Barclays breach the GDPR ??

[Peterbard]

Sorry about the spell, on my mobile

.

[paulwlton]

Peter

 

I think the more we can throw at Barclays the better. 

 

The legal opinion on merits of the case will be interesting.

 

Paul

[Peterbard]

On 14/02/2021 at 11:57, paulwlton said:

Para 38 Grace.
 

38. As for the second submission, I have not been persuaded that the shortcomings in the CRAs’ registration systems can excuse a registration which is in substance inaccurate because of an omission (namely that the ‘default’ related to an unenforceable agreement).  If an accurate registration cannot be accommodated, then the answer is for the industry to change its registration systems, and in the meantime for inaccurate registrations not to be made.   

 

My bold.

Yes here he is referring to a record of the unenforceability of the account, not the issuance of the default "D". 

 

He thought that it was unfair to just register D, when the debt was unenforceable, and that additional information should be recorded to reflect the fact that there was no imperative for the debtor to pay.

"Accurate information cannot be accommodated"

The way default data has not been altered to my knowledge, so the suggestion was ignored by the GDPR.

 

But nothing was said about recording the default itself.

 

Unfortunately Grace was unable to sue because the cause of action itself was SB(that is the placing of the D on the account by the creditor), and he would have had to prove the creditor new of the offence in order to extend the period under section 32 SOL hiding information.

[paulwlton]

In my opinion. If the status of 6 missed payments is excepted, then the credit file should have made reference to the fact that the account was unenforceable. If the credit file wasn't able to show this, then the status of 6 should not have continued to be recorded.  

 

 

 

Edited February 15, 2021 by paulwlton

[Peterbard]

Hi Paul, I think this is confusing the issue TBH.

Yes the file should have been degaulted, but the 6 ls a legitimate entry, which the Cra can place

in grace the issue was about additional information, as well as the d, which indicates that not only the D(the fact the debt was defaulted) but the fact that the account is unenforcable.

The CRA are still unable to record this extra informstion.  

[Peterbard]

The fact the report should record the correct marker is covered by basic dpa principles. You can use case law if you like, but really it is superfluous. 

[paulwlton]

Hi take your point about confusing the issue, but think

it could apply if they argue that there is no requirement to file a default. 
 

Barclays have offered £150 for distress and inconvenience. I’ll post the letter when it arrives. 

 

Edited February 15, 2021 by paulwlton

[paulwlton]

Peter,

 

Is 6 a legitimate entry for a overdraft?

Edited February 15, 2021 by paulwlton
Spelling

[paulwlton]

When status 6 would apply.
 

Status 4-6 or 4-6 & BB - Possible Triggers
• If, when status 3 has been set, the customer is showing no realistic attempt to repay the overdraft then, a Status 8 should normally be set.
• Status 4-6 will normally only be needed if the customer has made a repayment proposal and is making a realistic effort to repay the overdraft, but the overdraft is more than 3 months beyond its repayment date.
 

[dx100uk]

as far as i remember for that period (when the file might have actually hit 6 meaning 6 mts of unsatisfactory payments) CRA's automictically entered a defaulted date themselves.

 

useless but poss relevant 

[paulwlton]

Barclays response.

 

 

Barclays reply.pdf

[Peterbard]

On 15/02/2021 at 22:46, paulwlton said:

Peter,

 

Is 6 a legitimate entry for a overdraft?

No but it isn't additional either. As said, the fact that you cannot make missed payment markers on an OD is a good argument, nothing to do with sparkies case though

[Peterbard]

I think you said it Paul. The D should have only been registered after the debt was recalled. As far as the CRA is concerned, that is when the arrangement "broke down".

 

Edited February 17, 2021 by Peterbard
bloody spell checker

[Peterbard]

  Here is the result of a query made to the ICO in 2015.

 

The ICO has considered the circumstances in which the credit reference agencies should be permitted to record details of unenforceable credit agreements. In doing so we have had particular regard not only to the clear legislative intent that the absence of a signature on a credit agreement should no longer be an absolute bar to enforcement, but also to the following factors;

1) The question of whether a legal liability exists in relation to a credit agreement is quite separate from the question of whether such a liability may be enforced by the creditor.

2) Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, including information about whether the amount due has been repaid. Such information may properly inform responsible lending decisions, regardless of whether the liability is enforceable.

3) Responsible lending decisions are dependent upon lenders receiving accurate information about individuals ability (and/or inclination) to repay their debts.

Where a credit agreement clearly existed and credit has been provided to the debtor but the debtor is not obliged to repay the loan due to the provisions of the Consumer Credit Acts, this does not mean that there was no agreement in the first place. It simply means that there was no enforceable regulated agreement.

It follows that where the existence of the agreement is not in doubt we consider it to be appropriate for information about the agreement, including any failure by the debtor to repay his or her debt to be recorded with the credit reference agencies. Where a 'debtor' disputes the existence of any credit agreement, enforceable or other wise we would ask to see evidence of the agreement and its terms. This might include evidence of the provision of the credit facility or of a history of payments made by the debtor.

[paulwlton]

But the COA said that a CRA file should show that the account

is  unenforceable.

[Peterbard]

Paul.

I understand what you say, but this was a large judgement and 90% of the claim was thrown out, this issue was referred back to Sparkie and Black horse for out of court negotiations or for another court to decide if sanctions were appropriate.

 

As said everything i have read both before and since agrees with the ICO quote above.

Have their been ANY successful claims using the "precedent " since. it was 2014 after all. 

 

There was no costs awarded, no sanctions, and the claim was not picked up in the later GDPR.

 

Look if you want to leave it in then do so, I dont think it will harm your case, it is just a distraction. I was asked for my opinion, that's it.

Edited February 17, 2021 by Peterbard

[paulwlton]

Peter,

 

I agree that Grace is not really required as the data is probably incorrect in any event, contrary to data laws. Nevertheless,  I’ve instructed the expert to consider it, so it will be interesting to see if it assists.

 

 

Edited February 18, 2021 by paulwlton

[Peterbard]

Depends on the expert. 

[paulwlton]

Opinion should be with me by Thursday.

 

The expert has been involved in COA cases concerning matters I've raised.

[Peterbard]

Paul.

The word expert is very subjective, we have seen a few "experts" on here. There are some on the team.

 

[paulwlton]

Someone that specialises on the subject might be a better way to put it. 

[Peterbard]

That would be me.

 

Any signs of the response yet?

[paulwlton]

Should receive it in the next few days.

 

Looking forward to your comments on the opinion.

 

Regards

Edited February 28, 2021 by paulwlton

[paulwlton]

The legal opinion gives the green light to claim damages under breaches of the DPA 1998 and/or negligence as per Durkin.

 

 

Edited March 7, 2021 by paulwlton

[Peterbard]

I hope this wasn't your last word on this Paul, because there is Zero chance on either of the above.

 

As far as I can see there have been no breaches of the DPA, and there was no such Judgement in Durkin. The English court could not make one, and damages were thrown out, unless you mean the derisory damages awarded by the Scottish Court. Good luck anyway.