walton v rbos

[paulwlton]

Hi Paul,

We have had this discussion before. If a "reconstruction" is made of anything it is impossible for it to be an "exact" copy ........if you make an an exact copy of a birth certifcate or similar document ...it is a "forgery"

in any language.

The HOL are wrong the law lords are wrong ....its basically double standards .....................you try an get a passport with a forged birth certicate and see what you get ...fined and possibly prison....

All Bxxxxxs in my opinion.

 

"Sorry your honour I lost the license for my shotgun so I "reconstructed" one from the one I had 6 years ago" see what a judge would say to that!!!!!

 

 

sparkie

 

IMO the "true copy" must be just that. The creditor must not be allowed to recreate agreements from their records. As we know Sparkie, records and accounts are easily manipulated.

[andrew1]

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

 

 

How can anyone deem any part of an agreement a true copy when it can be re constructed?...Francis Bennion had his own views on getting the prescribed terms correct...if it's reconstructed anything can be included. Of course Bennions view won't count...he just drafted the Act!!!

[photoman]

Maybe you could take John Fingleton's signature from off of the letter he wrote to you...... and reconstruct a "carbon copy" of the letter he wrote to you.... but instead now stating they are not allowed to reconstruct agreements ?

[photoman]

... or reconstruct a copy of his employment contract.... but this time stating that he works for the OFT instead of the banks, and including a job description that includes enforcing the law and looking after consumers interests?

[banker_rhymes_with]

Hello Paul!

You may also find the link below interesting.

 

http://news.bbc.co.uk/hi/english/sta...ts/credit1.txt

 

I think everyone should read that link. Very disturbing indeed.

 

IMO the "true copy" must be just that. The creditor must not be allowed to recreate agreements from their records. As we know Sparkie, records and accounts are easily manipulated.

 

I fully agree.

 

Cheers,

BRW

[photoman]

Probably been posted on here before (In fact it was probably Paul who did so).

 

 

Here's a little reminder of the great pride they take in their work.

 

 

 

[/img]

[car2403]

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

 

 

How can anyone deem any part of an agreement a true copy when it can be re constructed?...Francis Bennion had his own views on getting the prescribed terms correct...if it's reconstructed anything can be included. Of course Bennions view won't count...he just drafted the Act!!!

 

I'd disagree that it won't count, because of the intent behind enacting the section without discussion, which is mentioned above, in red.

 

Of course, you'd have tough time getting a Judge to look at Hansard (the record of the conversations held in Parliament when enacting the Act) and relying on the fact that this wasn't discussed because it was so obvious to Parliament that it should stand, without question, then getting him to apply that to your case. Bennion's view could help swing the balance in your favour, though, so it's worth including this in any bundle, IMHO.

[Sparkie1723]

I can see the thinking around “reconstructing” an agreement form, and the terms and conditions that would apply at the time.

I do not see a problem with that at all…..that doesn’t really hurt anyone. Where I see the problem is that if it does not contain your signature then its absolutely unenforceable no matter how they “reconstruct” it., or how many times they reconstruct it.

They cannot “reconstruct” your signature and without it its useless, if they try “paste and copy” that’s forgery….so……..Why bother to reconstruct it?

The only time they need to “reconstruct” it is when they have lost the original, so what’s the point. They can’t enforce it. Waste of time waste of paper.

 

sparkie

[Sparkie1723]

Maybe you could take John Fingleton's signature from off of the letter he wrote to you...... and reconstruct a "carbon copy" of the letter he wrote to you.... but instead now stating they are not allowed to reconstruct agreements ?

 

Hi photoman nice to hear from you, but you have hit the nail on the head the post that contains a copy of Mr Fingletons letter is "a true copy" of that letter....its contains evrything he said and it contains his signature my point exactly ...I rest my case!!!!:D

 

sparkie

[paulwlton]

... or reconstruct a copy of his employment contract.... but this time stating that he works for the OFT instead of the banks, and including a job description that includes enforcing the law and looking after consumers interests?

 

Quality photoman.

[paulwlton]

I would appreciate comments on my legal analysis for my skelly.

Paul

Breaches of the Data Protection Act 1998

 

14 The first principle of the Data Protection Act 1998 requires that personal data is processed fairly and lawfully. To comply with this principle the Defendant must have satisfied at least one of the conditions set out in Schedule 2. It is understood that the Defendant is seeking to rely up on the sections set out below contained in their Defence. The Claimant wishes to emphasise the word “performance” contained in schedule 2 (a) as opposed to the Defendant’s use of the word pursuant.

 

2 The processing is necessary-

(a) for the performance of a contract to which the data subject is a party…

 

6 (1) The processing is necessary for the legitimate interests pursued by the data controller…

 

15 In relation to the Defendant’s claim that the conditions above pursuant to Schedule 2 (a) has been satisfied, the Claimant can only assume that the bank’s reliance must be based on the fact that the contract is performing post judgment. However, if this is the case, then there must be a separate covenant contained in the Claimant’s agreement/agreements allowing for this. In circumstances where no covenant exists it is plain and obvious that there cannot be a performing contract post judgment.

 

16 It is not sure what legitimate interests the Defendant seeks to rely up on in respect of the continued processing of the Claimant’s accounts post judgment. It is not acceptable for the bank merely to claim that it has “entitlement to process data relating to such matters”. The Defendant must provide a legal basis for processing said accounts independent of the judgment account.

 

17 Furthermore, Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

 

18 Further to the foregoing paragraph and in addition to failing to satisfy the requirements set out in schedule 2. It is submitted that the Defendant has contravened the First principle by appropriating the Claimants payment contrary to section 81 Consumer Credit Act 1974. It is further submitted that processing data in accordance with significantly different terms and conditions to what the Claimant agreed to is unlawful and unfair, and in any case, contrary to section 93 Consumer Credit Act 1974,

 

Section 93 Interest not to be increased on default

The debtor under a regulated consumer credit agreement shall not be obliged to pay interest on sums which, in breach of the agreement, are unpaid by him at a rate—

(a)Where the total charge for credit includes an item in respect of interest, exceeding the rate of that interest,

(b) in any other case, exceeding what would be the rate of the total charge for credit if any items included in the total charge for credit by virtue of section 20(2) were disregarded.

 

19 The Claimant submits that his accounts have incurred further interest in addition to the sum of interest contained in the total charge for credit stipulated in the Claimant’s loan agreement. For the avoidance of any doubt the Court granted Judgment for the principle sum together with the interest contained in the total amount payable set out in the agreement.

 

20 It is further submitted that the Defendant’s processing is unfair by allowing compounded interest to accumulate to a greater extent on one account, whilst at the same time crediting the Claimant’s monthly payment to another account which has built to a credit of over £3000, this contrary to sec 6 (2) The County Courts (Interest on Judgment Debts) Order 1991

Appropriation of interest

 

6 (2) Money paid by the debtor in respect of any judgment debt shall be appropriated first to discharge or reduce the principal debt and then towards the interest.

 

Fourth Principle

 

 

“Personal data shall be accurate and, where necessary, kept up to date”.

Data are inaccurate if they are incorrect or misleading as to any matter of fact.

The Act provides guidance in interpreting this Principle as follows:

 

The Principle is not to be taken as being contravened because of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where:-

(a) taking account of the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) If the data subject has notified the data controller of the data subject’s view that the data are inaccurate, the data indicate that fact.

 

 

21 The Defendant has totally disregarded this Principle by failing in its obligation to comply with it, and correcting the inaccuracies after the Claimant had notified the Defendant’s senior management of those serious inaccuracies.

 

22 The Claimant further submits that the Defendant owed him a duty of care to amend the inaccurate data as soon as was reasonably possible, and that in not doing so was again in breach of the Fourth Principle and assumed that because of their position need not abide by the statute of the Data Protection Act 1998 the Claimant submits the Defendant abused that position.

 

The sixth principle

 

A person is to be regarded as contravening the sixth principle if, but only if—

(b) he contravenes section 10 by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section, or

(d) he contravenes section 12 by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section.

23 The Claimant contends that he has given a notice pursuant to both section 10 and 12 of the said Act, It is submitted that The Defendant’s failure to adhere to the statutory timescale of 21 days is a contravention of the sixth principle. Furthermore, the Claimant has a contemporaneous recorded electronic record which supports and verifies that the Defendant received such notice. It is submitted that the Defendant is being perversely and deliberately untruthful to assert to the contrary.

Submission to the Court

 

24. It is averred that the Defendant’s continued unlawful processing of incorrect data as well as their unconscionable behavior has led directly to the Claimant suffering severe distress and financial loss and that pursuant to section 13 of the Data Protection Act the Claimant is entitled to compensation for the damage and distress that has been caused to him.

 

25. The Claimant claims his right to claim compensation by virtue of the following section of the Data Protection Act 1998:

 

Right to Compensation (section 13) of the Data Protection Act 1998

 

An individual who suffers damage, or damage and distress, as the result of any contravention of the requirements of the Act by a data controller, is entitled to compensation where the data controller is unable to prove that he had taken such care as was reasonable in all the circumstances to comply with the relevant requirement.

 

“Damage” includes financial loss or physical injury. Unless processing is for the “special purposes”, (as to which see below) compensation is not payable for distress alone. If the individual can prove that damage has been suffered, the Court may award compensation for any distress which has also been suffered by reason of the breach of the Act

 

Conclusion

 

In view of the full facts and compelling documentary evidence submitted, the Claimant believes he has every chance of success and therefore, respectfully asks the court to allow the claim to proceed to a full hearing..

 

This Skeleton Argument has been prepared by the Claimant who is a Litigant in Person

Edited June 14, 2008 by paulwlton

[FANTASY CHARGES]

I'd disagree that it won't count, because of the intent behind enacting the section without discussion, which is mentioned above, in red.

 

Of course, you'd have tough time getting a Judge to look at Hansard (the record of the conversations held in Parliament when enacting the Act) and relying on the fact that this wasn't discussed because it was so obvious to Parliament that it should stand, without question, then getting him to apply that to your case. Bennion's view could help swing the balance in your favour, though, so it's worth including this in any bundle, IMHO.

 

 

ANDREW1 don't i just love seeing that quote reproduced time after time so here is "the match to add to your petrol"

 

Legislative drafting in England and elsewhere in the Commonwealth has now reached this high degree of precision. In 1963 Lord Reid said that “our standard of drafting is such that [the need to do violence to the words] rarely emerges”.12 Later Lord Bridge referred to “a modern statute, using language with the precision one expects”.13 Lord Roskill remarked that until comparatively recently “statutes were not drafted with the same skill as today”.14 The Court of Appeal said of the Consumer Credit Act 1974 (drafted by the present author):

“. . . the draftsman has been careful and precise in his choice of language: for example, where ‘means’ is intended the statute says ‘means’, and where ‘includes’ is meant it says ‘includes’”.15

 

12. Luke v IRC [1963] AC 557 at 577.

13. Wills v Bowley [1983] 1 AC 57 at 104.

14. United States of America Government v Jennings [1982] 3 WLR 450 at 460.

15. . Office of Fair Trading v Lloyds TSB Bank plc, Tesco Personal Finance Ltd and American Express Services Europe Ltd [2006] EWCA Civ 268, [2006] 2 All ER 821, at [65].

 

SOURCE : http://www.francisbennion.com/2007/018.htm

[Sparkie1723]

Hi Paul

 

Re Your Skeleton Argument

 

Para 16 ...I would add "In any event in order to rely on the "legitimate interests condition" the data subject must be given an oportunity to object/consent as the rights of the data subject "over ride" those of the data controller.

 

The Sixth Principle.

 

It is not only those instances you have quoted that the Sixth Principle is contravened ...As failure to supply Data in response to an S.A.R - (Subject Access Request) and failure to supply it within the stated timescale also contravene this Principle,

I would "tweek it" just that little bit.

 

sparkie

[car2403]

Hi Paul

 

Re Your Skeleton Argument

 

Para 16 ...I would add "In any event in order to rely on the "legitimate interests condition" the data subject must be given an oportunity to object/consent as the rights of the data subject "over ride" those of the data controller.

 

The Sixth Principle.

 

It is not only those instances you have quoted that the Sixth Principle is contravened ...As failure to supply Data in response to an S.A.R - (Subject Access Request) and failure to supply it within the stated timescale also contravene this Principle,

I would "tweek it" just that little bit.

 

sparkie

 

Here's more on this from the ICO;

 

The Information Commissioners Office's guidance on the Data Protection Act 1998, states;

 

3.1.5 Consent

 

One of the conditions for processing is that the data subject has given his consent to the processing.

 

The Commissioner’s view is that consent is not particularly easy to achieve and that data controllers should consider other conditions in Schedule 2 (and Schedule 3 if processing sensitive personal data) before looking at consent,. No condition carries greater weight than any other. All the conditions provide an equally valid basis for processing. Merely because consent is the first condition to appear in both Schedules 2 and 3,does not mean that data controllers should consider consent first.

 

Consent is not defined in the Act. The existence or validity of consent will need to be assessed in the light of the facts. To assist in understanding what may or may not amount to consent in any particular case it is helpful to refer back to the Directive. This defines "the data subject’s consent" as:-

 

"…any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed".

 

The fact that the data subject must "signify" his agreement means that there must be some active communication between the parties. A data subject may "signify" agreement other than in writing. Data controllers cannot infer consent from non- response to a communication, for example from a customer’s failure to return or respond to a leaflet.

 

The adequacy of any consent or purported consent must be evaluated. For example, consent obtained under duress or on the basis of misleading information will not be a valid basis for processing.

 

Where a data subject does not signify his agreement to personal data relating to him being processed, but is given an opportunity to object to such processing, although this does not amount to consent for the purposes of the Act, it may provide the data controller with the basis to rely upon another Schedule 2 condition, for example, the legitimate interests condition, provided that the data subject is given the right to object before the data are obtained.

 

Consent must be appropriate to the particular circumstances. For example, if the processing is intended to continue after the end of a trading relationship then the consent should cover those circumstances. However, it must be recognised that even when consent has been given it will not necessarily endure forever. While in most cases consent will endure for as long as the processing to which it relates continues, data controllers should recognise that, depending upon the nature of the consent given and the circumstances of the processing, the individual may be able to withdraw consent.

[lookinforinfo]

Car the ICO go further than that on the subject of consent. They take the meaning of consent from an EEC directive of the definition-viz

"…any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed".

 

and then the ICO say that because a borrower has to sign the contract in order to get the loan, that consent has not been given freely. And it follows from there that consent has not been given at all, despite the signature. It would seem that too little has been made of this argument by those of us on the forum. Especially when dealing with CRAs who quote large chunks of the ICO guidance notes whenever they are challenged.

[paulwlton]

It seems RBSs don't want to lock horns regarding the final charging order hearing.

 

My case, and references to others will be put back in the public domain before my DPA hearing. Keep you posted.

 

Paul

 

 

[davefirewalker]

I can smell the fear.......

 

Dave

[Sparkie1723]

Paul,

I would ask if they are prepared to pay you your costs to date in preparing for the hearing, you incurr costs the same as RBS.

 

sparkie

[paulwlton]

Paul,

I would ask if they are prepared to pay you your costs to date in preparing for the hearing, you incurr costs the same as RBS.

 

sparkie

 

Nice one. Why didn't i think of that.

 

I'll post a document from cab later, it'll reveal that RBS are disingenuous (if you didn't already know) this will bode well for my hearing.

[JonCris]

It seems RBSs don't want to lock horns regarding the final charging order hearing.

 

My case, and references to others will be put back in the public domain before my Data Protection Act hearing. Keep you posted.

 

Paul

 

 

 

No doubt you'll gis us all a link Paul:D

[paulwlton]

In April 2006 the RBS told the CAB that it had made an error and that the interest would be frozen and all interest applied would be removed. As we all know now the bank did not freeze interest and twelve months later tried to justify by recreating agreements which contained the "dreaded clause"

 

 

[Sparkie1723]

Hi Paul with ref the above......Oh Deary Deary me what is Sir Fred going to make of this???!!!

I think you will find the Law of Estoppel will apply here.....it stops someone going back on their word.

 

sparkie

[paulwlton]

Hi Paul with ref the above......Oh Deary Deary me what is Sir Fred going to make of this???!!!

I think you will find the Law of Estoppel will apply here.....it stops someone going back on their word.

 

sparkie

 

Hi Sparkie

 

As discussed in our telecon earlier.....How are they going to defend my claim that they've breached the Fourth principle.

 

Paul

[car2403]

No doubt you'll gis us all a link Paul:D

 

Surely they aren't suggesting that a s.77 request holds no relevance because a Judgment has already been awarded?

 

s.77 would override any Judgment, as the outstanding balance would mean that the requirement of supplying the documentation would still be in place. A CCJ can't override the obligations of the creditor, because of the clear intentions of Parliament behind enacting the section.

 

If they can't comply with a s.77 request, thats a reason to have Judgment set aside on the basis that there is a complete defence against the claim, so the original Judgment is unsound as a result.

[paulwlton]

This is my finished skeleton argument, it will be submitted with all my evidence.

 

Background

 

1 The claimant held a Royalties current account no 10017026 (“the account”) with the defendant. Which was governed by their standard terms and conditions and regulated under the Consumer Credit Act 1974?

 

2 In March 1998 the claimant took out a fixed rate personal loan no 03805926 (“the loan”) which was governed by terms and conditions contained in the agreement and regulated under the Consumer Credit Act 1974.

3 On the 16th of July 1998 a termination notice pursuant to sec 76 and 87 of the Consumer Credit Act 1974 was issued by the defendant for the outstanding account overdraft balance and arrears on the personal loan. Subsequently, on the 30th July 1998 the defendant terminated both agreements.

 

4 On the 20th August 1998 the defendant opened two capital and interest variable rate loan accounts entirely without the claimant’s knowledge or consent and these were then used to replace the claimant’s original accounts.

 

5 The Claimant draws the courts attention to exhibit A and B

 

6 Exhibit A clearly shows that the indebtedness under the Claimant’s loan agreement was discharged by monies transferred from a capital and interest loan account (no 00726774).

Exhibit B clearly shows that the claimant’s overdraft balance was replaced with a capital and interest loan account (no 00726766).

The claimant cites the Bankers' Books Evidence Act, 1879.

 

Sec2: subject to this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of that entry, and of the matters, transactions and accounts recorded in it.

Therefore, it is submitted that all transactions and entries on the claimant’s accounts are a true record of past and present accounting events.

 

7 In December 1998 the defendant sought and obtained a county court judgment with the court setting payments of £38.00 per month to discharge the balance. The defendant then opened two further accounts “the judgment account” ref 499152 Exhibit C and “Router account” no 499152 Exhibit D. The judgment account shows a correct balance of the amount outstanding which decreases monthly. However, the “router account” continues to accrue compound interest, and contains the heading “monitoring for arrears”. It is important to note that the “router account” is a live automated Program used for "debt management" which contains the same account number as the judgment account.

 

8 In April 2007 the claimant challenged the defendant’s legal right to apply all and further interest to the claimant’s accounts by requesting a “true copy” of the original agreement pursuant to sec 77 Consumer Credit Act 1974. To try to justify the appliance of such interest the defendant conjectured two consumer credit act agreements Exhibit D and E which contain a clause allowing quarterly interest to be applied to the claimant’s accounts both before and after judgment. It is noted, these were passed off as “true copies” of the claimant’s loan agreements, and therefore binding under sec 172 (1) of the

said Act.

9 The terms and conditions of the claimant’s loan agreement and current account does not contain a clause which allows the defendant to apply post judgment interest. Therefore it is submitted that the defendant is precluded from applying such interest. The claimant relies on the authority cited below.

 

The Director General of Fair Trading v First National Bank plc, [2001] UKHL 52

 

6. Thus a lender under a regulated credit agreement who obtains judgment against a defaulting borrower in the county court will be entitled to recover the principal outstanding at the date of judgment and interest accrued up to that date but will not be entitled to an order for statutory interest after that date, and even if the court had power to award statutory post-judgment interest it could not do so, in any case where an instalment order had been made, unless there had been a default in the due payment of any instalment. The lender may recover post-judgment interest only if he has the benefit of an independent covenant by the borrower entitling him to recover such interest. There is nothing to preclude inclusion of such a covenant in a regulated credit agreement, unless it falls foul of the fairness requirement in the regulations.

10 In November 2007 the defendant’s senior management finally conceded that the agreements which they purported to be “true copies” were in fact created from accounts that the claimant had never signed or agreed to, and that the only account relevant under the Claimant’s liability is the judgment account, in addition, on the 2nd April 2008, the Defendant finally conceded that they have no contractual entitlement to apply such interest and that the accounts were set up incorrectly,

 

11 I therefore conclude from evidence submitted that the defendant’s continual processing of incorrect data is both unlawful and unwarranted and breaches principles set out in the Data Protection Act 1998

 

12 Furthermore their prolonged and repeated refusal to admit their conduct has caused me and my family, as well as mental distress, considerable time, money & effort in trying to prove my case

 

Summary

13 in summary it is the claimant’s contention that the defendant, in the absence of a true copy agreement, did reconstruct by means of conjecture an unrelated copy agreement from incorrect data which the defendant continued to claim for some time was a true copy when it was not contrary to law, and further submits that this was an act of misrepresentation committed by the Defendant made with the deliberate intent to deceive the Claimant into believing it was in fact his lawful agreement and that he was legally bound by it.

 

Breaches of the Data Protection Act 1998

 

14 The first principle of the Data Protection Act 1998 requires that personal data is processed fairly and lawfully. To comply with this principle the Defendant must have satisfied at least one of the conditions set out in Schedule 2. It is understood that the Defendant is seeking to rely up on the sections set out below contained in their Defence. The Claimant wishes to emphasise the word “performance” contained in schedule 2 (a) as opposed to the Defendant’s use of the word pursuant.

 

2 The processing is necessary-

(a) for the performance of a contract to which the data subject is a party…

 

6 (1) The processing is necessary for the legitimate interests pursued by the data controller…

 

15 In relation to the Defendant’s claim that the conditions above pursuant to Schedule 2 (a) have been satisfied, the Claimant can only assume that the bank’s reliance must be based on the fact that the contract is performing post judgment. However, if this is the case, then there must be a separate covenant contained in the Claimant’s agreement/agreements allowing for this. In circumstances where no covenant exists it is plain and obvious that there cannot be a performing contract post judgment. In any event, and for the avoidance of doubt, the Defendant terminated both agreements prior to obtaining judgment.

 

16 It is not sure what legitimate interests the Defendant seeks to rely up on in respect of the continued processing of the Claimant’s accounts post judgment. It is not acceptable for the bank merely to claim that it has “entitlement to process data relating to such matters”. The Defendant must provide a legal basis for processing said accounts independent of the judgment account. In any event, in order to rely on the "legitimate interest’s condition" the data subject must be given an opportunity to object/consent as the rights of the data subject "over ride" those of the data controller.

 

17 Furthermore, Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

 

18 Further to the foregoing paragraph and in addition to failing to satisfy the requirements set out in schedule 2. It is submitted that the Defendant has contravened the First principle by appropriating the Claimants payment contrary to section 81 Consumer Credit Act 1974. It is further submitted that processing data in accordance with significantly different terms and conditions to what the Claimant agreed to is unlawful and unfair, and contrary to section 93 Consumer Credit Act 1974,

 

Section 93 Interest not to be increased on default

The debtor under a regulated consumer credit agreement shall not be obliged to pay interest on sums which, in breach of the agreement, are unpaid by him at a rate—

(a)Where the total charge for credit includes an item in respect of interest, exceeding the rate of that interest,

(b) in any other case, exceeding what would be the rate of the total charge for credit if any items included in the total charge for credit by virtue of section 20(2) were disregarded.

 

19 The Claimant submits that his accounts have incurred further interest in addition to the sum of interest contained in the total charge for credit stipulated in the Claimant’s loan agreement. For the avoidance of any doubt the Court granted Judgment for the principle sum together with the interest contained in the total amount payable set out in the agreement.

 

20 It is further submitted that the Defendant’s processing is unfair by allowing compounded interest to accumulate to a greater extent on one account, whilst at the same time crediting the Claimant’s monthly payment to another account which has built to a credit of over £3000, contrary to sec 6 (2) The County Courts (Interest on Judgment Debts) Order 1991

Appropriation of interest

 

6 (2) Money paid by the debtor in respect of any judgment debt shall be appropriated first to discharge or reduce the principal debt and then towards the interest.

 

Fourth Principle

 

 

“Personal data shall be accurate and, where necessary, kept up to date”.

Data are inaccurate if they are incorrect or misleading as to any matter of fact.

The Act provides guidance in interpreting this Principle as follows:

The Principle is not to be taken as being contravened because of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where:-

(a) taking account of the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) If the data subject has notified the data controller of the data subject’s view that the data are inaccurate, the data indicate that fact.

 

21 On the 24 April 2006 the Defendant advised Rotherham citizen advice bureau (case no 44218307) that interest was being applied to the Claimant’s account in “error” and that from the stated date above interest would be frozen and all previous interest chargers removed from the account.

 

22 The Claimant contends that the Defendant has totally disregarded this Principle by failing in its obligation to comply with it, and correcting the inaccuracies after being advised by the citizen advice bureau and later by the Claimant’s Honorable MP John Healey who also had notified the Defendant’s senior management of those serious inaccuracies in August 2007.

 

23 The Claimant further submits that the Defendant owed him a duty of care to amend the inaccurate data as soon as was reasonably possible, and that in not doing so was again in breach of the Fourth Principle and assumed that because of their position need not abide by the statute of the Data Protection Act 1998 the Claimant submits the Defendant abused that position.

 

The sixth principle

 

A person is to be regarded as contravening the sixth principle if, but only if—

(a) he fails to supply information pursuant to a subject access request under section 7 of the Act, or

(b) he contravenes section 10 by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section, or

(d) he contravenes section 12 by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section.

 

24 The Claimant contends that he has given a valid notice pursuant to both section 10 and 12 of the said Act, It is submitted that The Defendant’s failure to adhere to the statutory timescale of 21 days is a contravention of the sixth principle. Furthermore, the Claimant has a contemporaneous recorded electronic record which supports and verifies that the Defendant received such notice. It is submitted that the Defendant is being perversely and deliberately untruthful to assert to the contrary.

 

Submission to the Court

 

25. It is averred that the Defendant’s continued unlawful processing of incorrect data as well as their unconscionable behavior has led directly to the Claimant suffering severe distress resulting in financial loss and that pursuant to section 13 of the Data Protection Act 1998 the Claimant is entitled to compensation for the damage and distress that has been caused to him

 

26. The Claimant claims his right to claim compensation by virtue of the following section of the Data Protection Act 1998:

 

Right to Compensation (section 13) of the Data Protection Act 1998

 

An individual who suffers damage, or damage and distress, as the result of any contravention of the requirements of the Act by a data controller, is entitled to compensation where the data controller is unable to prove that he had taken such care as was reasonable in all the circumstances to comply with the relevant requirement.

 

“Damage” includes financial loss or physical injury. Unless processing is for the “special purposes”, (as to which see below) compensation is not payable for distress alone. If the individual can prove that damage has been suffered, the Court may award compensation for any distress which has also been suffered by reason of the breach of the Act

 

Conclusion

 

In view of the full facts and compelling documentary evidence submitted, the Claimant believes he has every chance of success and therefore, respectfully asks the court to allow the claim to proceed to a full hearing where the court can examine in detail the Claimant’s case. Notwithstanding the Defendant’s breaches as outlined above, the Claimant reserves the right to plead further for breaches of the Second, Third, and Fifth Principle of the said Act.

 

This Skeleton Argument has been prepared by the Claimant who is a Litigant in Person.