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Taking O2 and debt collection agencies to court?


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Similar scenario here post 513

 

http://www.consumeractiongroup.co.uk...ighlight=noddy

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There is a subtle difference here. You can't get 'general damages' when you have suffered no loss. But you can get damages for damage to your credit rating - especially in a case like yours where you are having problems getting a mortgage as a result (and you should assemble evidence of the problems you are suffering).

 

In practice it is very difficult to quantify the exact amount of financial loss you have suffered as a result of damage to your credit rating. In theory you would compare the financial terms of the mortgage you get with the terms of the mortgage you would have been offered and claim the difference, but getting these figures is almost impossible in reality. This can lead to judges making an award which looks very similar to general damages, since the judge can make an award which seems vaguely appropriate even though he doesn't have precise calculations to back that up.

 

My understanding is that this is what happened in Durkin's case where 8k was awarded for damage to his credit rating which was not related to any particular item of specifically provable financial loss. The case is Scottish law, but Scottish law is pretty much the same as English law in this area so the same principles should apply. If you succeed in proving that the entries on your credit rating were unlawful then this is useful precedent as to the amount you can suggest the judge awards.

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There is a subtle difference here. You can't get 'general damages' when you have suffered no loss. But you can get damages for damage to your credit rating - especially in a case like yours where you are having problems getting a mortgage as a result (and you should assemble evidence of the problems you are suffering).

 

In practice it is very difficult to quantify the exact amount of financial loss you have suffered as a result of damage to your credit rating. In theory you would compare the financial terms of the mortgage you get with the terms of the mortgage you would have been offered and claim the difference, but getting these figures is almost impossible in reality. This can lead to judges making an award which looks very similar to general damages, since the judge can make an award which seems vaguely appropriate even though he doesn't have precise calculations to back that up.

 

My understanding is that this is what happened in Durkin's case where 8k was awarded for damage to his credit rating which was not related to any particular item of specifically provable financial loss. The case is Scottish law, but Scottish law is pretty much the same as English law in this area so the same principles should apply. If you succeed in proving that the entries on your credit rating were unlawful then this is useful precedent as to the amount you can suggest the judge awards.

 

Yes this was identited in Haliday .

 

The losses must be "real" although not necessarily identified or liquidated sums, per-say .

 

Simply it is of no use just saying, there was an incorrect marker placed therefore you must pay me damages, there must be a reasonable argument that some damage would have been incurred.

 

In Smeaton the application for damages was dismissed for instance because the debtor had other negative markers on their file which of themselves would hve had the same effect, the new markers would have had no real effect on the credit.

 

Additional thought. i would dissagree that the award in the Scottish court was any kind of "precedent", although some courts may take the award into consideration.

Edited by Dodgeball
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I agree, the important thing is for the Op to present the judge with clear evidence that he is suffering harm due to the damage to his credit rating. I am thinking of something like an email from a bank or IFA explaining why he was declined for a particular mortgage.

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"For 3 months I worked for carphone warehouse"

 

And o2 are saying these accounts were opened in a carphone warehouse store.

 

Is it possible that someone in the store you worked used your details to set up the account. I am assuming at that store that you would have had to prove ID for right to work. ID that could of been copied and used to open new accounts. The bank details could of been provided originally as yours and then changed to another account after the account was opened.

 

I'm assuming also that the store would of had your bank details to pay salary.

 

This of course is all speculation. But they would have the information, they would *if you told them* know you were about to go on tour and be in apostion where you might not notice anythign untoward immediately.

 

All the paperwork o2 side would look genuine.

Edited by SabreSheep
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Links broken Dodge.... pasted in again to see if this one works http://www.consumeractiongroup.co.uk/forum/showthread.php?321174-how-to-take-legal-action-against-hsbc

 

It was a shame that Nod wanted to press ahead to trial when a reasonable compromise was tabled, bad timing with the appeal in Halliday settling the s13 issues....... another month and it would have served him well.

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"For 3 months I worked for carphone warehouse"

 

And o2 are saying these accounts were opened in a carphone warehouse store.

 

Is it possible that someone in the store you worked used your details to set up the account. I am assuming at that store that you would have had to prove ID for right to work. ID that could of been copied and used to open new accounts. The bank details could of been provided originally as yours and then changed to another account after the account was opened.

 

I'm assuming also that the store would of had your bank details to pay salary.

 

This of course is all speculation. But they would have the information, they would *if you told them* know you were about to go on tour and be in apostion where you might not notice anythign untoward immediately.

 

All the paperwork o2 side would look genuine.

 

Umm - not possible in my case as the phones were taken out years before I worked at the shop.

 

And- more importantly, if someone did do that it would be infinitely trackable. Everything is done under your "login". So it's all trackable. Nothing can be done without having a record of who did it and when. Even down to the computer terminal that did it. So unlikely, in most cases.

 

However this is again all too confusing for me. If O2 really did believe that I took the accounts out they would have that information. They would be able to tell me to the second when I took the accounts out, they could tell me all the bank information etc... They don't seem to have that information - or be willing to let me know.

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They are right I am afraid in that there is no prospect f you being able to claim general damages in this(unless they settle) there is no precedent far any such award, with due respect to Richard his claim was in a Scottish court and it was not an award of the court anyway, it was an uncontested claim, the decision has been mentioned in several lower court claims on this forum alone and in each case discounted as being irrelevant(again with all due respect).

 

You need to quantify actual damages, or at least state how damages would have been incurred, perhaps you had a clear record other than these entrees or some other factor.

 

See Haliday and Smeaton Vs equafax for more relevant case law.

The DPA does not allow any claim for general damages.

 

Not really relavent to me. Before this I never had a single default or even late payment marker. Now the defaults are removed I am in the same position. So I haven't already got a really awful credit rating, and there actions caused me to have one for over 3 years.

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OK well it was just speculation :p

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OK well it was just speculation :p

 

Good idea though.

 

I've come to this conclusion.

 

1) Either there is something they don't want me to see (which in reality is probably unlikely, as the simplest way to make me go away and forget about it will cost them nothing in their money terms).

 

2) They have seen these threads online, and am not going to let me win, as they worry it would open up the floodgates, and encourage others to sue for similar breaches (most likely, so if you looking O2 or slimy lawyer HI :) )

 

3) They honestly believe I took out the accounts and are making an example of me. I can't see this as being true - as I've provided enough evidence to both Lowells and Cabot for them to think the accounts are not mine. So in reality I'm plumping for 2.

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Not really relavent to me. Before this I never had a single default or even late payment marker. Now the defaults are removed I am in the same position. So I haven't already got a really awful credit rating, and there actions caused me to have one for over 3 years.

 

Then I would say it was extremely relevant, as the marker would have had a greater impact on your ability to gain credit and your damages easier to demonstrate.

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Links broken Dodge.... pasted in again to see if this one works http://www.consumeractiongroup.co.uk/forum/showthread.php?321174-how-to-take-legal-action-against-hsbc

 

It was a shame that Nod wanted to press ahead to trial when a reasonable compromise was tabled, bad timing with the appeal in Halliday settling the s13 issues....... another month and it would have served him well.

 

Dont think it would have made a difference Mike, the decision was the earlier case , and the SC did not intervenes one way or the other, they couldn't.

 

I suppose it could be argued that because the SC did not actively disallowed it added credibility to the claim.

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Good idea though.

 

I've come to this conclusion.

 

1) Either there is something they don't want me to see (which in reality is probably unlikely, as the simplest way to make me go away and forget about it will cost them nothing in their money terms).

 

2) They have seen these threads online, and am not going to let me win, as they worry it would open up the floodgates, and encourage others to sue for similar breaches (most likely, so if you looking O2 or slimy lawyer HI :) )

 

3) They honestly believe I took out the accounts and are making an example of me. I can't see this as being true - as I've provided enough evidence to both Lowells and Cabot for them to think the accounts are not mine. So in reality I'm plumping for 2.

 

Option 2 is unlikely.

 

3 is probably realistic.

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That would be my guess too.......... it's staff don't take ownership of problems and are woefully lacking in their ability to investigate with any degree of accuracy. I had an issue with it earlier this year and was utterly dumbfounded by its initial response.

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So you need to respond to the defense and try and amend your pleadings in order to show the damages issue ?

 

Perhaps Mike or one of the others who know about the court stuff may be able to assist there ?

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I'd agree with pretty much everything that's been identified so far. The OP needs to evidence damage whether pecuniary or not to overcome the hurdle of s13(1), there doesn't appear to be a definitive answer [or precedent case] as to the courts view of damage vs cost... it's certainly touched on in Halliday but with CCF conceding the point it's a bit disappointing there's still a question mark surrounding the issue.

 

Without sight of the OP's particulars he may be best placed to leave the vaguety of his case to be explored later in proceedings. He may have included ample references to DPA breach, damage, distress etc that the court will be satisfied with the direction its heading in and allow technical arguments to follow which can be sourced from within the context of the claim.

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I'd agree with pretty much everything that's been identified so far. The OP needs to evidence damage whether pecuniary or not to overcome the hurdle of s13(1), there doesn't appear to be a definitive answer [or precedent case] as to the courts view of damage vs cost... it's certainly touched on in Halliday but with CCF conceding the point it's a bit disappointing there's still a question mark surrounding the issue.

 

Without sight of the OP's particulars he may be best placed to leave the vaguety of his case to be explored later in proceedings. He may have included ample references to DPA breach, damage, distress etc that the court will be satisfied with the direction its heading in and allow technical arguments to follow which can be sourced from within the context of the claim.

 

So for future cases of this nature, is it better just to say "damages to be assessed by the court " and quote Durkin as a guider rather than stating any specific amount ?

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So for future cases of this nature, is it better just to say "damages to be assessed by the court " and quote Durkin as a guider rather than stating any specific amount ?

 

Yes. General Damages. Ditch all references to the DPA.

 

Richard.

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I don't think you can"ditch" the legislation Richard, the remedies are contained within it, although a common law tort can exist codependently, the court will normally use the statute if it is available.

 

Haliday again both cases.

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I think it will be difficult [not impossible] to substantiate and evidence a monetary loss in the vast majority of cases which rely on s13. The court seems to view the physical cost of time and resources in pre litigation as just that [costs] as opposed to damage. I'm far from being an expert in the matter but I would imagine this would leave the bulk of claims seeking nominal damage for lost chance which may not necessarily have a fixed value.

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I think it will be difficult [not impossible] to substantiate and evidence a monetary loss in the vast majority of cases which rely on s13. The court seems to view the physical cost of time and resources in pre litigation as just that [costs] as opposed to damage. I'm far from being an expert in the matter but I would imagine this would leave the bulk of claims seeking nominal damage for lost chance which may not necessarily have a fixed value.

 

Yes I agree, each on its own merits, general damages in a vague sense rather than the literal one, really only general because there is no specified sum which can be quoted but nevertheless provable.

 

Not an award for just placing a default marker incorrectly unfortunately, although there was some mention in the SC regarding the delay in removing a proven incorrect marker, so perhaps this would have an effect on damages awarded, maybe this would be enabled by section 13(1) and come under distress(2)

?

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I don't think you can"ditch" the legislation RIco, the remedies are contained within it, although a common law tort can exist codependently, the court will normally use the statute if it is available.

 

Haliday again both cases.

 

I meant desist from referring to it, of course. It's too complicated, as has been proven. Durkin managed adequately and relatively simply without it. Post 53 is helpful.

 

Cheers,

 

Richard.

Edited by Durkin
Grammar, spelling.
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I meant desist from referring to it, of course. It's too complicated, as has been proven. Durkin managed adequately and relatively simply without it. Post 53 is helpful.

 

Cheers,

 

Richard.

 

Indeed and concurs with what we have been saying.

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