Can 2 agreements, one compromising the other, co exist?

[Mike_hawk]

I have in place what I believe to be a fairly watertight Tomlin. Not (in the grand scheme of things) of great value.

 

Without going into the exact details I sued for PPI, CPP, DPA & CCA non compliance plus a few charges which it settled prior to prelim.....pretty much everything I could think of after it rattled my cage.

 

My issue is that it seems intent on publishing the originating agreement with a non existing balance which has been compromised by the order. In effect I reversed a £2k debit balance to a positive balance of £7k....yet it has recently published the originating account details with debit balance and seemingly duplicated the account, passing the original 2k to a dca? From its records (and as settled) it reduced the balance to £00.00 prior to issuing a cheque for £7k, ergo 9k in total per compromise.

 

It is on notice that it has a few days remaining to retract the publication and comply with the confidential terms prior to enforcing of the schedule.... Oh and, it still hasn't settled my costs, also contained within the order at circa £900.00

 

Am I correct in thinking its up s##t creek without a paddle if I have to weigh out another £150.00 to enforce the order? Is there any wriggle room for creating duplicate accounts?

[The Mould]

The new agreement supersedes the original agreement, and that original agreement and all subsequent terms and conditions thereof are extinguished for all time to come, including any rights thereunder of the 1st party to process and or disclose your personal information.

Kind regards

The Mould

[Mike_hawk]

Sorry mate, been away for a couple of days... appreciate your comment

 

Now... any case precedent for CCA regulated agreements compromised by Tomlin with confidentiallity terms?

 

It seems I will have to throw good money at bringing the terms into effect on Monday as it still hasn't settled costs or ceased processing data to a 3rd party.

[The Mould]

Well I am not aware of any precedent in that respect at this time, however, you do not need one to rely on.

Simply rely on the rules and principles of contract law, the Tomlin is a contract to which all parties’ conscience is bound and upon its conclusion, the original contract, the credit agreement, was extinguished.

Kind regards

The Mould

[Mike_hawk]

I think I'm pretty much sorted with this for filing but with one question.....imagine (if you will) a term specifically excluding the disclosure/inspection of data to the FCA absent the other sides consent or permission of the court. I'm not aware of a procedure for requesting permission, nor am I entirely confident one exists, but not being the author of the term I'm not exactly sure what it hoped to achieve. Would it be correct to seek relief to an order which puts me under notice to specifically perform to that effect?

[The Mould]

What, an order from the Court that you provide your consent to the other party to disclose info?

If there is a term in the contract that expressly provides that disclosure of material, whether personal data or not, is prohibited without the consent of all parties thereto, then, no, such an order of the court cannot be obtained because strangers to a contract cannot interfere with that contract and have no rights recognised in law to do so, the court in such a case would be that stranger.

Kind regards

The Mould

[Mike_hawk]

Nope, in essence.. the data which I have in my possession cannot be released to the FCA for inspection without the other sides consent or permission of the court.

 

The other side (for obvious reasons) will not consent. Ergo, do I request (counter intuitively I might add) an order which compels me to disclose to the FCA?

 

I am applying to lift stay and seeking relief to an order compelling it to settle my costs and a few other matters which cannot be openly discussed. Given the fee it would seem sensible to apply for relief in all matters arising from its breach of agreed terms.

[The Mould]

If the breach by the other party is a fundamental breach, then the contract to which you and he entered, the Tomlin and the terms, is broken by him and at an end and therefore the non-disclosure clause and all other clauses are no longer extant so you can disclose the material to the FCA.

How serious is his breach?

Kind regards

The Mould

[Mike_hawk]

Barring the costs issue the remainder of its breaches are those attached to confidentiallity clauses, whereby it was settled that it would not publish or share data relating to any issues settled or arising from the case or contained within any correspondence, witness statements, particulars, information stored prior to the case or thereafter etc etc.

 

1 month ago (2 months post settlement) it caused to be published via all 3 CRA's the details of the originating agreement after service of the order which reflects a now none existing debit balance of circa 2k ... it also passed data (including system notes detailing proceedings) to a 3rd party DCA. Neither have as yet been retracted.

 

There are a couple of minor niggles but these are primarily construction and intent of terms within the agreement which I have no difficulty in asking the DJ to decide on and settle.

[The Mould]

Well that is a fundamental breach of those confidentiality clauses and as it has abandoned the same, you are entitled to abandon the same and are no longer bound to any of those clauses. That is the law of contracts.

 

 

Kind regards

 

 

The Mould

[Mike_hawk]

Hmmmm.......... never too keen on telling a DJ that 2 wrongs make a right!

 

Any recent case authority on Tournier principles?