car2403 -v- o2 (& Wescot DCA)(Default removal)

[Penfold92]

1000th post...yippeee

[Blossomandebony]

Hi, Car,

 

Just skimmed through the last few pages and can't believe how O2 are still sticking to their defence! They're obviously trying to hoodwink the judge with any banal argument they can muster, it seems to me.

 

Do you know if their 'Witness,' Ian Roy, will be atending on Friday? Have they asked you to sign anything that says you accept his statement and he need not attend? If not, why not phone O2 and ask that their star witness attend in person? I'm thinking aloud here but surely you should have the right to ask the judge to question someone who has questioned your motives in such an impolite and cack handed manner? If they refuse to let him attend, might they be breaking any court rules? At the least, you could tell the court of his refusal to attend . . .

 

And anyway, what about your rights to privacy? They've invaded your blog without permission and are making all sorts of assumptions about you! Sounds bizarre.

 

Lots of luck, by the way!

 

BAE

[car2403]

I was thinking of summonsing the guy, but, to be honest, there's little value in that anyway, I think. I don't think they want him attending anyway - its on the small claims track, so they won't get much value back in paying his expenses to get there.

 

The Judge (whether or not its the same one as last time, fingers crossed though!) will see right through this, IMHO. If he doesn't, I'm happy to spend the 2 hours assigned for the hearing telling the Judge just how wrong his statement is.

 

I re-read and re-read it yesterday and I still can't see where their legal argument is. Some assumptions and accusations have been thrown around about me personally, but there is actually no substance whatsoever to their overall defence. Now, compare that to my claim and submissions and you'll see a whole new ball game there - remember, folks, I'm the litigant in person here and O2 are the professional legal team on (presumably!) high flying salaries.

 

If they do turn up, they'd better try to recover some of their position - if not, this will not only be very humilitating for their representative, but it could be quite damaging to their overall reputation. After all, 2,500 people have already seen this thread - how many of them are prospective/current/past customers and how will they react.

 

I may even get the local press involved, if there is no movement next week. Its all an extra string to my bow, so to speak.

[joesoap]

Which court are you in on Friday?

[car2403]

Morpeth.

 

A bit too far North for someone from Slough?

[car2403]

The Companies Act 1985 says;

 

22].—fl) Every company shall keep accounting records which are sufficient to show and explain the company’s transactions and are such as to—

(a) disclose with reasonable accuracy, at any time, the financial

position of the company at that time, and

(b) enable the directors to ensure that any balance sheet and profit

and loss account prepared under this Part complies with the

requirements of this Act.

(2) The accounting records shall in particular contain—

(a) entries from day to day of all sums of money received and

expended by the company, and the matters in respect of which the receipt and expenditure takes place, and

(b) a record of the assets and liabilities of the company.

222.—(]) A company’s accounting records shall be kept at its registered

office or such other place as the directors think fit, and shall at all times be

open to inspection by the company’s officers.

(5) Accounting records which a company is required by section 221 to keep shall be preserved by it—

(a) in the case of a private company, for three years from the date on which they are made, and

(b) in the case of a public company, for six years from the date on

which they are made.

This is subject to any provision contained in rules made under section 411 of the Insolvency Act 1986 (company insolvency rules

 

As O2 have admitted in the DPA SAR response that they won't (or can't) supply information relating to calls made, text messages sent, etc, is that a breach of their obligations?

 

If the Court "were" to ask for the details of how the bills were made up, to prove the default of the account by substantiating the accuracy of the bills produced, and O2 weren't able to produce it, that would help my case wouldn't it?

 

I've also found this, which is where others have queried this in the past;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/123884-r-subject-access-request.html

 

As you can tell, I'm preparing for this hearing in such minute detail

[car2403]

The crux of O2's defence is that I consented to the sharing of my data with third parties. They claim that, having placed the order by phone, the terms and conditions were dispatched with the delivery. I then had 14 days in which to cancel, under distance selling regulations. I didn't cancel the agreement, so they also claim that I must to be taken to have agreed (therefore consented to sharing my data) with them.

 

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.

 

What does this mean for me? O2 cannot infer consent/agreement to these terms by "non-communication". However, they may be able to use this to "legitimately process" my data under schedule 2 of the Act, despite my lack of consent. They can only do so, though, if they offered me the option of objecting prior to the processing taking place - as they didn't discuss the T&C's and/or them processing/sharing my data prior to receiving the phone, I wasn't given that opportunity.

 

I didn't consent to the processing, then...

Edited May 26, 2008 by car2403

[joesoap]

Morpeth.

 

A bit too far North for someone from Slough?

 

That's a shame, would have popped in on the way to s. gosforth if it had been in toon!

[car2403]

That's a shame, would have popped in on the way to s. gosforth if it had been in toon!

 

All the gory details will appear here anyway, so nothing missed there marra!

[car2403]

I'm now in receipt of O2's skeleton argument for both cases (mine and my OH's)

 

There's no need to post them up, as they don't state anything new nor does it resolve some of the inconsistencies I've already pointed out on this thread.

 

Friday here we come then...

[Penfold92]

How come they have sent them so late? Surely supposed to be 14 days prior to the hearing? Standard court orders?

[car2403]

Their witness statements and exhibits should have been received by 16 May - they arrived on 24 May. Their skeleton argument should have been received yesterday - it arrived by email yesterday morning.

 

I have proof my statement/exhibits and skeleton were all received on 15 May.

 

I would bring this up on Friday, but I don't want the Judge adjourning the hearing because they haven't complied with directions, so I may not. This can't drag on for any longer.

[Alphageek]

Good luck for Friday.

[mcuth]

Good luck for tomorrow Chris - hope it goes well, can't wait to read your update.

 

Cheers

Michael

[Penfold92]

Yup, good luck, but you know your case inside out and in this particular case I would definately not want to be the duty sol turning up on this one...

 

Hope you get a nice judge!

 

Prabs

[sortingitout]

Cant wait to read tomorrows update,

 

Good Luck

[car2403]

Thanks all.

 

Actually, Penfold, the solicitor that is coming is the same one that turned up last time - even the blinking hearing has been arranged around her travel plans! She was really nice last time - almost to the point of agreeing with my case, while staying profressional about it - so can't see that changing this time. Just hope the Judge is the same or, or as nice, on this occassion.

 

Despite this amount of understanding and preparation, I still can't help being a little nervous - and that's despite my "previous" Court appearances to boot!

 

I'm not sure what it is, but my subconscious has obviously been working overtime on this, so I do think I'm fully prepared.

 

I may not be able to post an update here until late tonight, or early tomorrow morning. It's not because I'll be out celebrating, (or it may be, if I win!) but I do have plans for the whole day that mean no internet access. I know you're going to be chewing your arms off waiting for the update, so I wanted to set some expectations first.

 

[pt2537]

Good Luck Chris, give em hell mate

[Penfold92]

The nerveousness is good and you know your case best so let them try to squirm out of it and just stick to the points of Law and you'll do yourself proud!

 

Over for weekend too so will check up on Sunday night

 

Prabs

[fergal71]

goodluck!!!!!!!!!

[car2403]

Ok, the update is, I can't give an update!

 

I really, REALLY need someone from CAG to contact me before posting more - for why I can't say. If someone (not sure if that's a site helper, moderator, admin or whatever) can PM me, I can give a detailed update of this morning of what I would like to see happen going forward.

 

Putting it bluntly, without the support of CAG, this won't progress on from here.

 

:o

[fergal71]

mysterious... can you say if positive or negative result?

[car2403]

mysterious... can you say if positive or negative result?

 

No, sorry

[car2403]

No, sorry

 

This "embargo" of information won't last for long - as soon as I can share more, I will, you can be sure of that.

 

[mcuth]

Hmmm, *very* mysterious!

I've reported your post to bring it to the attention of the site team matey...

 

Hope it's good news

 

Cheers

Michael