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

[fergal71]

bumping does anyone know what is happening suspense is killing me....

[car2403]

It's still a bit sensitive at this stage. I haven't had the update I wanted, which should happen soon, hopefully - once I have that, I'll share the updates with you.

 

[mcuth]

It's still a bit sensitive at this stage. I haven't had the update I wanted, which should happen soon, hopefully - once I have that, I'll share the updates with you.

 

 

Aaaargh!

/me stamps feet impatiently

 

Cheers

Michael

[fergal71]

bumping any news??????????

[car2403]

I'm nearly there... won't be long now...

[car2403]

Ok folks, I'm in a position to share the outcome with you now!

 

I was at a small claims track final hearing, which was listed for 2.5 hours. O2 did turn up, (same solicitor as last time) with 2 - yes, 2 - (count 'em, 1... 2...) witnesses! Quite why they needed them I wasn't sure, especially when one of them hadn't made a witness statement in advance!

 

When we went in to see the Judge, he immediately said that the claim wasn't going to be heard on that day! Not because the claim was over the small claims track (SCT) amount, but because the claim was "so complex" (his words) that it shouldn't have been listed on the SCT at all. He did say that it would probably take 2 days to look through all the evidence in sufficient detail, which is why 2.5 hours just wasn't sufficient. To be fair to the Court, there were over 5 reams of evidence between the 2 parties to go through!

 

The conversation between the Judge and O2's rep did take some time - they did make lots of references to the "white book", which looked like the CPR's but I couldn't be sure. The conversation was that the Judge wanted to reallocate the claim to the multi-track and refer it to the Commercial Court. Obviously, I objected, as I started this as a small claim and had never considered the cost implication of the complexity of the whole thing at the beginning.

 

The Judge said that there would be cost implications, if I should go on and lose, as I would have to pay O2's costs. (Probably in the region of £3k/£4k!) I couldn't really argue against reallocation/referral, as I haven't been through that before. The Judge obviously recognised that, so although he had decided to reallocate to the multi-track, he said he would refer the claim to a Circuit Judge for him to review the file and to make further directions as to where the claim would be allocated/heard. He said it was most likely to be referred to the Commercial Court, but he wasn't able to make that decision, hence the referral to a Circuit Judge who would have more experience in such issues.

 

O2 were obviously loving this, as they could see me "squirming". I was trying hard to hide it, sticking to the law behind the claim being completely straightforward and the facts not been in dispute - that didn't make a difference in the end though. The Judge did say to O2 that it didn't appear in their interests to continue with their defence, as I was "attacking their contract, a decision on which would millions of their customers and could put their business at risk". He also went on to say that he thought they should settle out of court, as it wasn't worth their while continuing. His decision on what to do was already made, but he said that we should have a conversation outside before deciding whether to continue. The hearing ended at this point.

 

O2's rep was going to leave the building, but I managed to get her attention and asked if we could have that conversation. O2 had sent a solicitor, with instructions to get the hearing on multi-track because of it's complexity, (an obvious gambit to get me to back down, IMO) along with these 2 "employees" - these people weren't introduced to me, but I'm assuming that one of them was "Ian Roy" (who had made their witness statement for the hearing) and another lady that wasn't referred to at all. When I was talking to the solicitor, I started by asking why they hadn't offered settlement on the basis of default removal - she said that O2 had received hundreds of complaints using the template letter that I started with (the Surleybonds s.10/s.12 Data Protection Act 1998 template) and that they were not prepared to remove any defaults as a result. It seems they may have done that in the past, but with the credit crunch, the price of credit and the state of the economy these days, O2 have made a corporate decision to push a test case through to get a binding decision on the issues in the claim. They also said that they had "issues" with the CRA's questioning their process of removing data "willy-nilly" - it sounded to me like O2 were being held to ransom by the CRA's, who had threatened to remove their ability to search credit files if they didn't stop removing accurate (or even inaccurate!) data because they were being challenged on it. I can't be sure, but that's what I read between the lines of what was said. The upshot of that conversation was that I said again that I hadn't prepared for the costs of continuing on the basis of the Judges' decision and that I had to rethink my approach while the Court decided how to deal with the file. I asked O2 if they would think "creatively" about this and asked them to consider making a "payment" without prejudice to the claim that covered the damage that I had/would suffer as a result of the default remaining on my credit file - they did seem pretty up for that, but the solicitor had to "take instructions" as she couldn't make a decision on that. Fair enough. I was just trying to be reasonable.

 

You'll see from the thread that it's incredibly detailed, even to the point of posting up all the correspondence I've had with O2, including without prejudice negotiations that have been going on. They did comment that they had stopped those discussions because of the interest in CAG and they couldn't be seen to settle my dispute ("dispose", they called it) because of the interest I was getting. I did say that I was open to further discussions, which I agreed to keep off the thread, for this very reason. Any settlement agreement wouldn't have now included default removal, though - they made that more than clear.

 

The Judge did mention that he thinks it should be a test case, because it's testing O2's commercial contract with it's customers, the relationship between O2 and the CRA's, the whole CRA process itself and has wider implications on the ability of lenders to process/store data, as well as questioning some of the Information Commissioners Office's opinion on how the Data Protection Act should be applied.

 

Put simply, my financial situation just won't allow me to risk potential bankruptcy should I go ahead and continue - O2 clearly knew this and, perhaps, even relied on it. They were well aware of the CAG interest and even asked me if CAG would fund the case as a test case! I know from the forums that there is loads of interest in my/others' cases on the same issues already.

 

As a result of all this, and in the absence of any communication with O2, I wrote to the Court (before the Circuit Judge had a chance to review the referred file) to say that, should the claim be reallocated off the SCT, that I would, regrettably, have to discontinue. I made it clear that the reason was the risk of costs, not that I didn't think I had a case against O2!

 

I contacted the Court today, who have confirmed that the claims (both, one mine, the other my OH's) have been "settled". I asked the Clerk to check the file, as it wasn't settled it was discontinued. When she came back, so said the file shows as discontinued, not settled, but the computer was wrong. This could be an important distinction for me in the future - the reason why I can't share with the vast majority of you. (There is a tiny, tiny minority that understand why, but my lips are sealed - as are theirs! Please don't press me for more, or try to find out who knows what apart from me, as we're working as a team behind the scenes and they are sworn to secrecy on penalty of death!)

 

Anyway, this particular battle is over... for now.

 

I am planning on writing to my MP about this, as the whole issue is based on "industry standard processes" that the CRA's have implemented without being regulated or checked in any way and they are clearly (by avoiding claims such as mine) not happy at being queried in Court. I think the Government need to step in and sort this out, but I can't see that happening in the current climate. I also plan to get some local newspaper interest, with the hope of perhaps "going national" with the story. The more the merrier.

 

I do think I can still give these people a headache, so on we go.

[volvodriver]

So yet again money perverts justice - this is a disgrace and I wish you luck in whatever it is you are now engaged in.

[yhs4260]

Well I would have liked to have contributed towards your costs, has a nail been put in the coffin? Come on, lets get some money together and put this test case to the test!

[Blossomandebony]

Seems like it was a stalemate, then Car, but superb effort, mate.

 

Once again MONEY overrides the overriding objectives, eh?

 

Good luck with the bid to "go national" on this - at this stage, bad publicity in the media is probably the only thing that O2 are scared of, (the court's certainly can't stop them, sadly).

 

BAE

[fergal71]

I would gladly put £1000 up if we take on the credit reference agencies.... and I am sure there will be many more willing to do the same..... we need precedent setting ... so come on CAG sort this case out>>>>

[foolishgirl]

Happy to donate for this too!

Car has more than turned the latch, can CAG push the door?

[car2403]

I have to say, I must immediately jump to CAG's defence on this one... I'm not just swinging the lead here neither.

 

The delay in providing an update on this thread was directly relating to action I was taking engaging CAG's team on my case. At that point, I was asking CAG to back my case all the way - to be absolutely fair to them, they were up for it, too.

 

I didn't want to share this on the thread, but I have nothing to lose now, so here goes anyway...

 

My claim was flawed from the start. That may come as a shock to some of you - I know it did to me. I can't (and I won't) share the technical reason why this claim was never going to win in a Court with you. We all know this forum is public and that companies read these threads. If you don't believe that, just read O2's skeleton argument, because they specifically relate this thread to their case - this is something that did sway the judge, IMHO. If I was to state where my case was flawed, that would help O2 no end. While I'd love to help others out, I simply won't be helping O2. I will, however, dedicate my time to helping those that fall in to the same trap as I did out, pointing out their failures, so they don't come a cropper as I did.

 

If it wasn't for CAG, I would have risked bankruptcy fighting this, thinking I was on a winner all along - I never was. It took some of the most experienced CAG members to show me that, which is advice that has probably saved me thousands.

 

If my claim wasn't flawed in this way, I have no doubt that CAG would have rallied behind me. In fact, I think I probably would have had to have held them back!

 

The problem with CAG, of course, is that its a victim of its own success. The site/forum is so big, that the big hitters can only scratch the surface - my thread is one of those that slipped through the cracks, sadly. What we rely on now is members like myself, that help others out, and get the attention of those other members that can help them in the right way on to the threads that really matter. The site team have been marvellous - (you know who you are) so I only hope I can go out there and help someone like me before it's too late for them too.

[humbleman]

 

The problem with CAG, of course, is that its a victim of its own success.

 

Took the words right from my mouth.

 

I have no doubts that the financial institutions are using this site to train their staff. All the negative information is working in the favour of these institutions

[foolishgirl]

No criticism of CAG was intended - on the contrary - but thanks for clarifying your position Car. Great to see you push it this far, really sorry you (& CAG) couldn't take this one to an ultimate conclusion but you live to fight another day in the war on greed & unfairness. Good luck....

[fergal71]

hi car , cheers for update.... can some of the big hitters not find an unflawed case against the CRA's and set a precedent... I like I have said would gladly donate to that fight... The setting of a precedent against the CRA's self assuming power would be worth the fight and help millions of consumers around the UK... I heard on another thread (think it was surlybonds) that there were things in the pipeline for CRA's but have heard nothing since. All the good work early caggers have done for themselves has now been circumnavigated by the industry and they have closed ranks so, although a few people have managed to clear files many others are now unable to do so as th ICO is in cahoots with the CRA's....

 

Come on Cag what can we do next..... support from a front page advert would bring enough donations to make another real difference to the masses....

[Penfold92]

Chirs,

 

Can you clear your pm box please?

 

Prabs

[car2403]

Chirs,

 

Can you clear your pm box please?

 

Prabs

 

Done

[heartopp]

Wow - I have only read this before work, and it was like a great book, but a bitter ending...

 

Car, well done on this! I know its not want was expected... But, it has keep o2 on its toes!

[citizenB]

I followed a link from another thread and have just read all the way through. I am so sorry there wasnt a happier ending.

[IdaInFife]

Aw man so sorry Car but my glass is dry, Iv'e smoked about 10 cigs reading this, not wanting to move away , what a pants ending but I hear you

 

Just be safe in the knowlege that because of this others can be helped

 

Now for another voddie

 

Chin up

 

ida x

[UK26]

I sat here tonight reading every post with great interest, its upset me big time, the outcome of this case. I understand it was done for the greater good etc.

 

Its made me think about all my cases, in connection with default removal etc and don’t want to stumble on the same as car experienced (Small Claims Court) yes no problem, but now there is fear with every case, soon as it get complex it could get transferred to the next process and costing lot of money just to try and stand up for your rights.

 

The thing that has really pi**ed me off is the only people who would now seem can defend or claim against another is the RICH

 

The way the court service is setup including legal funding is wrong, legal funding says its there to help the poor seek justice. yet the government kick you in the teeth and limits you, whereby not allowing you to get justice.

 

This case reminds me on the Judge John Deed series, where the rich people have power in the country, and the court administrators fear any case against a big player company which means the poor people well might not exist.

 

The government should seek to improve the legal process which allows a fair trail wither you are poor or rich, money should not determine the case ending, but on merits of the case and the likely outcome.

 

What if you have a large debt to a big company for say £40k and you defend the case, but you then look at the legal costs and say, actually even throe i do have a very good chance in winning i can't continue due to costs if i lose, instead i will go bankrupt and save the hassle and let them win.

 

 

London Test Case

What is the betting now the legal gods, or who ever you like to call them will or have put pressure on the judge (mr smith) not to pass judgement in favour of OFT (the consumers) as it will have massive impact in the banking system or something long the lines if they say, bank charges are unfair

So its implied, we don’t care really about the consumers, so longs they pay tax,

Wonder how many government officials reframe from passing correct judgements due to conflict of interest

I feel sorry for Car in his efforts and not being able to continue the case.

 

 

Now off to bed, 02:35am, with disbelieve and upset LLL

 

Well done to Car for trying

Edited September 4, 2008 by UK26

[BeerFun]

Any chance of a hint at the weak points? I have closed a defaulted account with O2 and paid the final bill, so the contract/agreement is definately terminated. So I was wondering if i can still (under DPA) have the default removed?

[never-in-doubt]

Car

 

Sorry to hear the outcome - gutted for you.

 

(at least this post will move this interesting thread back to page 1)

[Jules55]

Car, you posts have been facinating and excellently written and I really expected you would have achieved what you set out to achieve after all that hard work! Surely if you couldn't get your erroneous O2 data removed then what hope is there for us mere mortals!

 

I have heard some success stories on the grapevine where consumers have made contact with their lender where a default and late payment history has been on their files and an "arrangement fee" suggested and accepted for the information to be updated to read settled, with all status history reset to 0's and the default removed.

 

This I heard was all above above board no under the table payments. The "arrangement fee" being for the lenders time to deal with the administration of the matter.

 

Surely less time consuming exercise and more cost effective than dragging these big guns to Court, after all they seem to understand money talks still! I doubt it works will all situations but of course something to consider if you want a result ie the erroneous data removed or corrected. Something for both parties at the end of the day.

[car2403]

Absolutely not, that is something I wouldn't touch with a barge pole - paying them to remove data that is inaccurate, when the DPA says it should be removed? Not on you nelly.

 

I wouldn't let my claim put you off - there's loads to be learnt from this thread, about process/procedure and obstacles to come.

 

I don't see it as a negative, it's just that the benefit/cost balance wasn't in my favour and I'm not going to be in need of any credit over the next few years, so I'll just wait this out and let it drop of my CRA file. My claim was flawed from the start - the reason why I will never share with anyone, as it's individual to my claim, having no bearing on any other - which also means I took that in to account when deciding whether to proceed or not. Had this been at the start of the 6 year recording period for Defaults, I may have decided differently.

 

Incidentally, there's a petition flying around CAG to reduce the amount of time CRA data is held to 3 years, which would mean this would come off tomorrow if that happened. This would bring the UK in line with the rest of Europe, so is quite likely to happen.