WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

[Amethyst]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Will this include Insurance policies, as I said yesterday when you get insurance over a 10/12 month period you enter a credit agreement as I did with Premium Credit. If you cancel the insurance it does not automatically cancel the credit agreement and also many insurance companies have a clause where they can carry on with your next years policy unless you have a scrap with them as has also happened to me, (with Swinton insurance)

If you took the insurance and then cancelled it under distance selling regs without having any benefit of the insurance then it would be the same.

If you had had the insurance for say 6 months then cancelled, then the credit agreement would probably be such that you are tied to paying for the ''loan'' which bought the policy so would have to pay for the year (ie. Buy insurance, agree credit so you can pay monthly, cancel next day - would come under Durkin - Buy insurance, agree credit so you can pay monthly, cancel in six months - wouldn't come under Durkin at all as basically the insurance cost the supplier £500 up front and you've only paid £200 of it so therefore still owe the £300 (plus the interest agreed at the start) - ie. it's not a pay as you go insurance it's an annual policy)

(Sounded simpler in my head Nelly xx)

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

If you took the insurance and then cancelled it under distance selling regs without having any benefit of the insurance then it would be the same.

If you had had the insurance for say 6 months then cancelled, then the credit agreement would probably be such that you are tied to paying for the ''loan'' which bought the policy so would have to pay for the year (ie. Buy insurance, agree credit so you can pay monthly, cancel next day - would come under Durkin - Buy insurance, agree credit so you can pay monthly, cancel in six months - wouldn't come under Durkin at all as basically the insurance cost the supplier £500 up front and you've only paid £200 of it so therefore still owe the £300 (plus the interest agreed at the start) - ie. it's not a pay as you go insurance it's an annual policy)

(Sounded simpler in my head Nelly xx)

Hmm

Not convinced by that - the insurers cost onnly exists whilst there is a risk of the underwriter having to pay out

They can claim back money in the same way we would expect a partial refund of premium

That would start getting back into the whole penalty charge argument.

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

It is quite a new concept so I think the arguments will take time to be worked out.

Is there an argument to say that, if the buyer is entitled to return the goods for any reason, and at any time, the associated credit should also be cancelled ?(this would not be in default).

[enaid]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

It is quite a new concept so I think the arguments will take time to be worked out.

Is there an argument to say that, if the buyer is entitled to return the goods for any reason, and at any time, the associated credit should also be cancelled ?(this would not be in default).

That's what I mean, grey areas all over the place imho, they never give us anything in plain black and white and I think until they do the credit cos will always find a way to screw us.

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

When section 89 refers to the breach not occurring it means in relation to the notice, it does not mean that the agreement returns to the condition it was in pre breach. The history regarding the repayments cannot change nor can the information recorded, it would be a breach of data protection principles as it would be a recording of an incorrect history.

The requirement to record data correctly is already encompassed in the DPA, hopefully courts may be more willing to enforce the provisions, but the case here brings nothing new to the table in this respect.

This is partially a fair point Andy, but in a lot of cases they would need to adjust the CRA markers from 'Default' to 'X missed payments', surely?

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

This is partially a fair point Andy, but in a lot of cases they would need to adjust the CRA markers from 'Default' to 'X missed payments', surely?

There is a requirement for the creditor to send warning of the issuance of a default marker(under guidelines) they should give 28 days, in order to pay any areas and prevent the default being registered. This is quite independent of the CCA section 87 notice, and is sent when the account is in danger of entering the default condition.

The section 87 notice is merely an information notice saying that the account is in default and that the creditor will begin enforcement unless the remedy sum is paid. The section 87 notice does not render the account in default, it reports it.

If the section 87 notice is remedied then the creditor cannot enforce, however the creditor may still consider the agreement to have broken down(be in default) and it does not mean that the agreement must be re instated.

It may be(as in many case) that both notices are contained within the same document, in which case remedying the section 87 notice will also remove the ability for the creditor to enter the default marker. However a none compliant default (section 87)notice would have no effect on the CRA notice and the default would still be registered after 28 days.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

However a none compliant default (section 87)notice would have no effect on the CRA notice and the default would still be registered after 28 days.

Not sure I agree with this.

If a s.87 notice inaccurately specifies the arrears (eg, by demanding the balance) and is not satisfied, then the default will be inaccurately and unfairly applied, in contravention of s.4(4) DPA.

The required notice of intent works like the s.87 notice; it states the sum needed to avoid the registration of the default. The sum in the notice of intent is the same as the sum in the s.87 notice. If that sum is wrong, then the recorded default must be wrong.

The creditor is under a statutory duty to inform the debtor what he needs to do to rectify a breach; if the creditor uses the same error to report adverse data, then clearly the data is incorrect and the creditor (as data controller) is in breach of its duty of care to report accurate data.

[Amethyst]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

MSE's report http://www.moneysavingexpert.com/new...ffect-millions

How does this affect others?

Durkin's solicitor, Ross Slater, says the Supreme Court decision has major implications for people with debts.

He says it clarifies the link between a credit agreement and a contract of sale, and that it also means lenders will have to make inquiries about the validity of debts before "blackening" people's "credit names".

"From the point of view of the debtor, they are going to be able to rely on the fact that the bank cannot just simply say 'We are going to report you to whoever' and blacken their name," says Slater, an associate at Glasgow-based law firm Patrick Campbell & Company.

"It's a huge decision. There are potentially millions of agreements that could have fallen into this problem."

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Not sure I agree with this.

If a s.87 notice inaccurately specifies the arrears (eg, by demanding the balance) and is not satisfied, then the default will be inaccurately and unfairly applied, in contravention of s.4(4) DPA.

The required notice of intent works like the s.87 notice; it states the sum needed to avoid the registration of the default. The sum in the notice of intent is the same as the sum in the s.87 notice. If that sum is wrong, then the recorded default must be wrong.

The creditor is under a statutory duty to inform the debtor what he needs to do to rectify a breach; if the creditor uses the same error to report adverse data, then clearly the data is incorrect and the creditor (as data controller) is in breach of its duty of care to report accurate data.

I suppose you could try contesting a default marker after six missed payments on the grounds that they had the sum wrong, but i do not think realistically it would have any effect. In any case it is nothing to do with the act.

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

MSE's report http://www.moneysavingexpert.com/new...ffect-millions

I think that one of the questions people will be asking is , how does this effect the creditor who enters a default on a credit an account which has fallen into arrears.
Personally i do not think it will have any effect at all.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I think that one of the questions people will be asking is , how does this effect the creditor who enters a default on a credit an account which has fallen into arrears.
Personally i do not think it will have any effect at all.

I think I must have completely lost the plot here.

Durkin shows us that creditors have a duty of care to ensure that data reported is accurate, and that failure to do so is a breach of duty of care that could lead to a claim for injury to credit, as we have seen.

If the creditor is wrongly claiming a sum needed to remedy a breach, the data reported is mistaken. It is fundamentally inaccurate and therefore in breach of s.4(4) DPA.

So I'm really struggling to understand this argument that defaults can be reported notwithstanding serious errors in the notices provided.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

When section 89 refers to the breach not occurring it means in relation to the notice, it does not mean that the agreement returns to the condition it was in pre breach. The history regarding the repayments cannot change nor can the information recorded, it would be a breach of data protection principles as it would be a recording of an incorrect history.

The requirement to record data correctly is already encompassed in the DPA, hopefully courts may be more willing to enforce the provisions, but the case here brings nothing new to the table in this respect.

S.89, "Compliance with default notice", shows that when the notice is satisfied the debtor is no longer in breach of the agreement. There is therefore no termination, and no demands for payment of the balance. Whether the lender can then look at non-default termination is up to it and the T&Cs of the agreement, as far as I understand.

Given that the debtor is no longer in breach, he can not be considered to be in default of the agreement. Looking at the revised ICO document;

http://www.scoronline.co.uk/files/sc...ment_final.pdf

the ICO says that a default is recorded when the relationship has broken down, after which the default balance is reported (ie, the full balance at termination). In other words, the agreement has come to an end. A default means nothing else. I see no way that a default can be reported and the agreement continue.

But if the s.87 notice is satisfied, or is bad, the agreement hasn't come to an end. The default is wrongly reported.

Well, that's my possibly simplistic take on things. As for s.89, surely the late payment markers remain but the default marker is avoided?

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

S.89, "Compliance with default notice", shows that when the notice is satisfied the debtor is no longer in breach of the agreement. There is therefore no termination, and no demands for payment of the balance. Whether the lender can then look at non-default termination is up to it and the T&Cs of the agreement, as far as I understand.

Given that the debtor is no longer in breach, he can not be considered to be in default of the agreement. Looking at the revised ICO document;

http://www.scoronline.co.uk/files/sc...ment_final.pdf

the ICO says that a default is recorded when the relationship has broken down, after which the default balance is reported (ie, the full balance at termination). In other words, the agreement has come to an end. A default means nothing else. I see no way that a default can be reported and the agreement continue.

But if the s.87 notice is satisfied, or is bad, the agreement hasn't come to an end. The default is wrongly reported.

Well, that's my possibly simplistic take on things. As for s.89, surely the late payment markers remain but the default marker is avoided?

I do not intend getting into a prolonged debate about this. However a creditor can enter a default marker after six missed payments and the account will be in default, however he may not chose to enforce until some months later at which time he will have to send a section 87 notice.

The notice is for information, as said it does not make the account in default it records and reports the condition to the debtor and warns that enforcement is imminent.

Now back on topic please

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

What effect do we think this judgment has on the issue of general damages, following a proven incorrectly placed notice.

Is there any more likelihood that an English court will accept an unspecified damages claim following the £8000 awarded here.

The SC seemed not to either approve or disprove the Scottish award, but there again they did not rule it out. Would this be persuasive in lower court claims. I am unsure.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I do not intend getting into a prolonged debate about this. However a creditor can enter a default marker after six missed payments and the account will be in default, however he may not chose to enforce until some months later at which time he will have to send a section 87 notice.

The notice is for information, as said it does not make the account in default it records and reports the condition to the debtor and warns that enforcement is imminent.

Now back on topic please

I don't think this is correct at all, and it remains topical because of the impact the Durkin judgement may have on wrongly-defaulted accounts.

A creditor cannot simply report a default on a debtor's credit file unless it has served a notice of intent to file one, giving the debtor at least 28 days to fix the problem. This is set out in the ICO's guidance as well as the Lending Code.

It seems to me extremely odd to consider a creditor serving a separate notice of intent and later followed by a default notice, as both notices would have to specify the same breach (or, rather, the same sum needed to remedy the breach). And once a default is reported on the debtor's credit file the agreement is marked as ended (according to the ICO), so service of a subsequent s.87 notice is pointless because the debtor would not be able to remedy his breach.

Further, doing as you suggest would be a breach of s.87(1), which is why (IMO) notices of intent are bundled within s.87 notices. It would be a breach of s.87(1) because, in marking an account in default, the creditor has effectively ended the agreement without serving a s.87 notice, and is effectively claiming the balance by showing the default balance as payable (the default balance being all sums owed, not just the arrears).

The reality is that a s.87 notice specifying incorrect arrears followed by registration of a default must mean that the data is incorrect, and IMO this remains an important issue following yesterday's judgement.

I'm sorry to bang on about this, but I suspect those of us with wrongly-recorded defaults on our credit files will be looking to Durkin for a solution.