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

[car2403]

After reading a LOT about Default removal attempts, I've heard in other threads that o2 defaults are notoriously difficult to challenge as agreements with them aren't covered by the CCA and Data Protection Act in a way that makes it easy to get them removed.

 

I had 2 accounts with o2 that ended up having defaults applied to my credit file. (1 of them isn't in my name, but for arguments sake, lets say it is so this doesn't get confusing!)

 

On reading those other threads, most people suggest contacting o2 & the DCA (Wescot, in both of my cases) offering reduced settlement that is conditional on the default being removed. Clearly settling the account without asking for the default removal reduces the chances of getting the removal as there is no incentive to them.

 

So, I've sent o2 this letter;

 

Dear Sirs,

 

Offer of reduced settlement, conditional on default removal; Account XXX

 

You will be aware that this account is currently being managed by Wescot Credit Services, due to being passed to them for collection by yourselves. I have sent them a copy of this letter, also.

 

Having recently reviewed my personal financial position, along with a copy of my credit file obtained from Experian, I was concerned to note that a “default” has been recorded against this account in my name – this is a situation that I would like to remedy as soon as possible.

 

I would like you to consider acceptance of a payment in reduced settlement to clear this debt – as part of this settlement, I would like to negotiate the removal of the default on my credit file.

 

The reason why this account ended up in this position is that I suffered severe financial difficulties due to being overcommitted – this was due to several unavoidable personal problems that I had at the time, including a period of absence from work due to sickness and a reduced income. It has never been my intention to avoid payment.

 

I am willing to negotiate settlement with all my outstanding creditors with the aim of avoiding such situations again in future. I am also further trying to improve my credit file, as I have a very high rate of interest being applied to my mortgage account, amongst others, that are a direct result of adverse credit, such as this account.

 

To clarify, I am currently in a position to consider a reduced offer from you to settle this outstanding balance. As part of that settlement, I would like you consider removal of the default marker on my account for the reasons outlined in this letter, as a gesture of goodwill. If you can make a satisfactory offer of reduced settlement and agree to remove the default marker, I would be very keen to consider such an offer at this time.

 

I look forward to hearing from you very soon.

 

Yours faithfully

 

I also cc'd Wescot and sent them this as a cover;

 

 

Offer of reduced settlement, conditional on default removal;

 

O2 A/C; XXX – your reference; XXX

 

 

 

 

Please find enclosed a copy of a letter that I have today sent to your client, O2 (Online) Limited, for your information.

 

Please note that my financial situation has not changed, so this is not an indication that I wish to review my monthly payments to you under the current agreement – I have recently successfully recovered illegal bank charges that have been applied to several accounts that I hold, which has allowed me to make this offer of reduced settlement.

 

This offer is conditional on O2 agreeing to remove the default they have entered against me – if this cannot be negotiated, I will be making similar offers to my other creditors with larger balances in an attempt to both reduce my current outstanding indebtedness and improve my credit rating, therefore improving my overall financial situation. If this is successful, I will review my situation again further and contact you again – however, this is my initial approach, of which I wish you to be informed.

 

Yours faithfully

In response to this, I've received 2 of these letters from Wescot - 1 for each account;

 

 

My question is this - is the offer for reduced settlement conditional on default removal accepted? If it is, I will happily pay these amounts (thanks to some CAG Bank Charge reclaims!) to get these defaults off my credit file.

 

Personally, I want to write to Wescot to say something along these lines; (I have the same letter drafted for the other account with the right settlement amount)

 

 

Offer of reduced settlement, conditional on default removal;

 

O2 A/C; XXX – your reference; XXX

 

 

Thank you for your letter dated 20 August 2007, acknowledging my offer of reduced settlement.

 

I note from your letter that no reference is made to the removal of the default from my credit file up on paying the amount of authorised settlement – namely £16.56.

 

Can you please, therefore, confirm in writing that upon payment of £16.56 being received by yourselves that the default entered by o2 will be removed from my credit file? Please note that simply marking the default as “satisfied” is not acceptable, and that I seek full removal of the default.

 

On receiving this confirmation, I will consider your offer further and contact you in due course.

 

Yours faithfully

 

If they haven't even considered removing the default they will just reply saying "no" and I'll have no chance to get it removed. If they have, then fine, all is well - but, if I send this I'm asking a question... if I don't I could challenge that by having my "request for settlement authorised", I could argue that they've "agreed" to remove these defaults on making these payments.

 

Any advice?

[car2403]

B U M P

 

I'd really appreciate some advice on this one, as I don't want to miss out on negotiating a settlement...

 

[car2403]

I'm sending this off today;

 

Offer of reduced settlement, conditional on default removal;

O2 A/C; XXX – your reference; XXX

Thank you for your letter dated 20 August 2007, acknowledging my offer of reduced settlement.

I note from your letter that no reference is made to the removal of the default from my credit file up on paying the amount of authorised settlement – namely £16.56.

Can you please, therefore, confirm in writing that upon payment of £16.56 being received by yourselves that the default entered by o2 will be removed from my credit file? Please note that simply marking the default as “satisfied” is not acceptable, and that I seek full removal of the default.

On receiving this confirmation, I will consider your offer further and contact you in due course.

 

Yours faithfully

[car2403]

No reply to my letter.

 

I'm thinking of sending payment to settle these debts, with a cover note stating what my terms are and saying "if you cash these cheques in settlement, I will assume that you are agreeing to my default removal terms and look forward to hearing from you in confirmation of such removal within 14 days of the accounts being settled".

 

Any thoughts on this, or how to move on?

[car2403]

I've received a letter from Wescot about one of the accounts, but not the other, stating that the dispute raised has been recognised and that no further collection activity will take place on the account until the dispute is settled.

 

Confused now, as I haven't raised a dispute - and they've still failed to reply to the letter I sent on 30/08?

[car2403]

Sod this sitting waiting around for them to get back to my - surely if Wescot have raised a dispute, I should be dealing with o2 again now?

 

Anyway, I'm writing to o2 in the same terms (default removal and I'll agree to settle early) to see what they say.

 

This may be tougher than I thought!

[car2403]

Still no reply from O2, which is hardly a surprise really.

 

Looking at their latest terms and conditions, (I'm assuming they'll argue that I'm bound by the most up to date version, rather than the ones they had when I opened/had the account with them) they don't even have a clause to disclose information to the credit reference agencies? Links are available here;

 

O2 Privacy policy - Terms & Conditions - O2

 

and here;

 

Your airtime contract - Terms & Conditions - O2

 

Given this, would the Surleybonds s.10/s.12 Data Protection Act letters work?:

 

Defaults - a proposed method for removal and the full template letter

 

If this would work, I'd need to be prepared to go all the way to Court, due to a spineless regulator, for the reasons discussed here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html#post1086715

 

I'm going to send a DPA SAR off to see what information they do hold about me, along with that s.10/s.12 letter/notice.

[car2403]

Received a letter from Wescot regarding the smaller of the 2 accounts saying that, because of the dispute I've raised and their investigations, (I don't know what they are talking about! I only asked if they would remove the Default if I settled early!) they have passed the account BACK to o2 and will no longer be pursuing the debt.

 

o2 have until 30 October to respond to my s.10/s.12 notice and 10 November to respond to my S.A.R - (Subject Access Request). Not holding my breath either way, given past performance on responding...

[car2403]

Response from o2;

 

Dear car2403

 

Thank you for your letter 1st October 2007 and the accompanying Data Subject Notice of the same date requesting that 02 desist from processing your personal data by virtue of providing information relating to your mobile account to credit reference agencies. I note that you are concerned that the continued processing of data in this way is in contravention of the data Protection Act 1998.

 

According to 02’s records there is still a balance owing on your mobile account. If you believe that this is in error and that you can show that you have paid your account in full, please forward evidence of your payment and we will update our records. If you dispute the amount that is actually owed by you, please contact us to explain why. In either case, please contact:

 

02 Customer Relations

P0 Box 202

Houghton Regis

LU6 9AG

 

You may wish to note that a section 10 notice (under the Data Protection Act) does not apply where the processing is necessary for the performance of the contract to which the data subject is a party. There clearly was a contract being performed when you took service under your airtime contract. This contract required you to pay consideration to 02 for the services; your obligation to pay under the contract is still outstanding. Accordingly, 02 has a right to continue to process your personal data to ensure performance of your contractual obligations under the airtime contract and we believe that this is warranted for the purposes of our debt recovery. Accordingly, we are unable to comply with your request to cease such processing.

 

I trust this response reassures you that 02 is not in contravention of the Data Protection Act in relation to this matter.

 

Yours Sincerely

Daniel Muckle

Compliance & Disclosure

 

 

 

My response;

 

I refer to your letter dated 18 October 2007.

 

Your response baffles my understanding somewhat, as you have failed to reply with your justification against this argument;

 

1) The letter you have sent me is a standard response to this type of request and has failed to take any of the queries raised with proper consideration.

 

2) You have failed to justify your continued pursuance, processing and disclosing of my personal information, which was specifically referred to in my letter.

 

3) Your argument that the account still has an outstanding balance, thereby allowing you to continue to process my data in this way due to “debt recovery” has no basis in law – if you are able to provide legal authority for this contention, I will be pleased to see that in your reply. I refer you back to my letter dated 1 October, which outlines my argument that O2 neither had my consent to process in such a way, or that any consent provided was ceased when the agreement was terminated – that cessation of consent repeated within that letter also.

 

4) You have, therefore, failed to comply with my Statutory Notice under s.10 & s.12 of the Data Protection Act 1998.

 

I find this situation totally unacceptable. Therefore, take notice, that I require your full response to my previous letter as outlined – I am happy to extend this period by 7 days to allow you time to respond, in which you must either comply with my request or provide your legal basis (please note that a simple denial of my argument does not suffice) before 29 October 2007 to avoid the action I have outlined in that letter.

 

Yours sincerely,

[car2403]

Next reply from o2;

 

In response to your letter dated 22 October 2007 please find enclosed a positioning statement from the ICO with regards to credit agreement data sharing

 

In which they've enclosed this, taken from the ICO website;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

So, where in that document does it answer the questions I've asked?

[car2403]

I've sent a Final LBA on this one

[orfoster]

Very interested in this one. I expect you have read my thread on O2. I have now complained to the Information Commissioner as they did agree to remove my default on the phone. They then denied it after I settled to I got a SAR back and sure enough in the notes I think it mentions it about 8/9 times that I have agreed only if my default is removed which was agreed. Wrote in and got a snotty reply, tried Data Protection S.10 letter and got no where and they have simply ignored further letters so I complained to ICO, did that about a month ago and still haven't had anything back.

[car2403]

I did consider the ICO, orfoster, but considering how they've handled other queries like this - (some of them mine in other threads - and I did have a read of yours before starting) plus the fact that O2 are relying on the ICO's opinion AND pointing me to that office to make a complaint - I think I'm just going to go straight to Court for enforcement of my s.10/s.12 Notices. I doubt they would want me to complain to the ICO if they thought I'd have any chance of having him backing my arguments.

 

Incidentally, O2 are in breach of a DPA SAR I sent them (with recorded delivery) as of 02/11/07 - which means I will be complaining to the ICO for non-compliance. I have to assume that they have no form of agreement (even though one probably doesn't "exist", but it will be interesting to see what evidence they can produce if this does go to trial) as they've failed to provide any response.

[noimagination]

Next reply from o2;

 

 

 

In which they've enclosed this, taken from the Information Commissioners Office website;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

So, where in that document does it answer the questions I've asked?

 

I am having the same argument with Vodafone, got the same response too, as I see it is in the terms and conditions you refer to above it states

 

"This right to change your mind about your Service Agreement does not applyif you are an existing customer.

 

And

 

If you cancel this Service Agreement under paragraph 11.3,

 

 

The document they sent you clearly refers to Credit agreements. you would think if it applied to any think els it would say? no? ICO after all.

 

Thats how I see it.

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/70464-mobile-phone-companies-consumer.html

[car2403]

I agree with you, noimagination - it is interesting the responses others have gotten when they've tried to send a s.77/s.78 request under the Consumer Credit Act 1974, where O2 state "the agreement is not regulated under the CCA as it's a Service Agreement". They can't rely on that on one hand and deny it when challenged on the other!

 

Even this Service Agreement contains no reference to sharing of data, from what I can see. (I may be wrong) Even if they can show there is a term, the ICO themselves have said the consent can be withdrawn.

 

So, we're back to the "continuing to process info" after the contract is terminated argument - I can't honestly see them turning up at Court, let alone Defending! (and I can't be bothered with the ICO any more!)

[noimagination]

Mate I'me with you on this, What are the implications if it go's to court and you loose? any one no?

 

GOOD LUCK!

[car2403]

It will probably be assigned to the small claims track, so there aren't any implications really - apart from losing and not getting the fees back.

 

It will obviously cost them to Defend/attend the hearings and prepare their arguments - I imagine they'll remove the Default in settlement of the claim, if they have any sense.

 

Sounds like I have nothing to lose, IMHO.

[car2403]

Latest reply from Mr. M;

 

18 October 2007

 

Account number: XXX

 

Dear car2403

 

This is a response to your correspondence dated 1 November 2007.

 

As per Legal and Regulatory there is no requirement for 02 to generate or hold a Notice of default under the terms of the Consumer Credit Act 1974 (fixed term) as we do not offer deferred payment terms the terms & conditions clearly state the 14 day payment term and once a bill is left unpaid outside this time scale the loading to Experian/Equifax will show as arrears.

 

Although the definition of “credit” under the Consumer Credit Act is very wide and includes a cash loan, and any other form of financial accommodation, according to the relevant case law the essential element of credit for the purposes of the CCA is a contractual entitlement to defer payment of a sum which would otherwise be due.

 

Clause 5.3 of 02’s Pay Monthly Consumer Service terms & conditions (April 2006) specifically states that “You must pay your monthly bill by the date stated on the bill.” This makes clear that customers are not given time to pay their bill. Therefore no credit for the purposes of the CCA is being provided under this contract.

 

02 customers therefore have not been provided with credit within the meaning of the CCA.

 

Yours Sincerely

Daniel Muckle

Compliance & Disclosure

 

There are a few issues with this now;

- All his letters are dated 18 October, despite replying to letters dated after that

- He's assuming that I'm referring to the CCA in my latest letter - I think that's because I mentioned this in my LBA;

 

Please, therefore, take note that I intend to issue a Court Claim against O2, within 7 days of your receipt of this letter, to seek;

§ Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

§ An order from the Court under s.14(1) of the Data Protection Act 1998 for the removal of the Default data and any other prejudicial information from all credit reference agencies;

§ Costs, at the discretion of the Court

 

Now, I know this isn't relating to the CCA, but he seems to think that it does!

 

- I think these are all standard letters and I'm not going to get anywhere!

 

The Data Protection Act S.A.R - (Subject Access Request) has now being totally ignored - now 40 days since confirmed/recorded delivery of the request so off goes an Information Commissioners Office complaint form regarding none compliance with the S.A.R - (Subject Access Request) and a secondary LBA saying I will take Court action to enforce their compliance within 7 days if they don't comply with their Statutory obligations!

 

Looks like I'm issuing 2 claims against O2 next week then... Oh, the joy!

 

BTW - this is confusing, but stick with me... I have an account with O2 (this thread is querying) but there is also a 2nd account that my other half has with the same problems - this means that I've been updating this thread with response to my letters to them, but they have totally ignored my other half's letters.

 

So, that will be 2 x complaints to the ICO submitted today, 2 x LBA's for DPA SAR disclosure and 2 x actions to prepare for Default removal.

 

Sorry if that's confusing, but I thought I'd better make it clear I'm fighting the same issues on the same front with 2 claims - not just 1!

[orfoster]

Almost the same things that I had with my claim. I may well be following you in the next few weeks once my bank claims are either stayed or won.

[car2403]

Ok, so I've worked on my POC - any feedback?;

 

DPA SAR POC; (x2)

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. The Claimant had an account number ********** ("the Account") with the Defendant which was opened on or around 30 November 2002

3. On 30 September 2007 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

4. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage.

6. The damage caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £100.

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

9. Damages and costs within the discretion of the Court.

I believe that the contents of these particulars of claim are true

 

I kept it at £100 because I'd struggle to show damage beyond that, IMO.

 

Default removal POC; (x2)

 

1. I, the Claimant in this case, am a litigant in person and I make this particulars of claim statement from my own knowledge and experience.

 

2. The Claimant held a Mobile Telephone Service Agreement with the Defendant between 14 July 2003 and 24 January 2005, numbered **********, in which it is purported by the Defendant that it was agreed between the parties that the disclosure of personal data in relation to the contract was consented to. The Claimant argues that this consent would extend only to such time as the conclusion of the contract.

 

3. The Claimant, having conducted an audit of his Credit Reference Files held with 3 Credit References Agencies, discovered that the Defendant had recorded a “Default” against the Claimant in relation to this agreement on 24 January 2005, with an original Default balance of £379.00.

4. On 30 September 2007, the Claimant made a Data Subject Access Request, enclosing the Statutory fee of £10.00, under s.7 Data Protection Act 1984 [“DPA 1998”] to the Defendant, requesting, specifically; (but not exclusively, as the Claimant required access to all information relating to him under the DPA 1998) requesting;

4.1. Statements of all payments made and received on each account

4.2. Details of all charges for unpaid items and fees charged for managing each account.

4.3. Copies of all original agreements for each account held in [the Claimants] name, along with details of the relevant terms and conditions referred to in the agreement, in relation to each account.

4.4. Details of all manual intervention that has taken place on accounts held in [the Claimants] name, with documentary evidence of such.

4.5. Details of logic involved in any automated decisions you made about [the Claimant], or [the Claimants] accounts with you.

 

5. The Defendant has failed to reply to this request within the prescribed period of 40 days. (11 November 2007) The Claimant wrote to the Defendant on 10 November 2007 outlining this failure. The Defendant failed to reply to this letter, so the Claimant issued a complaint to the Information Commissioner’s Office, (ICO) due to the Defendant’s non-compliance with it’s obligations under the Data Protection Act.

 

6. At no time did the Claimant grant permission, either expressly or implied, for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract.

 

7. It is the Claimant's contention that the Defendant's perceived right to arbitrarily choose to extend the length of that contract without the Claimant's knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999).

8. The Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimant's contention that the defendant is in breach of both the contract itself and the DPA 1998, by the Defendant's continued disclosure of personal data to third parties – namely, the 3 major Credit Reference Agencies, amongst others.

9. The Claimant, therefore, puts the Defendant to strict proof of the contractual agreement between both parties in relation to the Service Agreement, inter alia, allowing the Defendant to store, process or disclose any personal data of the Claimant beyond the contractual termination period and to which terms and conditions were included as part of that agreement.

 

10. No admissions are made by the Claimant as to the incorporation of any term into the contract between the Claimant and the Defendant purporting to entitle the Defendant to store, process or disclose any such personal data.

EFFECT OF FAILURE TO DEFAULT THE CLAIMANT CORRECTLY;

11. Failure of a Default to be accurate not only invalidates the Default (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

DATA PROTECTION ACT 1998:

 

12. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. (Herein referred to as DPA 1998)

 

13. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to these alleged agreements to be wholly unwarranted and unlawful.

 

14. The Claimant is afforded principled rights under the DPA 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

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

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

15. In this case, the Defendant is processing data without consent. Consent in this case meaning the lawful right to process data, with permission, with the Credit Reference Agencies – that information being “publicly available”.

 

16. The claimant asserts therefore that this Default amounts to a material breach of the fourth Principle of The Data Protection Act 1998.

 

17. The Claimant, therefore, commences proceedings against the Defendant under the Data Protection Act 1998 for the removal of the Default information.

 

18. This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

19. The Claimant wishes to emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more, and also emphasises the term "shall not be further processed".

 

20. After seeing other cases being handled, the Claimant is aware that Financial Institutions and Credit Reference Agencies are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admit that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.” In this case, no such contractual provision exists, so reliance on any contract should fail under the DPA 1998.

 

21. After scrutiny of all the relevant legislation, including the Consumer Credit Act (as amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. the Defendant) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

22. In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

“10. - (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.”

23. However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

“10. - (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.”

To paragraph (b), I can only presume that the Defendant has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves the Defendant with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where the Defendants Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. These exemptions are, in full, below:

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

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

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

It is the Claimants contention that the Defendants supposed right of obtaining an exemption is not contained within any of these paragraphs – taking each in turn with notation to give a clearer explanation;

1. The data subject has given his consent to the processing.

That consent does not exist. Where the Defendant can show that the Claimant did consent to the processing, the Claimant alternatively argues that such consent was terminated upon termination of the contract. The Claimant has further advised the Defendant of withdrawal of consent, in any case, in his s.10/s.12 DPA Notice.

2. The processing is necessary-

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

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

For both (a) and (b), there is no contract in existence at this time.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

40. According to the Information Commissioners Office (ICO), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy. These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

The three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

4. The processing is necessary in order to protect the vital interests of the data subject.”

42. With reference to the ICO again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. The Claimant does not believe that this case could be described as anything like a matter of life or death.

24. So, it is clear to see that there is neither statutory provision permitting the Defendant to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that the Defendants is relying on the Common Law – as already discussed, above, no such contract is in existence at this time.

 

25. The Claimant argues, therefore, that due to the non-agreed disclosure of personal data to third parties by the Defendant, without express written permission from the Claimant, that the Defendant has committed a criminal offence under s.35 DPA 1998.

 

26. The recording of “Default” information by the Defendant, without consent, against a credit file without having a consent, or any processing by the Defendant of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

27. The Claimant requires that the Defendant cease from processing such data, or else that the Defendant does not begin to process any personal data of which the Claimant is subject insofar as that processing involves the communication or passing of personal data of which the Claimant is the subject to any third party and insofar as the said data relates wholly or in part to the implementation by the Defendant of alleged defaults or contractual breaches, or breaches contrary to The Common Law.

 

28. The Claimant argues that the processing or continued processing by the Defendant of the said data will affect the Claimants credit rating and reputation and cause substantial damage and/or substantial distress to the Claimant and other family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Claim would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

29. Additionally, the claimant requests an order from the Court under s.14(1) and s.14(3) of The Data Protection Act 1998 for the removal of the Default notices and any other prejudicial information from all credit reference agencies;

“14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

14. – (3) Where the court—

(a) makes an order under subsection (1), or

(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate,

it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.”

 

30. The Claimant further claims the Court fee of £65.

 

31. The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks;

31.1. Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

31.2. An order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies;

31.3. Costs, at the discretion of the Court

Statement of truth;

I, the Claimant, believe all facts stated to be true.

Signed,

[orfoster]

Wow, very long and looks good to me. £1000 I could actually see them awarding that to you as the damage the default has done to you. When are you planning on proceeding?

[car2403]

I'll be progressing with all 4 claims next week - they have until today to respond to the LBA's.

[car2403]

£1000 I could actually see them awarding that to you as the damage the default has done to you.

 

There is a legal precedent for pricing a Default in this way;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html

 

N1's prepared - 2 for D.P.A. S.A.R. enforcement and 2 for Default removal - these will be in the post to my local Court on Monday.

[tifo]

N1's prepared - 2 for D.P.A. S.A.R. enforcement and 2 for Default removal - these will be in the post to my local Court on Monday.

 

Good.

 

I need to issue a few N1's for unlawful defaults soon but mine are easier as the DCA has admitted to a breach of the Data Protection Act in writing and to the I.C.O, they just won't offer anything for the damage this caused me.

[car2403]

N1's prepared - 2 for D.P.A. S.A.R. enforcement and 2 for Default removal - these will be in the post to my local Court on Monday.

 

All 4 claims issued;

Issue date - 20 November

Served date - 22 November

Response date - 6 December