Bought a Clocked & damaged Car

[BankFodder]

By the way, you might imagine that with all the GDPR revolution of the last couple years and the big push on new standards and new transparency et cetera that all the companies would be on top of it and squeaky clean.

In fact the view that I've taken is that the GDPR initiative has backfired because it has produced such a deluge of complaints to the ICO that they aren't able to handle it any more. This means that it takes ages – maybe three months even to get a reference number and longer to get your complaint dealt with. I have a sense that they are prioritising them and not dealing with them all and sending you back  again and again to the data processor to get a solution there – and if you get a solution, then the ICO don't seem to be very interested in at least admonishing the processor for a statutory breach.

The ICO is under resourced and didn't receive the basics that it needed in order to deal with the new GDPR regime. The companies supplied huge funds to it all – and I think they now realise that it hasn't made a huge amount of difference – and in fact that life has become easier for them because an overworked ICO is less likely to apply sanctions.

At the end of the day, the victim of it all is the data subject – you, and me, and one man and their dog

[sallyblackburn]

What you said above got me thinking.

 

Looking around it seems Creation have form for messing people around.

 

One of the leading DPA 1998 cases on damages is in fact https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2013/333.html&query=(CREATION)+AND+(CONSUMER)+AND+(FINANCE)+AND+(LIMITED)

 

 

At paragraph 47, the Court of appeal have this to say:

 

1. I confess that I was somewhat impressed at one point by Mr Capon's submission that it was a surprise, if Mr Halliday was so distressed by this contravention, that he did not immediately protest upon discovering, in response to his first credit reference enquiry, the fact of the contravention, and indeed he did not protest until about a month after the second report had been obtained. But I bear in mind, in response to that, Mr Halliday's comment that he had had such difficulty in getting any sensible response, or indeed any response, out of CCF at the earlier stage, that it is perhaps less surprising that he did not immediately protest. In any event, the period in question is not a very lengthy one between his discovery of the contravention by his first reference request and his taking action in July. Accordingly, it does not seem to me that that is a matter that should be taken to reduce my assessment of the degree of distress that he suffered.

 

It seems that messing people around is something they have done before and have been picked up on before. 

 

333.docx

[BankFodder]

Well spotted

[BankFodder]

They haven't yet filed a defence and so you haven't yet had a directions questionnaire.

I suggest that you send them a letter of claim giving them 14 days or you will take legal action. All that does is reserve your position. You don't need to go ahead with it. But on the other hand, although it's not the way to do it, when you get the directions questionnaire – assuming that they defend your claim – then you might like to inform the judge that you wish to amend your claim to include a claim for compensation for breach of statutory duty because of their non-compliance with the DPA rules.

It wouldn't be very much. I would suggest simply £50 for distress – and that will do it. The important thing is to keep it as a money claim so that it doesn't complicate things – but if you happen to get a judgement for 50 quid then that would be the equivalent to getting a proper judgement for breach of statutory duty.

I suppose it's unlikely to happen because they will react before then – but if you did get such a judgement, then you could usefully forwarded to the FCA and also the ICO and of course we would publish it here

[sallyblackburn]

I will get the LBA drawn up. If i was to file it as a totally separate case do you think it would be viewed as acceptable? It's cheaper to file a £50 claim than to pay the application fee to amend the current claim? also, with the potential part 20 defendant of Pentagon Ltd being brought in, it might be cleaner?

[BankFodder]

Well you are certainly right about the cost .  Can't decide what would be best. I was rather hoping that if you included the application on the directions questionnaire that it might slip by. Send the letter of claim anyway – you have two weeks to think about it

[sallyblackburn]

Thank you. Will get that sorted. It would be a claim under the DPA 2018 for failure to supply the data. 

[BankFodder]

Strictly speaking a claim under the DPA would be a part 8 claim because you would effectively be asking for an order that they comply with your subject access request – and also definitely be asking for a judgement. This takes you into difficult terrain. No small claims. Danger of costs if you lose. Much more complicated procedure all round.

So you simply express it as a money claim for 50 quid.

If you want to issue the claim then will help you prepare a little particulars which will get it through.

[sallyblackburn]

I will write the letter as a claim for money. Thank you. I am allergic to part 8 and other cost bearing tracks!

[sallyblackburn]

Letter Before Action

 

Sirs,

 

On 24 August 2020 I made an SAR by email. You acknowledged this and asked for ID, which I supplied on 31 August 2020.

 

Since then despite having chased this by email on 2 occasions you have failed to make any further replies and you have failed to supply me with the data that I am entitled to. 

 

Your failure to give me the data is causing me a great deal of worry and I am very concerned as to why you are not sending it to me. 

 

If you do not supply the data within 14 days I will issue a County Court Claim against you for damages of £50 for the stress and worry that you are causing me by your failure to abide by the law.

 

Regards

 

XX

 

 

Edited October 8, 2020 by sallyblackburn

[BankFodder]

Sorry but £500 is out of the question.

Keep it to a very modest amount because the whole objective is to cause trouble – and not to make money. You won't be able to win this kind of money anyway on this claim

[sallyblackburn]

Just now, BankFodder said:

Sorry but £500 is out of the question.

Keep it to a very modest amount because the whole objective is to cause trouble – and not to make money. You won't be able to win this kind of money anyway on this claim

Typo, sorry - was the £50 you said. post edited.

[sallyblackburn]

 

 

 

Sent this today:

 

9 October 2020

 

LETTER BEFORE ACTION

 

Sirs,

 

As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct.

 

On 12 August 2020 I made a Subject Access Request under the Data Protection Act 2018. You acknowledged this on 24 August 2020 and asked for confirmation of ID and address, which I supplied to you on 31 August 2020.

 

Since then – despite my having chased this by email on 2 occasions - you have failed to make any further replies and you have failed to supply me with the data that I am entitled to. 

 

Your failure to give me the data is causing me a great deal of worry and I am very concerned as to why you are not sending it to me. 

 

If you do not supply the data within 14 days, I will issue a County Court Claim against you for damages of £50 for the distress and worry that you are causing me by your failure to abide by the law. You will know that you were required to provide the data within 30 days, unless you gave me compelling reasons as to why it would take you longer.

 

I look forward to hearing from you within the next 14 days. Should I not receive a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.

 

In closing, I would draw your attention to paragraphs 15 and 16 of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim. 

 

Faithfully,

[sallyblackburn]

Creation have a appointed the city law firm Eversheds to defend the section 75 car claim. They claim that they have filed an AoS stating that they intend to defend in full. Will update when the defence is filed. 

Edited October 12, 2020 by sallyblackburn

[BankFodder]

I don't exactly want to tell you that I told you so – but I think now we may be seeing that it would have been helpful if you had sued the dealer as well

[sallyblackburn]

Why would it have been helpful? Creation were always going to employ a massive law firm and were always going to file a defence, have I missed something? Creation can either bring Marshalls in as a part 20 defendant or they can charge them through their contractual mechanisms.

[BankFodder]

Because it would have pitted them against each other. The dealer would have been the weaker party - and it would have been interesting if Evershed's had then been asked to defend both of them. I can imagine any way that Evershed will try to fix the blame on the dealer – and although I don't see that working – if it did, then you would be left to sue the dealer separately.
It is the dealer who has misled you and I think that you would need to establish their responsibility – and by suing creation alone, the dealer are not a party and therefore they can't be obliged to provide evidence or to make sworn statements et cetera so you can't force them at the moment to contribute anything useful to the litigation. They would need to be made a party in order to do that

 

At the moment you will have to produce evidence to attack Evershed's which in fact will be evidence that really is only directly in the knowledge of the dealer so in a way you will be relying upon hearsay. Of course you are a litigant in person so you have some licence – but still, it would have been better to make sure everybody had been invited to the party so that they were all accessible to directions to produce evidence – and at the moment they're not

[sallyblackburn]

I am hoping that they will bring a counterclaim against Marshall, properly pleaded. If they leave marshall out of it, it does not hurt evidentially. I have lots of evidence. recordings, emails, reports, contracts, I have loads of stuff.

 

The only thing that would concern me would be if they denied s.75 applied for some very technical reason. Other than that I have the evidence.

[BankFodder]

Yes but you are in a position where you have to begin by approving the substantive liability. Although section 75 of the consumer credit act means that the finance company shares contractual liability equally with the dealer, you have to prove the liability first.

If you want to think of it in terms of tort – what you're saying here is that creation are vicariously liable for the acts of the dealer. This is broadly correct – but on the other hand, you need to prove the substantive liability of the actor first before you can then transfer the liability to the responsible third party

I don't see any reason why they should bring a counterclaim against Marshall or anyone. All they have to show us that they didn't breach the contract – and they didn't

[BankFodder]

And incidentally, you can only bring a counterclaim against somebody who was already a party to the claim. You have to be countering something.

[sallyblackburn]

I really have to disagree. They are liable for any breaches of contract or misrepresentations. On paper those are proven way beyond the civil standard. The documentary evidence of the mileage and the forensic reports alone are weighty, but combined with the video, the adverts and the approved scheme rules, they have a huge mountain to overcome. 

 

With Marshall not in as a D there is nobody to rebut. The salesman no longer works for them so they can't call him either way.

 

I am going to guess that the argument will be over the level of damages and possibly a technical argument over s75

 

"And incidentally, you can only bring a counterclaim against somebody who was already a party to the claim. You have to be countering something."

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20#20.5

 

You can issue a counterclaim against a third party. It happens in s75 cases all the time.

 

Counterclaim against a person other than the claimant

20.5

(1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.

(2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.

(3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.

 

 

Edited October 12, 2020 by sallyblackburn

[BankFodder]

Firstly, let me say that I hope you're right. However, as you say they are liable for breaches of contract or misrepresentations and those have to be proven first of all.

Let's see how it goes.

[sallyblackburn]

I hope so too.

I will post the defence when it arrives.

 

I am 50/50 as to whether I think they will bring Marshalls in as a part 20 defendant.

It both helps and hurts them, however as you say it will set them against each other, which may be a good thing for me.

Let's see.

Thank you .

[BankFodder]

I can't see why they should bring the dealer in. If the dealer isn't in it then there is no way to compel any direct evidence.

It certainly would be a good thing to have them against each other

[dx100uk]

1 hour ago, sallyblackburn said:

Creation were always going to employ a massive law firm

 

eversheds are solicitors for hire but part of the Creation Group of Companies or their parents - just one desk nearer the bog..