Taking Court Action Against Vodafone - Remove Default Notice

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

The letter is simply an example of what you might say, I don't have all of the knowledge that you do so if the contents of the example is not true, then remove it or amend it as you feel necessary. Most of the things I put in brackets are optional and wasn't sure if they were true or not but to also get you thinking as to whether those things occurred.

Like I said before, it is difficult to quantify your claims for breach of the DPA/negligence. If I recall, the £8,000 was a sum put forward by Durkin and wasn't challenged by HFC so that stood. The other claims of loss were not granted because the Scottish courts had already ruled that there was insufficient evidence to prove those losses, and the Supreme Court did not have jurisdiction (I think) to look at those claims. So I wouldn't get too engrossed into the other losses that were being claimed.

If the houses we were looking at were around the £180,000 mark and the governments house price index shows a 4.9% increase from June 2016 to June 2017, then our loss would be roughly 5% of £180,000. So £9000. Would this then have to be halved as its a loss shared between me and my partner?

Perhaps one argument as to your loss but in order to prove it, you have to show that on balance, the default would have more likely than not had an effect on you being given a mortgage. A recent default is arguable that it would prevent (in most cases) applications for mortgages being rejected but there is also an argument that you wouldn't get rejected from every mortgage provider, though the default is more than likely to have an effect on the interest rates. So you might want to look at perhaps what you might have been given as a favourable interest rate against one which is for those who may have a poorer credit history - if there are any mortgage providers out there who do this! You could then claim the difference on a property that you would have likely been given for a mortgage.

Then the other issue with claim would be quantifying the rent as a loss. I imagine it would not be fair to claim for the full amount spent on rent as some of that would have been spent on the mortgage (accommodation) anyway. Do I need to work out a percentage of that rental cost that could be classed as 'dead money'. Or should I put the full cost in? I would like to claim the maximum I am reasonably entitled to in order to send a message to Vodafone but at the same time, based on the workings above, that now could be as much as tens of thousands of pounds. Would that move it away from the small claims court?

Are you paying more in rent now than you might have been had you been given a mortgage for a property? If so, you could claim the difference between the two as one option. Alternatively you could claim a specified amount of money for the loss of opportunity to get yourself on the property ladder and having 'owned' a percentage of the property that would have been taken out on a mortgage. Again, there's always two sides to an argument and not doubt Vodafone would seek to rebut this type of argument.

The problem you have is that all of this is speculation and ordinarily you would make an unspecified claim and then suggest to the court that you believe your damages would be in the range of X to X. However, unspecified claims now cost £10,000 to issue which is a hell of a lot and I am sure you wouldn't want to be paying that much money for this type of claim. Therefore, you should think what is a reasonable amount of money in terms of compensation given your circumstances, taking into account that the higher the compensation, the higher you will pay in fees and the more likely that Vodafone will challenge your claim.

Alternatively, the £5 per day as damages seems like a reasonable starting point (this sort of tactic was raised in another DPA thread) or you might even be able to stretch it to £10 per day in your case and the issues you have had but its your call.

Lots to think about and its best to make sure you get it right first time than look silly and having to backtrack if you get things wrong. You should also consider reducing your claim for compensation if necessary in order to get the desired outcome, which is to remove the default from your credit file that CRAs hold about you.

My view of things is in no way the only way nor is it correct (each lawyer has a different view of things). Ultimately, it will be down to a judge to decide whether the compensation you seek is at all proportionate to the claim.

If I am being honest, and given the facts that I know so far, anything between £1,000 - £2,000 would not be unreasonable. If you start claiming more than this, then you are going to likely need some evidence or strong arguments as to why your claim warrants this amount of compensation.

P.s. if the damages claim goes over £10,000 then it falls outside of the small claims track.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

OK so had a quick look at the docs I have scanned in and there are several letters stating:

'You have 14 days to pay - please call us now on 03333 040 170 (standard call charges apply). If you don't, we'll have to do two things:


1 Register your account as a bad debt with a credit reference agency. This means you may find it difficult to get loans, credit cards and other phone contracts in the future.
2 Instruct a debt collection agency to collect the payment for us.'

To this date I have not been contacted by any debt collection agencies.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Rob,

Just looking through your template on my lunch and have a few questions. Firstly, where you say 'Furthermore, the way in which Vodafone have acted by instructing third party debt collectors on various occasions to recover the alleged debt also gives rise to an actionable claim for harassment...' I have not received any communications from any third parties regarding collection of the outstanding, though I believe this has been mentioned as a possibility in letters sent to me from Vodafone (I will check tonight when I get home).

Secondly, I am still struggling to quantify my claim. In the case mentioned in your template the following was initially awarded:

• £8,000 for injury to his credit rating;
• £6,880 for the extra interest which he had to pay; and
• £101, 794 for the loss of capital gain arising from his inability to purchase the Spanish property

I would like to know how the £8000 was calculated or was it just picked as an estimate value for the distress caused? I have searched online for a breakdown but can't find it. I am not sure what the £6880 interest is but I guess it may have been charged on his loan in relation to this case. I have not had to pay out any interest or anything other than (potentially) increased insurance premiums and a further years worth of renting accommodation. As for the loss of capital gain, this seems similar to my position in that we were unable to purchase a property in April 2016. Do you know how this was calculated? I was planning on calculating this as the difference in house price from when we got the initial mortgage agreement in principle until now. For example:

If the houses we were looking at were around the £180,000 mark and the governments house price index shows a 4.9% increase from June 2016 to June 2017, then our loss would be roughly 5% of £180,000. So £9000. Would this then have to be halved as its a loss shared between me and my partner?

Then the other issue with claim would be quantifying the rent as a loss. I imagine it would not be fair to claim for the full amount spent on rent as some of that would have been spent on the mortgage (accommodation) anyway. Do I need to work out a percentage of that rental cost that could be classed as 'dead money'. Or should I put the full cost in? I would like to claim the maximum I am reasonably entitled to in order to send a message to Vodafone but at the same time, based on the workings above, that now could be as much as tens of thousands of pounds. Would that move it away from the small claims court?

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Di, thanks for your response. Yes I agree, I probably can't assert that they were negligent in opening the account with insufficient documentation as I am not sure what was presented in CPW at the time. My case now purely relates to Vodafone's handling of the situation from when the fraud was first discovered. I was on the electoral register at my parents house through out University but registered for council tax at my term time address. With regards to the default marker, I have no other business with Vodafone and they have confirmed that the default marker is correct and that it is for the £800+ that was recalled by my bank when they did their fraud investigation.

Thanks for the template Rob, I will revise my letter this week and post on here again before sending.

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Yes, I agree with Diana regarding the allegations of negligence in general, unless you are able to prove on balance of probabilities that they were negligent. Personally, I think its a bit of a stretch to interpret that the letter from their legal team might suggest that Vodafone will collect the debt from the fraudsters. If that were the case, then (a) mentioning that in the letter would be of no relevance because it would have no effect on Abbie and (b) why is the default marker still being reported and the account information not being removed?

Below of a letter I have used before in relation to breach of data protection and negligence (insofar as relating to the default and inaccurate information). I'd amended to reflect what your circumstances as an example but there are of course some stuff in brackets that you might want to change or update/amend. It is by no means the best example but gives you an idea of how to set out an LBA for breach of DPA and negligence so don't simply copy and paste it - you should adapt to suit your needs if you are wanting to still press ahead with court proceedings. I attached word version at the end of the post.

------------

Dear Sir or Madam,

LETTER BEFORE ACTION

Vodafone account number: [Insert reference number]

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 instructing third party debt collectors on various occasions 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 or around [DATE] (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 adverse entries. Naturally, the default 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/or 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 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 admitted in a letter dated [INSERT DATE], that the Account may be linked to a previous mobile phone scam back in 2014 (of which I am led to believe Vodafone were made aware by the Metropolitan Police Mobile Crime Unit in 2014) yet it insists that the 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:

· Document 1
· Document 2
· Document 3
· Document 4

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 [number]. 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 [£amount] by way of compensation which I consider to be a reasonable sum that reflects the length of time and resource I have spent in relation to this ongoing dispute] OR [pay [£amount] 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 [14 days] 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 [DATE].

Yours faithfully,


[Your Name]

Enc.
[List the documents you enclose]

[Diana M]

Re: Taking Court Action Against Vodafone - Remove Default Notice

The Vodafone account notes that I obtained confirm that the contract was opened in a carphone warehouse store, though Vodafone have always refused to supply me with any details of this and haven't confirmed this when questioned.

I'm not sure how you can "assert that Vodafone have been negligent in allowing a contract to be opened with insufficient documentation" when the account was opened in a Carphone Warehouse store where presumably the documents were presented.

As I understand it all new mobile phone contract applications are credit checked at the point of sale in the Carphone Warehouse store through a system which links to Vodafone's system. It would usually check the Electoral Roll on the CRA file against the information given to the Carphone Warehouse.

I have no idea what documents they ask for but proof of address might be one, such as a photo driving licence or bank statement etc.

Were you on the Electoral Roll at your parents' address (where the Default was registered) or at your term-time uni address at the time you completed that questionnaire?

If the account was opened in a different name to you and at a different address (not your parents or term-time uni address given to the 'market researcher') then why didn't that flag up on the Vodafone/Carphone Warehouse credit check unless Carphone Warehouse didn't carry out proper checks?

https://selfhelp.carphonewarehouse.com/SelfHelp/request.do?view()=c%7B43171eb0-ce14-11de-e56d-000000000000%7D

Consider whether the reason Vodafone hasn't given you information of the account opening may be because they weren't directly party to it if it was done in a Carphone Warehouse store in person with one of their advisers?

From what you say Vodafone has refunded you (via your bank) all the charges they collected by Direct Debit which I presume would have been for line rental, air time, texts etc. but was there also a handset which would have had a trackable IMEI number?

Perhaps when that letter from the Legal Team said the account "will be left cancelled and collectable" it meant that once/if the perpetrators of the fraud are convicted then Vodafone will be in a position to "collect" the money they've lost from them (i.e. the fraudsters under the Proceeds of Crime Act etc).

From what I've read on the internet (so not reliable ) there was a massive fraud which may have resulted in Vodafone loosing a lot of money which they intend to recover.

You need to aim at the right target before you accuse them of being negligent in court.

The Default marker may be a different issue.

Di

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

So, I have written out my SAR request to CPW following their instructions online but have some issues. Firstly, they say that they only accept cheques and I do not have a cheque book (will sort that this week). Secondly I am providing them with proof of (my parents) address, though I don't know if that's what they have on the system. It could be my term time address which I no longer live at, my parents address or a mystery one. They also ask for the CPW account number which I don't have, but will send them the Vodafone one.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I find it all really confusing

You had a term time address which you say you gave to some sort of survey ( can you remember what it was about?) and your permanent address ( parents) yet the account was opened at a third address unknown to you at all.

Somehow VF traced you to your parents address where you say they placed the default - how on earth did they manage that?

Do you still live there?

Have you thought of sending a SAR to CPW ?

I must say you are a very fortunate student not to miss £800 coming out of your current account - I was only complaining loudly the other day that breakfast has gone up by 20% over the summer in the Library cafe but that's by the bye

It is confusing! And I'm not even 100% certain that thats where my details were taken from, it just seems to fit the bill. They could have been stolen from my bins for all I know but that seems less likely. In answer to your questions the survey thing was market research about a load different brands, my awareness of them, if I'd used them, seen them advertised etc etc I don't think there were any mobile phone brands in there but were all major brands and the questionnaire was very convincing (well written with brand logos etc). I know that shouldn't have made a difference! From what I remember there was the questionnaire with a personal details section and a separate form for the payment, which I may have put my parents address on but don't believe I did. All this information was, of course, given to the police when the fraud was reported.

As for the payments coming out, you have to bear in mind that I did this questionnaire at some point during my final year (2013/14). The account wasn't set up until July 2014 by which time I had graduated and was in full time employment. I know that doesn't excuse me for being slack and not noticing, but I also have rent, gym, O2 phone contract, car insurance etc etc coming out each month. I am kicking myself for not noticing but doesn't change the fact that I didn't set up the contract so indeed it is by the bye.

As for the SAR to CPW, no I hadn't considered that. Do you think they hold that information? I will look into making a request in the morning, will be worth doing before I instigate legal proceedings.

[warwick65]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I find it all really confusing

You had a term time address which you say you gave to some sort of survey ( can you remember what it was about?) and your permanent address ( parents) yet the account was opened at a third address unknown to you at all.

Somehow VF traced you to your parents address where you say they placed the default - how on earth did they manage that?

Do you still live there?

Have you thought of sending a SAR to CPW ?

I must say you are a very fortunate student not to miss £800 coming out of your current account - I was only complaining loudly the other day that breakfast has gone up by 20% over the summer in the Library cafe but that's by the bye

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Something struck me

You say bills were sent to an unknown address but the default was placed against you at your current address.

I also assume the contract was opened in a store, I don't think I have ever signed a DD to Vodafone - all done over the phone

Yes I have not received any bills to my home address (which is actually my parents and the address the default was placed against). My parents are very switched on (unlike me!) and have not missed any mail. When I initially discovered the fraud I had a really hard time accessing the account over the phone due to not being able to pass the DPA checks. Then when I finally got them to carry out the first fraud investigation that was sent to an unknown address and I never received it. I find this even stranger as I believe the address I gave on the questionnaire was my term time address whilst I was at uni.

The Vodafone account notes that I obtained confirm that the contract was opened in a carphone warehouse store, though Vodafone have always refused to supply me with any details of this and haven't confirmed this when questioned.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

How did you find out that a Vodafone account was set up in your name? Did you give anyone your details to a survey type person as suggested in the criminal trial Vodafone has made reference to?

Yes sorry, that doesn't read as intended. The contract was set up using my personal details, which were most likely obtained from the questionnaire as it matches the M.O. described by the Police. I realised the account was set up in my name when I saw that money had been coming out my account, gutted that it took me a year to realise though!

With regards to the Halliday vs Creation case (thanks for showing me this!), I see that the compensation was awarded for distress. The court rejected substantial compensation in line with injury to feelings awarded in discrimination cases but in this case the breach arose from a mechanical error. It does not mention whether or not the company removed the default when they were made aware that it was made in error, but it does mention the data controller proving that they have taken reasonable care to comply with the DPA as a defence. I would say my whole argument is that they didn't.

Would it also be right to claim for my time wasted on top of the distress caused? And direct financial loss from having to hold off on purchasing a house? Would this be quantified as a percentage of the total cost to rent the house we have been living in over the past year or maybe as a difference in house prices over the year? Would a mortgage agreement in principle from a bank from last year be enough to prove that we were looking at buying a house then? I am also told that a poor credit score can also affect your insurance premiums, though I am not sure how this is worked out.

The other thing not mentioned in the Halliday vs Creation case is at what point the default was removed and how that was handled. I assume this was a court case brought purely after the incorrect default had been rectified and its possible that the company corrected it immediately and were full of apologies?

[warwick65]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Something struck me

You say bills were sent to an unknown address but the default was placed against you at your current address.

I also assume the contract was opened in a store, I don't think I have ever signed a DD to Vodafone - all done over the phone

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

On 07/05/2014 a Vodafone mobile phone contract was created using my personal details obtained through identity theft. This was reported to the police on the 8th July 2015 (who provided the crime reference number NFRC150601097082)

How did you find out that a Vodafone account was set up in your name? Did you give anyone your details to a survey type person as suggested in the criminal trial Vodafone has made reference to?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

again please don't shoot the messenger here, I am playing devils advocate.

I am not saying they will say so, just think this should be addressed. The last thing I want for you is to take Vodafone to court and be told "no, this will jepordise the fraud case, throw it out!"

Why have someone who works for a law firm and not pick her brains eh?

They won't throw it out, worst case scenario the claim is stayed. But I suggest you read this case Akcine Bendrove Bankas Snoras v Antonov and another [2013] EWHC 131(Comm) for a full run down of the principles of staying the claim. The court has discretion to stay proceedings until conclusion of the criminal trial but "is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice"

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Haven't looked at your letter yet but will do later.

The case in question is Halliday v Consumer Creation Finance, and I correct myself the default was recorded over an 8 month period not one month. This case however is slightly older where in order to get compensation you had to prove loss, however this is no longer the case as newer case law says you don't need to prove loss you can claim distress directly.

http://www.macfarlanes.com/media/127...ection-act.pdf