Taking Court Action Against Vodafone - Remove Default Notice

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Perhaps a little more formal.

1. Put 'Dear' instead of 'Morning'

2. I would remove the following as you are the one in control, not Vodafone: ... if required. Please can you confirm if you would like me to do this?

3. You should also confirm the new deadline to which you expect them to confirm their position on liability, or add a new line at the end saying "I look forward to you confirming your position on liability by [date]."

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Glad to hear it they have come back to you,and as I suspected, Lee has no further updates though I see no reason why Lee (no disrespect to him) has any need to provide you with weekly updates since the matter is now back in the hands of their legal team. So whatever response Lee has is likely going to be the same response from the legal team if it didn't already come from them.

I predict one of several outcomes happening:

1. Either they are going to deny that they are in negligent and/or breach of DPA and will provide their reasons why, I'll be interested in how they would seek to discredit the bank confirming that the signature was fraudulent on the DD mandate or they may just overlook it or even water that argument down.

2. They will accept or deny any wrongdoing but as a 'gesture of goodwill' (which has no legal meaning) they might offer you some compensation, maybe lower than what you are expecting. Tip, never take the first offer if it is way off what you are seeking. I also suspect they would want to gag you from discussing the terms of the settlement by adding in a confidentiality clause. Personally I would tell them where to go with that, because why should you be refrained from discussing your case and what was settled for the benefit of Vodafone? If their actions hadn't caused them to be negligent in the first place then it wouldn't have got this far. Also, what if you want to share your story in the media due to the distress it has caused you? The confidentiality clause is unlikely going to allow you to do that. Of course its up to you as to whether you want to accept a settlement with a confidentiality clause contained in it.

3. They might even seek to argue that they can't discuss anything because of ongoing criminal proceedings. As I've suggested in earlier posts, I call BS on that as criminal proceedings do not prevent you from seeking redress for their poor service and conduct. Remember, the civil standard of proof is a balance of probabilities which, in other words, is it more likely than not, that Vodafone have been negligent and/or reported inaccurate data to CRAs. You only need to tip the scales to 51% for a court to find in your favour.

Anyhow, let's see what their response is, but do keep an eye on the deadline for their response. You gave them 14 days so if you haven't heard from them with 3 days to go you might want to give them a gentle reminder of this that if no response is forthcoming then you will be looking to issue proceedings, unless they are seeking an extension of time for a response in which case any extension should be reasonable i.e. a further 7 days.

Morning! So today is the deadline as stipulated in the LBA. Vodafone UK Legal Team have confirmed receipt via email, as shown above, but there has been no further communication since. I have drafted the following to send in response:

Morning ********,

Thank you for your email confirming safe receipt of the Letter Before Action (the 'LBA'). The LBA states that:


'The above offer shall remain open for acceptance until 4:00pm on 27/10/17 at which point the offer shall be revoked...' and:
'If I do not hear back from you either way I shall have no other choice but to commence legal proceedings and seek the full amount of damages I believe I am entitled to ... without further notice to Vodafone.'

I understand that you are 'looking into the issues raised and will revert as soon as possible' and I appreciate that the LBA was not signed for and received by Vodafone until 16/10/17. As a result of this, I am willing to extend the deadline of 27/10/17 for a further 7 days, if required. Please can you confirm if you would like me to do this? If not then I will be commencing with legal proceedings as detailed in the LBA.

Many Thanks,


********



Do you think this is appropriate?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Glad to hear it they have come back to you,and as I suspected, Lee has no further updates though I see no reason why Lee (no disrespect to him) has any need to provide you with weekly updates since the matter is now back in the hands of their legal team. So whatever response Lee has is likely going to be the same response from the legal team if it didn't already come from them.

I predict one of several outcomes happening:

1. Either they are going to deny that they are in negligent and/or breach of DPA and will provide their reasons why, I'll be interested in how they would seek to discredit the bank confirming that the signature was fraudulent on the DD mandate or they may just overlook it or even water that argument down.

2. They will accept or deny any wrongdoing but as a 'gesture of goodwill' (which has no legal meaning) they might offer you some compensation, maybe lower than what you are expecting. Tip, never take the first offer if it is way off what you are seeking. I also suspect they would want to gag you from discussing the terms of the settlement by adding in a confidentiality clause. Personally I would tell them where to go with that, because why should you be refrained from discussing your case and what was settled for the benefit of Vodafone? If their actions hadn't caused them to be negligent in the first place then it wouldn't have got this far. Also, what if you want to share your story in the media due to the distress it has caused you? The confidentiality clause is unlikely going to allow you to do that. Of course its up to you as to whether you want to accept a settlement with a confidentiality clause contained in it.

3. They might even seek to argue that they can't discuss anything because of ongoing criminal proceedings. As I've suggested in earlier posts, I call BS on that as criminal proceedings do not prevent you from seeking redress for their poor service and conduct. Remember, the civil standard of proof is a balance of probabilities which, in other words, is it more likely than not, that Vodafone have been negligent and/or reported inaccurate data to CRAs. You only need to tip the scales to 51% for a court to find in your favour.

Anyhow, let's see what their response is, but do keep an eye on the deadline for their response. You gave them 14 days so if you haven't heard from them with 3 days to go you might want to give them a gentle reminder of this that if no response is forthcoming then you will be looking to issue proceedings, unless they are seeking an extension of time for a response in which case any extension should be reasonable i.e. a further 7 days.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys, quick update. I have received an acknowledgement of receipt of the LBA from the UK Legal Team:

Thank you for your email and letter regarding the above account.

We write to acknowledge safe receipt. We are looking into the issues raised and will revert as soon as possible.

If you have any further queries in the meantime please direct them to me directly.

Lee is also still providing me with almost weekly updates on whether or not he has any info to share (none so far).

[beaconsman]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Vodafone: where do i start! After being with them since 2010, my contract was up so went sim only, that expires in November this year,,(yey). Time to move on as they wont even offer me a loyalty discount which they have done for the last few years! Plenty more suppliers out there,,,

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

There’s no harm in doing that. If you are going to email the LBA, I would mark your letter me underneath the Vodafone address as saying: “BY POST AND EMAIL TO: [email address].

Given that you’ve already sent a LBA before and not bothered to do anything after, they might ignore it again.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

So my LBA will be delivered today and they will have 14 days to respond. Do you think its worth emailing the same LBA to CEO with a covering email? My last pre action letter was ignored despite being sent by recorded delivery, the only response I have had came from an email to the CEO's office. Plus it would give me an electronic record that they have received the letter, along with my proof of delivery. Not sure if its worth doing or not so happy to take advice.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Morning Guys,

My LBA is complete and will be sent today! Thanks again for everyone's help and advice!

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I would say it is reasonable yes and would reflect the length of time this dispute has been going on for plus the obvious problems you might have in obtaining credit at all or at the very least, at a favourable rate. I was searching for some data protection cases yesterday and came across a Scottish court case of a neighbour dispute. One neighbour had installed CCTV and began recording the others - the court held there were several breaches of the DPA and calculated those breaches at £10 per day over the course of around 3 years or just under. The total award came to £8,634 per each person.

The case judgment can be read here -> https://www.scotcourts.gov.uk/search...0-ff0000d74aa7

The circumstances in that case are obviously different to yours but again, there is a lack of authority as to guidelines on the amount of awards. Also note that the Scottish case is not binding on England and Wales cases, but is persuasive authority. I've extracted what the judge said at the end below.

[113] The Act does not give guidance as to levels of compensation. The pursuers have claimed sums which are calculated based on a nominal amount of £10 per day for each of them, multiplied by the number of days which such data processing has taken place in breach of the Act (namely since the equipment was installed in October 2013 to the raising of the action), under subtraction of one month per year to allow for when they were likely to be absent from the property, for example on holiday.


[114] This method of calculation is not held out as based on anything but pragmatism. No authority exists for compensation in these circumstances. Such case law as exists relates to individual, one-off errors, such as loss of a file, and is not similar. It is necessary for the pursuer to formulate a claim, however little guidance there may be, and I cannot say that the sum of £10 per day per head is an unreasonable one. Having regard to the evidence of the effect of long-term surveillance and resulting stress, I accept that this is a reasonable, and probably moderate, basis of claim and that the methodology is logical. This aspect would benefit from authoritative decision.


[115] Counsel adopted a neutral position, as he was equally hampered by the lack of authoritative guidance. He did not seek to dispute this method of quantification, or the sums sought.


[116] I have no doubt that an award of compensation to each of the pursuers is merited. They have suffered a relatively extreme breach of the Act. The effect on their daily lives has been long-running and debilitating. There is no reason to distinguish between them, as their experience has been a joint one and the distress of the one is likely to affect the other.



[117] I will award the sums sought. These are stated at 912 days, approximately two and a half years, at £10 per day, less four weeks a year for their absence. I do not comment on the correctness of this approach, simply that it appears stateable and logical. The sums sought are £8,634 each. Interest is sought at half the judicial rate from date of decree only. I will award each of them such a sum. Parties did not agree the position on expenses. I will therefore invite them to do so, failing which a hearing on expenses can be appointed. Parties should contact the court to arrange a hearing if this remains necessary.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thanks Rob, I have removed the original post. Do you think that asking for '£5.00 per day by way of compensation which I consider to be a reasonable sum that reflects the effects of the damage to my credit score and the length of time and resource I have spent in relation to this ongoing dispute' is enough detail at this stage? It just seems a bit arbitrary for if the courts ever have to decide, But I am no expert and not sure at what stage this sum would be scrutinised?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I don't think you need to include this in the letter, not necessary at this stage, only if it went to hearing. I would remove the post anyway since there are authorised Vodafone employees who use this forum and you don't want it to be used against you in any way.

If the matter falls into small claims tack you wouldn't be able to recover costs of time spent on the case, unless you are pleading aggravated damages (which you may as well anyway).

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Removed

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thanks again Rob, I will make the necessary amendments. I will go with the £5.00 per day and also prepare a breakdown for distress caused, damage to credit score, harassment by way of threatening letters and the issues with the mortgage/continued rent in case I need it at any point. I will also amend the last paragraph so it reads pretty much as you suggested, as I would accept a lesser amount to gain a quicker resolution. I am happy to pay the full court fees and will be sending the letter this week.

Will keep you posted!

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Looks fine, but I would suggest the following amendments

As you are aware, for over two years I have been grappling with Vodafone in respect of a fraudulent account that was set up in my name in July 2014 (the ‘Account’).

Small change the word 'account' as it was capitalised when it should not have been.

how that this account was referred to the fraud team several times due to high usage in Spain and Portugal (which I might add that I was in fact in the UK [working] when the phone was used abroad and can prove this)

Inserted the above, but you may want to tweak it or remove it if you can't prove or explain your whereabouts at the time the phone was used.

Your enclosed documents does not include the correspondence from the bank confirming the DD mandate was fraudulently signed. I would include this as part of your relevant documents as it is one of the most important, if not the most important document that would help to support your claim that the account was fraudulent.

· Pay £5000 by way of compensation which I consider to be a reasonable sum that reflects the effects of the damage to my credit score and the length of time and resource I have spent in relation to this ongoing dispute OR £4170 which is calculated at a rate of £5.00 per day up to and including the date of this letter, which I consider to be a reasonable sum in respect of Vodafone’s statutory breaches and/or negligence;

The above is an either/or situation not both, hence I put in the word 'OR' which was the intention to suggest that you could calculate your compensation in one of these ways. If your seeking £5,000 then you might be asked how you arrived at that amount so be prepared, the latter option at £5 per day might be considered more reasonable but is up to you.

Finally, have you considered the court fees you are going to pay on this? Between £3,000 - £5,000 it will cost you £185 to issue the claim and then a further £335 to pay the hearing fee if it gets to that stage - are you happy paying those fees?

One thing that might be reasonable is to suggest in your letter that, if they agree to settle within the 14 day period, you will accept a lower sum of compensation for early settlement, however if you are forced to issued a claim then you will seek the full damages as outlined. You might want to amend the last paragraph to say something like the below:

Should you choose to accept the terms of the offer within the stipulated period, I am prepared to agree a smaller compensation sum of £2,085 by way of early settlement. If, however, I do not hear back from you by [date] or you reject my offer then I shall have no other choice but to commence legal proceedings without further notice to Vodafone. In this case, I will seek the full amount of damages I believe I am entitled to, which is £4,170 as set out above as well as any costs incidental to the claim and including interest at a rate the Court sees fit.

If you have a letter from Vodafone's legal team I would suggest you direct the LBA to that address it came from and make sure to put the attention of Vodafone legal team or whatever they call themselves.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thanks for your ongoing support Rob, I have been through the letter and drafted as follows (modified sections highlighted in bold):

I write with reference to the above matter.

This letter before action is sent in accordance with the Practice Direction Pre-Action Conduct and Protocols (the ‘Practice Direction’) as set out in the Civil Procedure Rules 1998.

The purpose of this letter is to place Vodafone on notice that I consider it to be in breach of the Data Protection Act 1998 by inaccurately reporting a default to credit reference agencies in connection with a fraudulent account. I also believe Vodafone to be negligent by causing or permitting the default be reported to credit reference agencies without reasonable belief. Furthermore, the way in which Vodafone have acted by threatening on various occasions to instruct third party debt collectors to recover the alleged debt also gives rise to an actionable claim for harassment.

Background and nature of the claim

As you are aware, for over two years I have been grappling with Vodafone in respect of a fraudulent Account that was set up in my name in July 2014 (the ‘Account’). The Account was set up without my authorisation and as a result of an alleged non-payment, Vodafone have terminated the contract and reported the Account to credit reference agencies as having defaulted. At no point prior to the existence of the Account being created have I been a customer of Vodafone. On the contrary, I was, and still am, contracted to another mobile service provider.

Except for the defaulted Account, my credit file is in an excellent condition free from any recorded adverse entries. Naturally, the default and/or other adverse information reported by Vodafone to the credit reference agencies has caused considerable distress and inconvenience the result of which, has prevented me from applying for a mortgage and other credit at a favourable interest rate. Given the seriousness of my complaint, it is my contention that Vodafone is under a duty to investigate my complaint in order to reasonably satisfy itself that the Account was not fraudulent before reporting the default to the credit reference agencies. By notifying the credit reference agencies of the default, Vodafone owes a duty of care to ensure that the information reported is accurate. To date, I have received no supporting evidence from Vodafone indicating that the Account is not in any way fraudulent. In the circumstances, by causing and/or permitting the default to be reported to credit reference agencies without conclusive proof that the default is accurate, Vodafone are in breach of its duty of care (see Durkin v DSG Retail Ltd and another [2014] UKSC 21). This unlawfulness is further compounded by the fact that Vodafone have repeatedly stated that there is no evidence of fraud on the account, citing normal usage to UK landlines and mobiles as one of the justifications for this. However, Vodafone’s own account notes, obtained by myself following a request for information under the provisions of the Data Protection Act 1998 dated 19/10/2016, show that this account was referred to the fraud team several times due to high usage in Spain and Portugal. Vodafone have since admitted in a letter dated 03/04/2017 that the Account may be linked to a previous mobile phone scam back in 2014 yet it insists that I remain liable for the Account.

Enclosed Documents

Although Vodafone are already in possession of the relevant evidence which I intend to rely on in support of my claim, I have nonetheless enclosed the following key documents for your perusal:

· Overdue payment – final notice dated 28/07/16
· Letter from Vodafone Fraud Team dated 28/11/16
· Vodafone 689728830 Crystal Account Notes
· Vodafone 689728830 Siebel Account Notes
· Letter from Vodafone UK Legal Team dated 03/04/17

Action required

In the spirit of reaching an amicable agreement and to obviate the need to commence legal proceedings, I propose that Vodafone, in full and final settlement:

· Immediately notify all credit reference agencies to remove all adverse entries in connection with the Vodafone account reference 689728830. For the avoidance of doubt, the Account shall be permanently removed so that it no longer exists on any file of information credit reference agencies may hold about me;

· Pay £5000 by way of compensation which I consider to be a reasonable sum that reflects the effects of the damage to my credit score and the length of time and resource I have spent in relation to this ongoing dispute OR £4170 which is calculated at a rate of £5.00 per day up to and including the date of this letter, which I consider to be a reasonable sum in respect of Vodafone’s statutory breaches and/or negligence;

· Provide an assurance that Vodafone (including any third parties acting on its behalf), shall not attempt to recover or otherwise pursue any monies in connection with the Account.

The above offer shall remain open for acceptance until 4:00pm on 27/10/17 at which point the offer shall be revoked. If you do not accept this offer or deny the allegations set out herein, please provide a detailed response by the above mentioned date. If I do not hear back from you either way, I shall have no other choice but to commence legal proceedings and without further notice to Vodafone. If that is the case, Vodafone’s liability will likely further increase as I will be seeking additional costs incidental to the application including interest at a rate the Court sees fit.

I look forward to hearing from you by 27/10/17.


******

The main additions are; mentioning the threats to instruct third party debt collection agencies, the mention of Vodafone's inconsistencies in their notes/fraud investigation, the documents I have chosen to include, the compensation amount and the addition of the comment referencing the effects of the bad credit score and the dates as I plan on sending this letter on Friday.

Do you think the documents are sufficient? I have extensive records of all communications but feel these are the most important. The overdue payment - final notice letter is an example where they threaten to instruct debt collectors. The letter from the Vodafone Fraud team simply states that there is no fraud found. The two account note documents show the full account from opening to closing, including the early referrals to the fraud team, the point at which I first contacted them (failed to pass DPA checks but reported the fraud), the results of the fraud investigation and any and all follow up contacts. The letter from the Vodafone Legal team is the one that mentions the link to the court case. I'm not sure if anything else would be needed?