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

[car2403]

TBTH, none of this is a surprise to me. I've delibrately not enforced the Judgments as I saw this coming - call me psychic!

 

I don't think the argument that they didn't received the claim forms, so didn't acknowledge/defend, will fall on deaf ears - this clearly isn't right, as the claim was issued by the Court (not me) so service of documents isn't an issue.

 

The argument that they have a realistic chance of defending holds more water, even if I am gritting my teeth while typing that!

 

The defence at this stage is irrelevant, until the Court allows Judgment to be set aside. I can see the argument that an application for summary judgment would look good, but I don't think it's worth the hassle - summary judgment is a draconian remedy that is rarely used these days. A summary judgment would definately result in an appeal from O2, IMHO.

 

I hate to say this, but I think my next step (after writing to the Court to object to the set aside of Judgment) will be to prepare a full case against them ready for a trial hearing. In the meantime, I **may** write to them with some decent settlement terms, should they wish to remove the Default from my credit file. (Which is where all this started in the first place!)

 

I don't accept that their defence to the claim is right - but I don't think I want to drag this out longer than necessary by making applications for this, that and the other at this stage.

 

The crux of their argument is that the agreement has not been terminated - they then rely on the "termination of service" terms in the terms document they've produced. What they have failed to show is that they have no evidence of my "agreement" to those terms, impliedly or explicitly - I also can't see how the agreement couldn't have been terminated considering the phone was cut off and collection activity started by the DCA.

 

They have failed to consider the fact I've withdrawn my consent, also.

 

I'd be interested to see what level of collection charges have been applied here - if they ever bother to comply with the Data Protection Act S.A.R - (Subject Access Request) I sent, which adds to the inaccurate Default argument. I may add this to my objection to set aside, as that may add weight to my argument...

[orfoster]

Hey car,

 

I have had my defense through from O2 this morning (Special Delivery). I will have a read of it.

 

Damn only had till next Monday for a Judgment although they would only do the same to me as they have to you.

[car2403]

Be interested to see if it's the same as mine, orfy, as that means we're in the same boat in that case.

[orfoster]

I will post the defence on my own thread and come back and post the link here. It looks quite the same although they haven't signed the defence so...... i guess it doesn't mean much but is abit of a joke. Also I am thinking about editing POC's, I'll explain on my thread.

[Blossomandebony]

Hi, Car,

 

Just skimmed your thread and it makes interesting reading!

 

Even though it's galling that they have put in a request for a set aside at this stage, I would say that you have a firm advantage. You've done everything by the book, followed CPR correctly, while O2 have blatantly ignored the court's judgement. If you do end up in court, the judge surely must take this into consideration.

 

Let me see if i've got this right - your claim is for the removal of a default, (or 2?), + £65 court fee + damages caused by the unlawful default of £1000? (as I said, I skimmed your thread!). Have you considered contacting the litigation team at O2 directly to come to a settlement? I'm just thinking aloud but do you think they'd be willing to remove the defaults, write off any outstanding balance from your contract and pay you the court fee in return for an early settlement? (This might be a tactic if you weren't too bothered with the £1000 damages.)

 

Or maybe you just want to see them squirm in front of the judge , trying to explain their incompetence! (who wouldn't!). And the crazy thing is, it's probably already cost them more in solicitor's costs for that defence, than it would to pay out your claim.

 

Good luck . . .

[car2403]

Blooming 'eck, Blossomandebony, have you read my mind? (You're right about my thread, BTW)

 

I was thinking of doing that, but I want to see what the Courts reaction to the application is first.

 

If the Court won't entertain the application, I'm on a winner.

 

If they will and set judgment aside, I'll ask O2 to write the balances down - currently £9 (I know!) and £330-something - (although they've offered reduced settlements in the past, so I'll remind them of this) which has to be worth it for them not having to defend the claim?

 

If they choose not to settle, I'll send a CPR Part 18 request for more info - then go back to the Court on the other Claims for DPA SAR enforcement and ask for an order forcing their compliance.

 

I also intend to highlight to the Judge in the Application Hearing (if there is one!) that I've taken action against O2 for failure to comply with my SAR, under which they've paid what was ordered - but they STILL haven't complied with the request! "How can they say they have a realistic prospect of defending the claim, should Judgment be set aside, if they have failed to provide any data that they hold on me under a DPA SAR and a CPR request, sir?", I'll say...

[orfoster]

http://www.consumeractiongroup.co.uk/forum/legalities/39205-o2-online-no-credit-4.html#post1355583

 

More to follow but I can't concentrate any more on typing (long day).

[Blossomandebony]

Chris,

 

I think you have all bases covered in this one. You've done the research and bought the T shirt!

 

If, and that's a big IF, this does go to court, you will know the exact history of the dispute unlike any bog standard solicitor they send, who will probably not have the foggiest . . .

 

BAE

[car2403]

Thanks BAE - it's nice to hear someone say that and offer support... I'm not blazing the trial as in I'm the first to do this, but it REALLY feels like that at times...

 

I've received a Notice of Hearing, set for 14 April in the morning, so I now need to plan my response. I'm not sure which part of CPR this comes from, but I remember from Part 24 (Summary Judgment) that I need to give a response and supporting documentation to the other side/Court at least 7 days before the hearing.

 

I've had a quick look over CPR and can't find this in relation to an Application hearing?

[dad]

Car,

 

This bit of the CPR deals with applications:

 

Part 23General Rules about Applications for Court Orders

[car2403]

Thanks dad - I did look at that, but it doesn't outline rule surrounding Application Hearings?

[Nick W]

The Order giving notice of hearing should say if any directions have been given, ie by xxxx date the parties must send to each other and to the court copies of all documents on which they rely.

 

However, good practice would suggest that if they are bringing the application, they need to serve you (generally 14 or 21 days before) and then you file a reply 7 days before.

 

You have need to served and filed in order to rely on at the hearing.

 

But of course, look at the time estimate. No point filing 20 page statement if the allocation is 20 mins!

 

Nick

[car2403]

There are no disclosure details in the order - just says the date/time of the application hearing and that I should attend.

 

I don't have that much to say really?

 

They didn't comply with CPR timescales to acknowledge/defend, the fact they were closed should be irrelevant.

 

True they may think they have a realistic chance of defending, but they should have defended at the right time - not after JBD was entered against them.

 

Other than what I've already said in the claim, I can't see what else I can add. I suppose I should tell the Court that I sued (separate claim) for DPA SAR enforcement as O2 didn't reply - the Court entered JBD on that too and O2 have paid up but they still haven't complied with the request! I could argue I did that as a pre-action protocol to this claim (insomuch as I need to know what O2 are relying on as evidence of the agreement and account statements, etc) and without that information they can't have a realistic chance of defending.

 

I have a feeling no matter what I say, the Judge will already know what he is going to do before the hearing - he might just want to give them a hard time and make them work for their money on this one.

[car2403]

I did get a letter from them asking me to tell the Court that they had complied with the Data Protection Act S.A.R - (Subject Access Request) Judgment, in that they've paid the £130 that I won from them in that claim - I've wrote back to them reminding that the compliance with the S.A.R - (Subject Access Request) was part of the claim, so I won't do that until they've provided the information I asked for. (Which they still haven't sent, yet!)

 

I sent a copy of that letter to the O2 legal team and told them they need to ensure they comply with the Data Protection Act S.A.R - (Subject Access Request) as I see that as paramount under their application to set Judgment aside on the Default issues - I hope to be able to say to the Judge that they still haven't complied, providing any evidence of my agreement with them, and that, as a result, Judgment shouldn't be set aside as they've produced nothing to say what I did/didn't agree to originally - (Without that they don't have a leg to stand on) I've also asked for complete disclosure, including all that, under CPR so I can respond to their application notice. I've given them 14 days to comply, or I might ask the Court to order them to comply.

 

Nothing else going on here yet...

[car2403]

O2 are playing silly b*ggers here, IMHO...

 

They've forwarded my letter (saying they've paid the S.A.R. enforcement damages/costs, but haven't complied with the S.A.R. request yet) to the Court and cc'd me a copy, where they have asked the Court to mark the Judgment as satisfied because I've confirmed they've paid me!

 

Of course, the Judge is having none of it and the Court has wrote back to them asking them to confirm if they've supplied the S.A.R. data, as the Judgment included that as part of the claim - which is exactly what I said to them, so why waste the Courts time? Just supply the data I've asked for! Grrrr....

 

Interestingly, the Court has said they must confirm this before 11 March? Doesn't say what will happen after that date though... Oh well...

[car2403]

Aye, aye... As I was typing that last post, the Postie just came with 2 x S.A.R. response packs. Looks like O2 can do something right after all, even if it is almost 4 months late!

Looking through it, it's just screenshots of displays showing payments and charges - there's no breakdown of costs applied, along with a complete lack of agreement. (Although they've provided terms and conditions previously, but these are the current T&C's, so where is the original T&C's that allows variation please?)

 

Here's the T&C's from their site; (notice the lack of "use of your information" headers - they don't even allow them to share my data with a CRA... Pity s.35 DPA 1984 was repealed, or that could have been a criminal offence!)

 

Your airtime contract - Terms & Conditions - O2

 

O2 Privacy policy - Terms & Conditions - O2

 

I may have to write back and point out what they've sent me will be binding on them in the Judgment set aside hearing on 14 April, so if they can't provide a copy of an agreement to which I "agreed" to, they may want to reconsider their options here...

[jysmystry]

oh dear me. Those poor little sausages! The words "Hole" and "Dig" spring to mind here.

 

As was recently discussed in one of my posts and in the words of Napoleon Bonaparte..

 

Gentlemen, when the enemy is committed to a mistake we must not interrupt him too soon.

 

Maybe keep that particular barrel of powder dry for the future, we don't want them to realise their case now firmly dug its foundations in the sand now do we

[car2403]

I'm really struggling to compose a reply to this application to set aside judgment without using the terms "the Defendant is completely wrong" and "the Defendant has not met the challenges laid down in the claim".

 

It almost seems to me that O2 hasn't fully read the POC here - if they have, they are ignoring them!;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca.html#post1237658

 

In the meantime, the screws are turning trying to organise a set aside and settlement by consent. Again, I believe I'm being seriously underestimated here. (Thanks to Penfold for the PM support on this one!)

 

I can't help but feel that someone is banging their bloodied head against a brick wall here! I also can't help to think that it's not me doing the banging!

 

I can't see how continuing with this is in their interests - bearing in mind they have NO EVIDENCE of any agreement to any terms and conditions! (Confirmed by irrefuable evidence they have supplied to me, in the form of a DPA SAR response!)

 

O2 have been nothing but dismissive of me in their approach here - 1 of claims had its inital approaches totally unresponded to until the Default Judgment was entered against them, in fact! Perhaps O2 are so up themselves that they think they will be the first company to successfully defend against the Surlybonds arguments for Default removal?

 

I won't be so arrogant as to not prepare a proper response to this application to set aside, (it is tempting!) as that just isn't gravy, but I do feel I'm going to get RSI for no reason!

 

What would Napolean say about that, then?

[Penfold92]

Have you got the application yet? Post or PM me it please. We can then put together a reply that you can hand deliver to the Court and give the Defence sol just before the hearing...bless him as he will do the same to you no doubt...

 

Penfold

[car2403]

Application notices and Defences are in post #73 onwards, earlier in the thread;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca-4.html#post1353744

[car2403]

Application notices and Defences are in post #73 onwards, earlier in the thread;

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/111666-car2403-o2-wescot-dca-4.html#post1353744

 

There has been discussions ongoing, but sadly nothing worth mentioning at this stage, so... here's my first pass for a response to their application to set judgment aside. This needs to be in by 1 April - thanks goes to Penfold for some initial input, which I've adapted slightly... then expanded on, big time!

 

UPDATED BELOW

 

I'm really hoping that they will poo their pants when they read this and try to settle! ("Pooing their pants" is more likely than "trying to settle", I believe!)

 

If they had simply agreed to remove the Default, I would have gladly set aside Judgment and waived the damages/Court fees.

 

I seriously can't see how they can get this set aside - or it they do, I can't see how they can defend successfully?

 

The question will be, how long with the Court take to consider the arguments surrounding whether they can/should defend the claim? Or, will it be an open/closed hearing, where O2 will try to settle out of Court once the Judgment is set aside, thereby avoiding the issues at all? I have my own opinions...

 

Ultimately, I just want this damned default removed - quickly!

[Penfold92]

Well Chris,

 

If nothing else it gives the Judge something to read and O2 something to think about. I do feel that the Court will set aside the judgment and let them try to defend. However in the same breath O2 will settle before any hearing as they will not want to go through all the expense, for what is simply, removing a default...

 

I am truely shocked as there stubborness so far. At least if you were pursuing them for a few grand as well for damages etc then maybe they could think about trying it on, but I seem to remember this is not the case with this one anyway, is it?

 

Penfold

[car2403]

If nothing else it gives the Judge something to read and O2 something to think about. I do feel that the Court will set aside the judgment and let them try to defend. However in the same breath O2 will settle before any hearing as they will not want to go through all the expense, for what is simply, removing a default...

 

There can be no default as there is no agreement stating what was/wasn't agreed to - as far as I'm concerned, they provided a mobile phone service and I paid, up to a point, but had no obligation to continue paying, given the evidence they've produced;

 

In response to a subject access request under s.7 of the Data Protection Act 1998, the Defendant has supplied all data held by it in relation to the Claimant as a data subject – such evidence does not show that the terms and conditions that the Defendant seeks to rely on in its statement were consented to by the Claimant. In fact, no information has been supplied to the Claimant to confirm up on what basis the agreement between the two parties was formed at all

 

Consider this, in relation to credit agreements, but has a cross read in this situation also, IMO;

 

Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case;

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

I am truely shocked as there stubborness so far. At least if you were pursuing them for a few grand as well for damages etc then maybe they could think about trying it on, but I seem to remember this is not the case with this one anyway, is it?

 

The claim is for £1k based on unlawful default, but that's it - had they offered default removal, I would have discontinued now.

 

Stubbornness doesn't cover it, TBTH - it's arrogance, tied in with a belief that they know more about this than me, leading them to think they can bully and taunt me in to submission.

[car2403]

There has been discussions ongoing, but sadly nothing worth mentioning at this stage, so... here's my first pass for a response to their application to set judgment aside. This needs to be in by 1 April - thanks goes to Penfold for some initial input, which I've adapted slightly... then expanded on, big time!

 

Updated version;

 

 

Claim Number: ****

 

 

 

In the **** County Court

 

 

 

 

Between:

 

car2403

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

O2 (Online) Limited

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

WITNESS STATEMENT OF

THE CLAIMANT

_______________________

 

 

 

 

 

 

1. I, car2403, the Claimant in this case and respondent to the Defendants application to set Judgment aside, am a litigant in person and I make this witness statement from my own knowledge and experience.

2. The Claimant refers to the County Court Claim Form, containing the particulars of claim, that was filed by the Claimant with the Court Manager of Morpeth and Berwick County Court dated 17 November 2007. The Claimant received a sealed copy of such particulars, along with a Notice of Issue, (N205A) dated 20 November 2007, advising that the Court had sent details of the Claim to the Defendant by first class post. The claim was deemed served on the Defendant on 22 November 2007. The Defendant therefore had until 6 December 2007 to respond to the Claim form. The Claimant submits that the claim was issued correctly as required by CPR Part 7.

 

3. The Defendant failed to reply to the Claim form within the time allowed by Civil Procedure Rules.

 

4. The Claimant subsequently requested Default Judgment under CPR Part 12, as a result of the Defendants failure to reply to the Claim form.

 

5. The Court entered Default Judgment on 18 December 2007. (Exhibit O2/2, attached to the Defendants application)

 

6. The Claimant wrote to the Defendant in a letter dated 21 December 2007, (exhibit O2/1, attached to the Defendants application) requesting its compliance with the Default Judgment.

 

7. The Defendant has responded by asking the Court to set aside Judgment on the basis that the Defendant did not receive the claim form, nor any notification that a claim had been made against it, and that it has a real prospect of defending the claim

 

8. This witness statement contains the Claimants response to this application and sets out his arguments for refusal of the application submitted.

APPLICATION TO SET DEFAULT JUDGMENT ASIDE BECAUSE THE DEFENDANT DID NOT RECEIVE THE CLAIM FORM NOR ANY NOTIFICATION THAT A CLAIM HAD BEEN MADE AGAINST IT

9. The Defendant claims that it did not receive the Claim form served on it by the Court. Further, the Defendant claims to have not received the Default Judgment notification.

 

10. The Court clearly did file and serve the claim form, the particulars of claim and the Notice of Default Judgment with the Defendant, as the Claimant himself received sealed copies of such documentation.

 

11. The Defendant implies that the Court did not send such documentation to it, or that the method used to serve the documentation failed, thereby relying on the fact that it didn’t receive these documents to request a set aside.

 

12. The Claimant finds this extremely unlikely, as documentation is issued by this Court, using these methods of delivery, on a daily basis, without documentation going missing.

 

13. The Claimant avers that this is an attempt to avoid culpability for the claim under the Judgment, as, given the Defendant is a multinational Company, it seems convenient that they did not receive the Claim form nor the Judgment, yet they did receive my letter asking for payment post Judgment.

 

14. The address used by the Court to file and serve this documentation is the registered address of the Defendants head office. The Claimant has serious reservations as to how two Court letters could go astray. Does the Defendant have problems with its post? It is humbly requested that the Court ask for evidence to be submitted to show that there was an ongoing problem with receiving post at the time of the Claim to show that the letters were not merely “ignored” or “conveniently misplaced”.

 

15. The Claimant will submit that the Civil Procedure Rules have been complied with as no documentation been returned to the Court as “undelivered” by Royal Mail.

 

16. With regards the Defendants comments regards requesting copies of the claim forms and Judgments, the Claimant questions why these were the first priority and not the immediate application to set aside the Judgment.

 

17. The Defendant cannot use CPR Part 13.2 because no Acknowledgement of Service was received and no Defence was entered. This only leaves them CPR Part 13.3, which may apply if O2 submit an Application Notice to have Judgment by Default set aside or varied - but the Defendant needed to apply "promptly".

 

18. Judgment was entered on 18 December 2007, but the Defendant did not file its Application to set Judgment aside until 28 January 2008. This was a gap of 6 weeks. In that time, the Defendant had a letter from me asking for payment/removal of Default dated 21 December 2007. I did not have any response to that letter - I would request the Court ask for an explanation of this situation, along with an explanation as to why the application and the defence took over 6 weeks to draft.

 

19. The Defendant submits that it has good reason why no acknowledgement was filed and requests judgment be set aside on these grounds. The Claimant avers that the Defendant must have received the documentation from the Court and that CPR has been complied with. In either case, the Defendant has failed to apply to set judgment aside promptly. The Claimant therefore respectfully requests that the Court turn aside the Defendants application for these reasons.

 

APPLICATION TO SET DEFAULT JUDGMENT ASIDE BECAUSE THE DEFENDANT HAS A REAL PROSPECT OF SUCCESSFULLY DEFENDING THE CLAIM

20. The Defendant also submits that it has a real prospect of defending the claim due to the following;

 

a. The agreement has not been terminated; and

b. s.10 of the Data Protection Act 1998 does not apply; and

c. s.12 of the Data Protection Act 1998 does not apply; and

d. No consent is needed; and

e. s.10 of the Data Protection Act 1998 has not been infringed.

 

21. In relation to each of these points, the Claimant pleads as follows;

a. The agreement has not been terminated;

22. The Claimant submits that the question of whether the agreement was terminated or not is one of fact. The facts are, as admitted by the Defendant in its witness statement, that the parties entered in to an agreement for the provision of a mobile telephone service from the Defendant to the Claimant. The Defendant further admits that the provision of this service was “disconnected”. The Claimant will argue that such an action is, in effect, tantamount to a termination of the agreement between the two parties, as the core reason for the existence of the contract between them (provision of a mobile telephone service) had been unilaterally revoked by the Defendant. It cannot reasonably be argued that the agreement was not terminated as a result of the disconnection of the service provided to the Claimant.

 

23. Further to this, the Defendant relies on the fact that there is an outstanding balance owed to it by the Claimant. No admission is made as to whether the outstanding balance is correct, however the Claimant has corresponded with the Defendant on multiple occasions attempting to seek a settlement of the balance – the Defendant has refused to negotiate with the Claimant on this point throughout that period of correspondence. In fact, this is the first time the Defendant has acknowledged the Claimants dispute with it without dismissing it with irrelevant argument. The Claimant submits that, as the Defendant is relying on the fact there is a balance outstanding and has refused to correspond with the Claimant on this issue, that the Defendant has sought to frustrate proceedings and is abusing the Courts process by attempting to rely on this fact to set Judgment aside on that basis. In essence, the Defendant has brought this situation around itself and now seeks to rely on that situation to justify its position, a situation which clearly causes prejudice to the Claimant in these proceedings.

 

24. The Defendant relies on Clause 16.2 of its Terms and Conditions, (exhibit “O2/4”, attached to the Defendants statement) to continue to process the Claimants data. The Claimant submits that, as no such agreement can be said to exist between the parties, as a result of the argument outlined in paragraph 23 above, the Defendant cannot rely on this term of agreement, as it intends, to here.

 

25. Further to this, the Claimant puts the Defendant to strict proof as to the basis of the original agreement and of such terms and conditions forming part of that agreement. In response to a subject access request under s.7 of the Data Protection Act 1998, the Defendant has supplied all data held by it in relation to the Claimant as a data subject – such evidence does not show that the terms and conditions that the Defendant seeks to rely on in its statement were consented to by the Claimant. In fact, no information has been supplied to the Claimant to confirm the basis on which the original agreement between the two parties was formed at all. The Claimant submits, therefore, that this is irrefutable evidence submitted by the Defendant, as the information has been supplied by it in a direct request under that legislation and cannot be argued.

 

26. For the reasons given above, the Claimant submits that the agreement between the parties was indeed terminated for the reasons stated therein. Further, any consent to process the Claimants data would have been revoked up on termination of the agreement, at which point the terms of that agreement would have came to an end.

 

27. In the alternative, where it is held, which is denied, that the terms and conditions submitted by the Defendant are the terms and conditions up on which the parties originally contracted, the Claimant will further submit as follows;

 

28. That the alleged term, or terms, of the agreement that the Defendant relies on in its defence is unfair under the Unfair Terms in Consumer Contracts Regulations 1999, Regulation 6, and that the Defendant should not be allowed to rely on such an unfair term as part of its defence to the claim; (Regulation 8)

"5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was."

29. The Defendant is a multi-national corporation. The term regarding the Defendants use of the Claimants data, amongst others, was inserted unilaterally in contract. The contract was pre- and mass- produced and the Claimant had no opportunity to negotiate the clause, or indeed any of the contract provisions.

 

30. The Claimant avers that such terms create significant imbalance in the parties’ rights, in the favour of the Defendant, to excessive degree, as the Defendant is able to determine the length of time such terms are effective, after the termination of the agreement, to benefit its own cause. 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. It is the Claimant's contentions that the defendant’s perceived right to abritrarily 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). 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 Data Protection Act 1998, by the defendant's continued disclosure of personal data.

 

31. The Claimant further avers that such terms are contrary to the requirement of good faith. The terms are intended to have the effect that the Defendant, who has been unable to meet any evidential burden of proving the Claimant is in default of the agreement, or, where the Defendant can prove such default is unable to show that the terms under which it claims the Claimant is in default are fair under the UTCCR, should not to be allowed to intimidate, harass and effectively blackmail the Claimant into paying monies that he does not have to pay by, for example, threatening to blacklist the credit record of the Claimant in the way it has. Such terms cannot be said to defeat the Defendants business objective. (Director General of Fair Trading V First National Bank [2001] UKHL 52 and [2001] 3 WLR 1297)

 

32. Further, schedule 2 of the regulations also includes such clauses, to define examples of unfair clauses, as:

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

 

“(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract”;

 

“(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

33. As the Defendant carries its business out via a website, the Claimant was not given sufficient opportunity to become acquainted with the contract, the terms and conditions of which were listed in such detail that a reasonable consumer would struggle to understand them. Further, the reading of the terms and conditions was not, at that time, made mandatory when placing an order with the Defendant. The Claimant submits that he was not aware of the contractual basis, or the terms and conditions applicable to that contract, at the time of contract with the Defendant as a result. The Claimant was not given the opportunity to individually negotiate such terms, lending additional support to the unfairness of the terms relied on by the Defendant.

 

34. The Defendant is relying on terms and conditions that are dated 2006. The Claimant became a customer of the Defendant prior to this date. The Claimant submits that the terms in this document are unfair, under schedule 2(j), as the Defendant has altered the original terms and conditions up on which the contract was based, without a valid reason specified in the contract. The Claimant repeats the test of strict proof, outlined at paragraph 25 above, to show the detail of the original contract and the original terms and conditions of such contract that show that the terms and conditions may be varied at a future point in time. The Claimant submits that, where the Defendant cannot show that the original contract itself, or the terms of it, allowed for variance at a future point in time, he cannot be bound by the current terms, as the Defendant suggests, as that would be unfair under the regulations.

 

35. The Defendant, in its submission, should it be successful, seems to suggest that its own interpretation, on the question of whether the agreement was terminated or not, is the only interpretation of those facts. It offers no alternative statement where the Court decides this interpretation is inaccurate or incorrect. The Claimant submits this is unfair, as the Defendant is unwilling to use any discretion on assessing the fairness of the claim, under schedule 3(m).

 

36. As a result, the Claimant will argue that any term, whether referred to by the Defendant at this time or not, allowing the Defendant to continue processing the Claimants data would be unfair as a result of the argument contained herein and that such terms should not be binding on the Claimant as a result. (Regulation 8(1))

 

37. Further, the Defendant is unable to rely on Regulation 6(2)(a), in that the sharing of such data is not part of the definition of the main subject matter of the contract, (to provide a mobile telephone service) or on Regulation 6(2)(b), in that the sharing of such data is not a term relating to the adequacy of the price or remuneration, as against the goods or services supplied in exchange, to avoid the assessment of fairness of such terms.

 

b. s.10 of the Data Protection Act 1998 does not apply;

38. The Claimant makes reference to paragraphs 22-43 of the particulars of claim and repeats its submissions in paragraphs 22-37 of this statement, in response to the Defendants defence.

 

c. s.12 of the Data Protection Act 1998 does not apply;

39. The Claimant makes reference to paragraphs 22-43 of the particulars of claim and repeats its submissions in paragraphs 22-37 of this statement, in response to the Defendants defence.

 

40. The Claimant submits that s.12 is relevant as the Defendant is sharing default information with third parties, by means of automated processing of the account data and passing that information to credit reference agencies, and is therefore making automated decisions that the Claimant is in default of his agreement without being able to fully substantiate this matter for the reasons stated herein.

 

41. The Defendant claims s.12(6) and s.12(7) applies, but is unable to rely on these subsections for the same reasons.

 

d. No consent is needed;

42. The Defendant relies on a release from the Information Commissioners’ Office (ICO) in relation to the Claimants consent to the processing of his data. The Claimant submits that this release bears no relation on the current proceedings, for the following reasons;

a. The release is headed “Credit Agreements – Data Sharing” and the agreement in question is not a “Credit Agreement”; and

b. The release outlines the ICO’s view on data sharing. The ICO gives “opinions” on how the Data Protection Act applies – such an opinion may be incorrect; and

c. The opinion expressed by the ICO is not binding in the current proceedings, as it has no basis in law and gives no legal, binding authority for the basis of the opinion.

 

43. Further, the opinion expressed by the ICO in this release relates to the ability of credit reference agencies to share data – the question in these proceedings is not whether the credit reference agency is entitled to share such data as provided to it by the Defendant, but is as to whether the Defendant itself is entitled to share such data, either with a credit reference agency or at all, under the contract.

 

44. The Claimant puts the Defendant to strict proof of the legal basis up on which this opinion is stated and up on which it relies on to continue processing the data of the Claimant as a result of the argument contained herein.

 

45. Where the Defendant is unable to show this legal basis to continue processing the Claimants data, it is unable to rely on the fact that the consent of the Claimant is not required to continue such sharing and this part of its defence must fail as a result of this inability.

 

46. In the alternative, where it is held, which is denied, that the ICO’s view in this document applies to these proceedings and that the Court considers such view valid in these circumstances, the Claimant will plead as follows;

 

47. The ICO is of the view, outlined in the attached exhibit marked “X”, that where consent is required for continued processing under the Data Protection Act, such consent can be revoked – this opinion is in direct contention with the opinion relied on by the Defendant and throws doubt on any ICO opinion as being trustworthy, due to being inconsistent. Further, as the Defendant is relying on only parts of the ICO view on this subject, the Claimant further submits that the Defendant is attempting to frustrate proceedings and abuse the Courts process by attempting to rely on such opinion, in the way that is has, in its defence.

 

48. Further to this, the Claimant submits the exhibit marked “X” which outlines the ICO’s Data Protection Technical Guidance on filing defaults with credit reference agencies. This advice is dated 2 August 2007 and therefore supersedes that view relied on by the Defendant.

 

49. From this advice, the Claimant seeks to rely on the following;

“3… It is difficult to see how a record which is inaccurate could be adequate for the purpose for which it is held. A record which has been kept for longer than is necessary may well be excessive and irrelevant for that purpose and a record which is not up to date is unlikely to be relevant to, or reflect adequately, the current position. The record of a default lodged with a credit reference agency provides a reliable reflection of the individual’s credit standing to other lenders. If a record is unreliable or based on non-standard criteria, it is unlikely to be meaningful to another lender. In these circumstances it would be unfair for a lender to process the data to assess an individual’s credit worthiness.”

The Defendant is unable to fully substantiate the default information it is sharing with credit reference agencies for the reasons outlined in this statement. The Defendant is continuing to, either, process that data after the termination of the agreement, or, process that data after the Claimants consent has been revoked – this is termed as “excessive and irrelevant” by the ICO. The Defendant is also unable to substantiate both the contract agreement and the terms originally agreed to, the actual default of the Claimant under that agreement, or, where it can do so, that such default is not unfair under the Unfair Terms in Consumer Contract Regulations. The Claimant submits this makes the Defendants records “unreliable” in these circumstances.

“9 A ‘default’ can be said to occur as soon as a borrower fails to meet the terms of their credit arrangement. However, adopting this definition for credit referencing purposes would create difficulties since it is accepted that not all these defaults should be reported, for example, where weekly payments are late but are quickly remedied”

As highlighted, the Defendant is unable to show that the Claimant has defaulted due to failing to meet the terms of the agreement – no such agreement exists. This paragraph also shows that the Defendant does have “discretion” in deciding whether to process the Claimants information in that way and isn’t, as it suggests, legally obliged to do so.

“10 Indicators of a default…

The following indicate that a breakdown has occurred in most types of product…

The account has been referred to a collection agency or in-house debt collection department…

The lender takes or has taken steps to cut off the service provided…”

This part of the ICO’s guidance supports the Claimants view that disconnection of his mobile phone service is tantamount to a default and therefore termination of the agreement under which it is provided.

“16 Flexibility

We recognise there will be some circumstances where a lender may feel justified in filing a default, or withholding a report…

These decisions should be made on a case-by-case basis. When these decisions are made, lenders should consider whether, if a default record is filed or withheld, it would be likely to help or mislead another lender in their credit decision about the individual concerned. A general company policy to file defaults as a matter of routine outside the [iCO’s recommended] parameters would not be acceptable…”

The Claimants view is that the Defendant has discretion in deciding whether to share default information with third party credit reference agencies. The ICO view here supports this. The Claimant further argues that the Defendant should not be processing his data in that way, due to the dispute he has with it as outlined herein. The ICO also recognises that such inaccurate reporting does indeed have a negative effect on credit decisions taken regarding individuals, such as the Claimant, that are subject to that inaccurate reporting.

“32 Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served… This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all”

“33 A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing”

“39 Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement”.

The Defendant has failed to provide evidence of the Claimants agreement with it, or that any agreement exists and is unable to show that it communicated the method of filing information regarding the Claimant as outlined herein – this is against the requirements of Schedule 1, Part II, Paragraphs 1-4, Data Protection Act 1998 in the ICO’s view. The Defendant has also failed to show that it did comply with the requirement of providing a notice of intention of filing a default, which is a breach of the requirement stated here.

“43 If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer”

The Claimant submits that the Defendant is unable to substantiate the data it is sharing with third parties, such sharing having a negative effect on credit decisions made regarding the Claimant. The Claimant avers, therefore, that relying on the need to share information with credit reference agencies, on the basis of a need to share such data for credit control or credit referencing purposes, is inadequate for that use as it is inaccurate.

e. s.10 of the Data Protection Act 1998 has not been infringed.

50. The Defendant again relies on the ICO’s opinion in relation to data sharing – the Claimant therefore repeats paragraph 42-49 of this statement in relation to this part of the Defendants defence.

 

51. The Defendant further relies on the fact that it did reply to the Claimant with reasons for not complying with his s.10 DPA notice. The Claimant admits that such a response was received, but is flawed for the same reasons as that contained in this statement with regard to the Defendants defence.

 

CONCLUSION

52. It cannot reasonably be said that the Defendant was not given the opportunity to acknowledge or respond to the claim form. To do so would be to question the entire process of bringing such a claim and would require evidence to show that was the case – the Defendant has failed to show any evidence to satisfy that requirement.

 

53. The Claimant avers that the Defendant is, by making this application, attempting to frustrate proceedings and abuse the Courts process, in that it has no intention of actually defending the claim as it has suggested - the Defendant is unable to rely on its own defence, as it has no basis in law, nor does the Defendant have any binding precedent that allows it to continue to process the Claimants data as it has and continues to do so. Further, the Defendant is unable to meet the requirement of producing evidence to substantiate the agreement, if any, made between the parties, or to show which terms and conditions such an agreement was made up on. Where the Defendant is able to do so, the Claimant has shown that holding him to such agreement would be unfair under the Unfair Terms in Consumer Contract Regulations, 1999.

 

54. It also cannot be reasonably said that the Defendant has a realistic prospect of successfully defending the claim, as it is unable to produce evidence to substantiate this beyond a mere assertion that such a defence is possible to make, but is highly unlikely to succeed. The Defendant is unable to show exactly what agreement was originally made, or the terms on which such agreement, if one does indeed exist, was formed. It should not be able to rely on statements made in its own defence, not least because its view of such statements is out of date or flawed and favours its own position, because it has deliberately misquoted the source of those statements (the ICO for example) in an attempt to deliberately frustrate proceedings and abuse the Courts process in the current proceedings. The Claimant asks the Court to take action under CPR Part 3.4 to strike out the statement of defence, the power of which is granted to the Court under that part, for this reason.

 

55. The Claimant respectfully requests, therefore, that for the reasons stated herein and in the claim itself, that the Court turn aside the Defendants application to set aside Judgment in this case. Further, in any case, as the application was not made promptly, the application should be turned aside as the Defendant delayed unnecessarily without providing a reasonable explanation for such a delay.

 

56. The Claimant would like to highlight that it has fully complied with Civil Procedure Rules in bringing this claim and seeking Judgment. To set aside judgment, as a result of the Defendants application, would be unfair. It is this system that the Claimant has put his trust in to resolve his dispute with the Defendant and up on which he has relied on to conduct his litigation. It would not be in the interests of legal or equitable justice, or be in the interests of the overriding objectives, to allow the Defendants application to succeed as a result.

IN THE ALTERNATIVE

57. In the alternative, without prejudice to the Claimants pleadings above, where it is held, which is denied, that the Defendants application to set aside judgment is successful, the Claimant respectfully requests that the Court consider the Draft Order for Directions, attached.

I, car2403, the Claimant in this case and respondent to the Defendants application to set Judgment aside and enter a defence against the claim, believe that the facts stated in this witness statement are true.

Signed:

car2403

(Claimant)

Dated: 21 March 2008

In the *** County Court

Case Number ***

car2403

- Claimant

and

 

O2 (Online) Limited

- Defendant

Draft Order of Directions

IT IS HEREBY ORDERED THAT;

1) Judgment in the above claim is set aside;

 

2) The Defendants defence statement is accepted as the Defendants witness statement in this case;

 

3) The Claimants witness statement is accepted as the Claimants witness statement in this case;

 

4) No order as to costs

 

5) The need for Allocation Questionnaires be dispensed with;

 

6) The matter is allocated to the small claims track;

 

7) The case will be listed at the first available hearing, with a time estimate of 2 hours;

 

8) The parties must file at the Court and serve on the other party not later than 14 days before the hearing the following;

i) Copies of all documents upon which they wish to rely;

ii) Statements of all witnesses, including the parties, upon whose evidence they wish to rely. The Statements should be typed, dated and signed by the witness and stating that he/she believes that the facts stated in the witness statement are true.

iii) All original documents must be brought to the hearing.

iv) Parties should note that if they do not file and serve documents and statement as set out about then the Court may decide not to admit the evidence of the party in default.

 

I really enjoyed pulling the Information Commissioners Office's view to bits - them turning the screw on his opinion as it's so inconsistent!

 

I can't see the Judgment set aside being refused, but I can't see how they can defend the claim if that happens.

 

I might just remove the Mediation bit from the draft order for directions, as they've had since last August to bother their asses in getting a settlement going - and haven't, despite making the right noises.

[Penfold92]

I wouldn't bother with the mediation bit. The quicker you get a court date the quicker you get a settlement....IMHO of course...

 

Penfold