Guidelines - Requests For An Original Agreement Under The Consumer Credit Act 1974

[rosierose]

Hello All. This seems the appropriate place to post this. So...

 

I have seen lazy creditors replying to s77-79 requests with generic 'print outs' that are not facsimile copies of agreements, but, supposedly, contain all the relevant terms etc.

 

What happens if at a later date it transpires that [there] is no original agreement?

Edited May 16, 2008 by rosierose
oops missed out [there] <-- rosie dyslexic

[hsbcfiddled]

Hello All. This seems the appropriate place to post this. So...

 

I have seen lazy creditors replying to s77-79 requests with generic 'print outs' that are not facsimile copies of agreements, but, supposedly, contain all the relevant terms etc.

 

What happens if at a later date it transpires that is no original agreement?

 

 

No original agreement = not enforceable = no debt.

 

fiddled

[rosierose]

No original agreement = not enforceable = no debt.

 

fiddled

 

Yes, indeed. But what about the OC? IMO, they would be in very deep trouble, wouldn't they?

[hsbcfiddled]

Yes, indeed. But what about the OC? IMO, they would be in very deep trouble, wouldn't they?

I assume they would be- but my initial reaction would be the knowledge that the debt has gone.

Follow it up by all means.

[rosierose]

I assume they would be- but my initial reaction would be the knowledge that the debt has gone.

Follow it up by all means.

 

It has annoyed me to see creditors behaving like this, specifically HBOS. They have a template that they alter for each request - fill in the name, address and some interest details and no doubt think themselves clever at having avoided the actual job of retrieving an agreement from their archives.

 

But we know from experience that in many older cases (and some more recent) that there is no agreement - they have failed to adhere to proper procedure and as per Francis Benyon's comments should 'pay the price.'

 

The point is that if a creditor goes down this route, a debtor will not ever know whether there is an agreement until the creditor came to enforce in court. Surely this is what sections 77-79 were drafted to avoid?

 

I think I need to go and have a look at the Fraud Act....

[MarkieMark]

I requested a copy of the credit agreement in accordance with 77/78 Consumer Credit Act 1974 and guess what HSBC did.

 

They first told me they had no agreement. So I made the above request.

 

Then all of a sudden the agreement appears through the post but there is no signature on the agreement. I contact teh HSBC by phone advise them of this and they sent me a fax. On the faxed copy the agreement is different to the one they had sent me.

 

All the dates on the documents appear to be incorrect.

 

I am really concerned there maybe something strange going.

 

I am waiting for the HSBC reply.

[car2403]

I requested a copy of the credit agreement in accordance with 77/78 Consumer Credit Act 1974 and guess what HSBC did.

 

They first told me they had no agreement. So I made the above request.

 

Then all of a sudden the agreement appears through the post but there is no signature on the agreement. I contact teh HSBC by phone advise them of this and they sent me a fax. On the faxed copy the agreement is different to the one they had sent me.

 

All the dates on the documents appear to be incorrect.

 

I am really concerned there maybe something strange going.

 

I am waiting for the HSBC reply.

 

I think you're right to be concerned and we've seen this before.

 

If you start a new thread, scan and post up the documents they've sent you and then we can pop in and offer detailed advice.

 

Here's how;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[JonCris]

Them sending an unsigned agreement doesn't mean they have an enforceable one.

 

It could mean that someone somewhere filled one in yesterday & sent to you. That doesn't make the debt enforceable. They need the original signed by you to do that

[hsbcfiddled]

Them sending an unsigned agreement doesn't mean they have an enforceable one.

 

I would be inclined to believe that it was 'absolute proof' that they do not have the agreement.

[Dougal16T]

Good morning everyone...

 

Just a thought...why are we not looking at the problem from another angle....see The Fraud Act 2006.....!!:grin:

 

Copy of letter sent today to Mackenzie Hall...this Act is the one I belive applies to ALL Financial providers and banking institutions.

 

Thomas Lloyd

Mackenzie Hall

30 The Foregate

Kilmarnock[

KA1 1JH 20th May 2008

 

 

First Class recorded delivery

 

Re: M XXXXXX

 

 

I do not acknowledge any debt to your company or any other person

 

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

 

The appropriate sections read:

 

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

 

This section makes it an offence to commit fraud by false representation

Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.

Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.

Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

 

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

 

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:

"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."

Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

 

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.

In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

 

Section 8: "Article"

Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

 

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

 

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

 

I think Section 3 is the particular worry for all of the Financial providers......

Sorry this post is a bit lengthy...but does anyone have any comments?

Best wishes to you all

Dougal:cool:

 

__________________

 

Last edited by Dougal16T; 20th May 2008 at 09:47

[hsbcfiddled]

An excellent post Dougal.

 

Which makes me think that...

 

In my case the bank have admitted (though not in writing) that they believe my agreement hasnt been properly executed- therefore I want my payments refunded, with interest.

 

So ... If they dont have the agreement then they have no title to take payments..... So is the failure to refund.. an act of deliberate theft?

 

fiddled

[JonCris]

hsbc I don't think you'll get the payments but you might get the interest paid

[hsbcfiddled]

hsbc I don't think you'll get the payments but you might get the interest paid

 

The ML was equivilent to Charges and resulting interest.

So why shouldnt I have it back? with compounded interest?

[Dougal16T]

Hello to you HSBCFiddled

 

Thanks for the message...my bank are also HSBC (Horrible Back Stabbers Club)...but to try and give you a sensible answer:

 

To prove an act of theft (Theft Act 1968 as amended) in law there are 'elements' (points to prove)

 

To commit theft 'a person steals property belonging to another with the intention of permanently depriving the other of it'.

 

Points to prove:

 

1. Is this act committed by a person ?

2. Is it property ?

3. Does it belong to another ?

4. Is there any intent to permanently deprive ?

 

Answers I think are these : It is committed by a person, as acts of an employee are those of the company (whilst he/she is employed by the company), Money has already been held in law to be property, It did belong to someone else (you), all good so far, BUT where the problem might be is proving the 'intent' element.

Intent is referred to as 'the state of mind of the offender at the time of the commission of the act'. Let's say there was intent, because until you asked for it back, there was no offer to give it back.

The final hurdle is was the intent 'to permanently deprive', I think this may be a good loophole (I'm sorry to say) for the Bank. They could simply argue that they would have given it back if you had asked for it.

I don't accept that view - if you had not asked they would have given it back, so I think that final point is they would have ermanently deprived you of the money and had no intention of returning it to you.

 

Sorry this is a bit involved....but if you re-read my extract from the Fraud Act 2006, I think that Section 3 is where there is a real problem for the banks and other financial services - because it (by virtue of the Act) criminalises the failure to provide the information yhou have requested. This becomes then a matter for the Police to prosecute (Crime), maybe Trading Standards (Civil) or even for you to commence a Private Prosecution with the consent of the Court, by application to the Magistrates.

 

Oh I do rabbit on........if I can/have helped I am only too pleased to have done so...HSBC owe me over £5,000......

 

Best wishes

 

Dougal

Edited May 23, 2008 by Dougal16T
poor spelling - again - another detention!!

[JonCris]

The ML was equivilent to Charges and resulting interest.

So why shouldnt I have it back? with compounded interest?

 

If there was no actual loan involved then of course you should

[MarkieMark]

I have been researching this and found that an unsigned agreement is unenforceable even if they can proof they deposited money into your account or paid by cheque.

 

The terms of the agreement and not executed therefore unenforceable.

 

How will the they proof to the court that you agreed to pay them so much every month?

 

without a signed agreement ..there are no agreed terms then this is Unenforceable.......

[car2403]

I have been researching this and found that an unsigned agreement is unenforceable even if they can proof they deposited money into your account or paid by cheque.

 

The terms of the agreement and not executed therefore unenforceable.

 

How will the they proof to the court that you agreed to pay them so much every month?

 

without a signed agreement ..there are no agreed terms then this is Unenforceable.......

 

Technically, your post isn't quite accurate I'm afraid.

 

If you are referring to a missing debtors signature, you are of course right in that the agreement will be unenforceable under s.127(3).

 

If you are referring to a missing creditors signature, you are probably wrong in that the agreement would likely be enforceable with a Court Order at worst. A missing creditors signature (the "squiqqle" you and I would recognise as a signature, any road) wouldn't make the agreement unenforceable automatically. The Court can take the view that the agreement, if it has the creditors intention to be bound by it, (such as a company logo being visible, for example) can be enforced as a result. This is because the legal definition of a signature is generally accepted to be an undertaking to perform some task (benefit) on the receipt of some consideration (payment) in return. In the case of a CCA, the creditor agrees to loan you the money, (the benefit) in return for the interest it makes in profit (the consideration) in return.

 

So, to clarify, if you mean missing debtors signature, you are right. Just wanted to make that clear, for the avoidance of doubt, markie...

[mandym501]

Hi.

 

i'm new to the site and not sure if this is the right place to post.

 

In decemebr last year I sent off for a copy of my credit agreement - I waited the 12 working days plus 30 days time limit. I wrote to the debt company 1st credit and told them they had committed an offence by not sending me the credit agreememt in within the time scale. I also sent a letter to TSB, who the original debt was with teling them the same. I also sent a letter to the OFT telling them I had had no response.

 

I heard nothing else - This week I got a etter from a solicitor with a copy of the credit agreement. Is this now enforcable now it has appeared - even though it was late and I made a complaint?

 

Any advice would be greatly appreciated.

 

mandy

[MarkieMark]

Have you tried the Financial Ombudsman Service?

Edited May 28, 2008 by MarkieMark

[Guest forgottenone]

Just for some clarification. I'm asking because I received an obvious printed/faxed/computer server printout of a CCA I requested recently and need to be utterly certain of a few things. Clearly, it's not the original. When you request a CCA does it have to be the exact, physical/same thing you signed *or didn't in some cases* when opening the account?

Or, does 'true copy'' mean just that? A copy of the original?

 

What I am looking for is because I have received a copy - you can even see grooves in the sheet they've sent *from whatever they've scanned it or photopied from*, and it's on fax paper - as above. Therefore, as it's not an original copy how am I to know nothing has been added or altered afterwards?

 

Just something I an unclear of where 'true' is concerned. There is also a http address across the top of the CCA concerned, with a server/site address.

 

I am looking for anything that may help me.

[Dougal16T]

Good evening everyone

Just a thought...why are we not looking at the problem from another angle....see The Fraud Act 2006.....!!

Copy of letter sent today to Mackenzie Hall....

 

Thomas Lloyd

Mackenzie Hall

30 The Foregate

Kilmarnock

KA1 1JH 20th May 2008

 

 

First Class recorded delivery

 

Re: M XXXXXX

 

 

I do not acknowledge any debt to your company or any other person

 

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

 

The appropriate sections read:

 

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

 

This section makes it an offence to commit fraud by false representation

Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.

Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.

Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

 

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

 

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:

"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."

Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

 

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.

In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

 

Section 8: "Article"

Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

 

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

 

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

 

Sorry it's a bit lengthy...but does anyone have any comments?

Best wishes to you all

Dougal:cool:

ps: I've put several copies of this letter in different forums as I feel it really is very important to consider all possible solutions....

Edited May 28, 2008 by Dougal16T
to set right text errors!

[Guest forgottenone]

And I just posted my question in the wrong section!

[mandym501]

I haven't tried the financial ombudsman - I did report it to the OFT though - do you think that should be the next step?

 

Thanks

 

mandy

[MarkieMark]

Yes try this....

 

I have been known that the Financial Ombudsman Service are very slow... perhaps the dont have enough staff to deal with the number of complaints... can take upto 9 months...

 

or if your confident make an application under section 7 of the Data Protection Act. If they fail to do this then aleast you are in compensation...

 

Part II Rights of data subjects and others

 

7 Right of access to personal data

 

(1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled—

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b) if that is the case, to be given by the data controller a description of—

(i) the personal data of which that individual is the data subject,

(ii) the purposes for which they are being or are to be processed, and

(iii) the recipients or classes of recipients to whom they are or may be disclosed,

© to have communicated to him in an intelligible form—

(i) the information constituting any personal data of which that individual is the data subject, and

(ii) any information available to the data controller as to the source of those data, and

(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

(2) A data controller is not obliged to supply any information under subsection (1) unless he has received—

(a) a request in writing, and

(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless—

(a) the other individual has consented to the disclosure of the information to the person making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to—

(a) any duty of confidentiality owed to the other individual,

(b) any steps taken by the data controller with a view to seeking the consent of the other individual,

© whether the other individual is capable of giving consent, and

(d) any express refusal of consent by the other individual.

(7) An individual making a request under this section may, in such cases as may be prescribed, specify that his request is limited to personal data of any prescribed description.

(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day.

(9) If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.

(10) In this section—

• “prescribed” means prescribed by the Secretary of State by regulations;
  
• “the prescribed maximum” means such amount as may be prescribed;
  
• “the prescribed period” means forty days or such other period as may be prescribed;
  
• “the relevant day”, in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3).
  

(11) Different amounts or periods may be prescribed under this section in relation to different cases.

8 Provisions supplementary to section 7

 

(1) The Secretary of State may by regulations provide that, in such cases as may be prescribed, a request for information under any provision of subsection (1) of section 7 is to be treated as extending also to information under other provisions of that subsection.

(2) The obligation imposed by section 7(1)©(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless—

(a) the supply of such a copy is not possible or would involve disproportionate effort, or

(b) the data subject agrees otherwise;

and where any of the information referred to in section 7(1)©(i) is expressed in terms which are not intelligible without explanation the copy must be accompanied by an explanation of those terms.

(3) Where a data controller has previously complied with a request made under section 7 by an individual, the data controller is not obliged to comply with a subsequent identical or similar request under that section by that individual unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.

(4) In determining for the purposes of subsection (3) whether requests under section 7 are made at reasonable intervals, regard shall be had to the nature of the data, the purpose for which the data are processed and the frequency with which the data are altered.

(5) Section 7(1)(d) is not to be regarded as requiring the provision of information as to the logic involved in any decision-taking if, and to the extent that, the information constitutes a trade secret.

(6) The information to be supplied pursuant to a request under section 7 must be supplied by reference to the data in question at the time when the request is received, except that it may take account of any amendment or deletion made between that time and the time when the information is supplied, being an amendment or deletion that would have been made regardless of the receipt of the request.

(7) For the purposes of section 7(4) and (5) another individual can be identified from the information being disclosed if he can be identified from that information, or from that and any other information which, in the reasonable belief of the data controller, is likely to be in, or to come into, the possession of the data subject making the request.

10 Right to prevent processing likely to cause damage or distress

 

(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply—

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

11 Right to prevent processing for purposes of direct marketing

 

(1) An individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing for the purposes of direct marketing personal data in respect of which he is the data subject.

(2) If the court is satisfied, on the application of any person who has given a notice under subsection (1), that the data controller has failed to comply with the notice, the court may order him to take such steps for complying with the notice as the court thinks fit.

(3) In this section “direct marketing” means the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals.

12 Rights in relation to automated decision-taking

 

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

(2) Where, in a case where no notice under subsection (1) has effect, a decision which significantly affects an individual is based solely on such processing as is mentioned in subsection (1)—

(a) the data controller must as soon as reasonably practicable notify the individual that the decision was taken on that basis, and

(b) the individual is entitled, within twenty-one days of receiving that notification from the data controller, by notice in writing to require the data controller to reconsider the decision or to take a new decision otherwise than on that basis.

(3) The data controller must, within twenty-one days of receiving a notice under subsection (2)(b) (“the data subject notice”) give the individual a written notice specifying the steps that he intends to take to comply with the data subject notice.

(4) A notice under subsection (1) does not have effect in relation to an exempt decision; and nothing in subsection (2) applies to an exempt decision.

(5) In subsection (4) “exempt decision” means any decision—

(a) in respect of which the condition in subsection (6) and the condition in subsection (7) are met, or

(b) which is made in such other circumstances as may be prescribed by the Secretary of State by order.

(6) The condition in this subsection is that the decision—

(a) is taken in the course of steps taken—

(i) for the purpose of considering whether to enter into a contract with the data subject,

(ii) with a view to entering into such a contract, or

(iii) in the course of performing such a contract, or

(b) is authorised or required by or under any enactment.

(7) The condition in this subsection is that either—

(a) the effect of the decision is to grant a request of the data subject, or

(b) steps have been taken to safeguard the legitimate interests of the data subject (for example, by allowing him to make representations).

(8) If a court is satisfied on the application of a data subject that a person taking a decision in respect of him (“the responsible person”) has failed to comply with subsection (1) or (2)(b), the court may order the responsible person to reconsider the decision, or to take a new decision which is not based solely on such processing as is mentioned in subsection (1).

(9) An order under subsection (8) shall not affect the rights of any person other than the data subject and the responsible person.

13 Compensation for failure to comply with certain requirements

 

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

[hsbcfiddled]

Hi.

 

i'm new to the site and not sure if this is the right place to post.

 

In decemebr last year I sent off for a copy of my credit agreement - I waited the 12 working days plus 30 days time limit. I wrote to the debt company 1st credit and told them they had committed an offence by not sending me the credit agreememt in within the time scale. I also sent a letter to TSB, who the original debt was with teling them the same. I also sent a letter to the OFT telling them I had had no response.

 

I heard nothing else - This week I got a etter from a solicitor with a copy of the credit agreement. Is this now enforcable now it has appeared - even though it was late and I made a complaint?

 

Any advice would be greatly appreciated.

 

mandy

 

Are you certain that it is a copy of the original- and not a copy, of a scan, of the original.

It has been known for the original to be scanned onto a computer and the original destroyed. This scenario would mean (IMHO) that the debt would be unenforceable.