QUOTE

If successful this will strengthen the claim of anyone who wishes to make a claim as they will not have to prove specific damage

 

Kpohraror v Woolwich Building Society [1996] 4 AER 119

 

The above case proved that loss to credit reputation and general damages can be awarded with no specific loss

 

The fact damage to credit reputation was enough to award general damages

 

Yes this has been used in several cases including Durkin I think. the problem with this is that although this is said to be general loss, it is nevertheless provable, in that the loss to reputation would have had a definite if not quantifiable effect on the claimant.

 

This is a different prospect to someone who just says , I have a misplaced marker therefore you ow me xxxx. As many have found out to their cost.

Edited June 18, 2013 by Dodgeball

[postggj]

But the very act of placing a default credit marker with the credit agencies is in its self will show financial instability to any future creditor. This all seems to be about quantifying any loss suffered, not damage to indirect credit reputation

 

I contend that the very fact of placing a negative marker, even in error is defamatory to a persons good name and needs redress

 

When this is heard in the supreme court, all these anomalies will be ironed out and a decision given that all creditors and borrowers will have to abide with as it will finally give clarity

[Peterbard]

But the very act of placing a default credit marker with the credit agencies is in its self will show financial instability to any future creditor. This all seems to be about quantifying any loss suffered, not damage to indirect credit reputation

 

I contend that the very fact of placing a negative marker, even in error is defamatory to a persons good name and needs redress

 

When this is heard in the supreme court, all these anomalies will be ironed out and a decision given that all creditors and borrowers will have to abide with as it will finally give clarity

 

No sadly not, there are two avenues of redress one is the legislation(DPA), this states that any action must be based on actual damages or proven "psychological distress" it also stated that the credit controller cannot be responsible for placing incorrect data if it has been done in good faith, and on the information available at the time.

 

The second is via civil tort, this action would have to pass the three part test, and the damages would have to be demonstrated, or they would be classed as a penalties and not enforceable.

 

There is further case law on this that I cannot quite bring to mind but i will find it, unless someone beats me to it.

[postggj]

Under the DPA organisations are generally required to ensure that personal data they store is "accurate and, where necessary, kept up to date, such as the credit reference agencies

 

Credit agencies have no co-extensive common law duty of care to ensure individuals' credit data is accurate as they rely on third party accuracy

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/108.html

 

The Court of Appeal has allowed the appeal in Smeaton v Equifax, to cries of relief from credit reference agencies and many other handlers of complex data

 

http://www.scl.org/site.aspx?i=ne30799

Edited June 18, 2013 by postggj

[Peterbard]

Yes they are responsible, whatever that means in real terms is debatable, their is scope for a common law action a said and there is no reason why a breach of an act cannot be used as a cause of action is such a case. However the test for proximity would be an issue as you mention.

[postggj]

However the test for proximity would be an issue as you mention.

We are inn agreement

[steampowered]

On reading the appeal judgment, the appeal was decided on the basis that the sale transaction (buying a laptop) and the credit transaction (finance for the laptop) were not linked. Although Mr. Durkin validly terminated his sale contract with PC world by returning the laptop, this was not enough to rescind the finance contract. Accordingly, there was a default under the finance contract. Therefore, there was no wrongful entry on Mr. Durkin's credit report.

 

There was some discussion of the level damages award made to Mr. Durkin. The assessment of 8k general damages for loss of credit rating actually remained intact. This issue was not considered by the appeal court since the finance company did not contest it - see paragraph 77 of the appeal judgment.

 

The 8k only fell away because there was no wrongful default in the first place. No doubt the Defendant was more interested in the 100k+ Mr. Durkin was awarded for loss of profit on a speculative Spanish property investment he wanted to me. For this reason I guess the original judgment is still good law for people wanting to bring a claim for wrongful default entries.

 

It will be interesting to see what the Supreme Court says. But I doubt it will be much help. What we really want is the court to say what you can recover for wrongful default entries, but if this is just a case about whether there was a wrongful default entry on a particular set of facts that is not much help. The Defendant did not contest the 8k award on first appeal so difficult to see how they could contest it in the Supreme Court.

Edited June 18, 2013 by steampowered

[postggj]

That is why the appeal to the supreme court is so important

 

It will end speculation once and for all, that is for the creditor, and borrower alike

[Peterbard]

This is the case I was trying to remember and contains a lot of related information, and resulted in a moderate successful claim on appeal.

The former case of which this is the appeal also is very informative although I do not seem to be able to lay my hands on it ATM.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/333.html

[Peterbard]

The Defendant did not contest the 8k award on first appeal so difficult to see how they could contest it in the Supreme Court.

 

True but the hope is that it is endorsed, this has been raised a few times as authority in various cases and been dismissed as being"Scottish Law", and not creating precedent south of the border.

[steampowered]

True but the hope is that it is endorsed, this has been raised a few times as authority in various cases and been dismissed as being"Scottish Law", and not creating precedent south of the border.

 

Indeed. We shall have to wait and see.

 

If the Supreme Court upholds the appeal court's finding that the sale transaction and credit agreement were not linked, thus Mr. Durkin was in default, then the court is unlikely to express an opinion on what damages can be recovered for wrongful default entries. However the Supreme Court will have to consider this issue of damages if it finds that the transactions were linked.

[Peterbard]

Indeed. We shall have to wait and see.

 

If the Supreme Court upholds the appeal court's finding that the sale transaction and credit agreement were not linked, thus Mr. Durkin was in default, then the court is unlikely to express an opinion on what damages can be recovered for wrongful default entries. However the Supreme Court will have to consider this issue of damages if it finds that the transactions were linked.

 

I was under the impression that there was permission to introduce the argument of improper execution, under section 56, this was hinted at in the previous judgment and in my opinion stands a greater chance of success than the section 75 argument.

[steampowered]

I was under the impression that there was permission to introduce the argument of improper execution, under section 56, this was hinted at in the previous judgment and in my opinion stands a greater chance of success than the section 75 argument.

 

From a brief search through the judgments, it seems this argument was not really covered by the appeal court and was given only fleeting treatment by the Sheriff:

 

"Section 56 does not appear to have been cited in the argument before Sheriff Principal Reid, and indeed it was not cited in the argument before me ... It may very well be that the pursuer's claim could have been brought on the basis of Section 56 without reference to Section 75 at all. That does not, however, preclude a claim being brought in terms of Section 75 (1)."

 

It looks like Mr. Durkin did not raise Section 56 in his claim ... it is unlikely the Supreme Court would allow him to introduce a new argument on appeal I think.

[Peterbard]

From a brief search through the judgments, it seems this argument was not really covered by the appeal court and was given only fleeting treatment by the Sheriff:

 

"Section 56 does not appear to have been cited in the argument before Sheriff Principal Reid, and indeed it was not cited in the argument before me ... It may very well be that the pursuer's claim could have been brought on the basis of Section 56 without reference to Section 75 at all. That does not, however, preclude a claim being brought in terms of Section 75 (1)."

 

It looks like Mr. Durkin did not raise Section 56 in his claim ... it is unlikely the Supreme Court would allow him to introduce a new argument on appeal I think.

 

I think I read somewhere that this has been agreed. Durkin posts on here perhaps he will comment.

[Durkin]

Good spot by the OP. A travesty.

 

We'll find out next year whether the Supreme Court will interpret the law in favour of justice or in defence of the criminal bankers.

 

It's expected that it will side with justice and that in turn would be a great platform to start jailing the criminals.

 

£8K for general damages, based on English Law, has effectively been ratified in Edinburgh but some inferior English judges are still siding with the banks by refusing to acknowledge any force in the reasoning because of the Scottish connection.

 

Both HFC and PC World operate in the rest of the UK and have been annihilating lifestyles, including the English, unhindered, for at least a generation.

 

Richard

[Durkin]

loss of profit on a speculative Spanish property investment

 

I'm just trying to set up a family home.

 

The bank have maliciously prevented me from doing so for the past 10 years now.

I've never been crying about lost profit or envisaged a family home as an investment.

 

Meanwhile, as the bank continues to refuse reparation, I'm unable to make proper investments for my family's future. Sickening.

 

Richard.

[postggj]

Afternoon Richard

 

Thanks for commenting

 

This uncertainty really needs to end, one way or another, but the question that needs asking is:

 

Why it has taken a commoner to go to the highest court in the land to raise this issue?

 

LET US HAVE JUSTICE

[Alphageek]

The Supreme Court ruled in favour of Richard. More details coming soon.