Taking Court Action Against Vodafone - Remove Default Notice

[AbbieA]

Hi Guys,

Sorry if this is in the wrong place but this is my first post on the forum, moderators feel free to move if necessary.

I am in the middle of a long battle with Vodafone over a fraudulent account set up in my name back in 2014. This was discovered in July 2015 and immediately reported to the Police and ActionFraud who provided a crime reference number. It was also reported to my bank who, having conducted an investigation, determined that the signature used to set up the Direct Debit Instruction was fraudulent. As a result of this, the bank recovered all monies paid to Vodafone.

Since then, Vodafone have not accepted that this account was created fraudulently and have continued to send correspondence to an unknown to me address provided by the fraudsters when they created the account. They have also applied default notices to my credit record and have refused to remove them. I have made repeated requests asking them to supply me with details of any fraud investigation conducted, the identification documents and proof of address given when the account was opened and all other information pertinent to the fraud investigation and I have numerous email responses where they have refused to supply me with these.

In 30/10/16 I sent a letter to Vodafone by recorded delivery advising that I plan on pursuing them through the Consumer Ombudsman and will take legal action if necessary, if they refuse to remove the default notices from my credit score. They confirmed receipt of the letter but refused to remove the default notices or provide me with the information I requested. As a result I contacted the consumer ombudsman who stated that, having previously investigated the account when I was still gathering evidence and subsequently closed their investigation, will no longer investigate.

On 12/12/16 I made a request for information under the provisions of the Data Protection Act 1998 and obtained documents relating to the account. This was supplied on the 23rd of January and showed that Vodafone had been told by my bank that the Direct Debit Instruction contained a fraudulent signature and that the account had been referred to their internal Fraud team numerous times. It also has all my correspondence and repeated requests for further information but specifically does not include details of the fraud investigation or the identification documents and proof of address used to open the account.

As a result of this I feel I am now left with no option but to pursue Vodafone through a smalls claim court (?) to get them to remove the default notice. I have sent a Pre Action Protocol stating my intent. In my Basis of Claim I assert that Vodafone have been negligent in allowing this contract to be opened with insufficient documentation and have incorrectly applied a debt and default notices to my name/credit score. I further assert that the fraud investigation carried out by Vodafone has been insufficient. I can and have provided evidence to back up these claims.

So in summary, it’s a horrible situation that has caused me untold stress for nearly 2 years. Vodafone have yet to respond to my Pre Action Protocol letter and have until next week to do so (within the 28 days). I am preparing my next steps either way but wish I had posted on here sooner as I need advice on the following:

Can a small claim court force a company to remove a default notice?
Should I be pursuing Vodafone for damages?
Is there any way to get the Ombudsman to re-investigate now that I have all the evidence I need?

Any help appreciated guys!
Thanks, Abbie!

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Further information:

I initially contacted the financial ombudsman who referred me to the consumer ombudsman. They concluded that it was out of their "terms of reference". Not sure what they mean by that, this is their actual response:

On checking our records we found that we had set up a case for you in July 2016 regarding the same issue with Vodafone. At this time you were informed that the Ombudsman had made the decision that we were unable to investigate the complaint due to being outside our terms of reference. As this decision was made at this time we are still unable to investigate the case.




I also contacted the ICO in early February and was told they would look into it, but have yet to receive a response other than their initial acknowledgement. I'll chase them up tomorrow. For information, my correspondence with the ICO:

I am writing with regards to an ongoing dispute with Vodafone Limited and would like to request the ICO’s assistance with the following:

Recovery of personal details from Vodafone that were obtained by criminals and used to set up a fraudulent account in my name;

Instructing Vodafone to remove the default notices associated with this fraudulent account from my credit file.

I am concerned that Vodafone:

is not keeping my information secure and has been sending correspondence to an address used by fraudsters;

holds information about me that is inaccurate, i.e. debt and default credit notices;

refuses to provide me with information pertinent to a fraud investigation.

I have attached the following documents:

Completed Information Handling Form
Letter sent by myself to Vodafone formally requesting that they provide me with details of the fraud investigation and the identification documents and proof of address used to open the account remove the default notices and that they remove the default notices from my credit file;

Vodafone’s records of all my correspondence with them obtained under the provisions of the Data Protection Act 1998.

[nemesis45]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

Sorry if this is in the wrong place but this is my first post on the forum, moderators feel free to move if necessary.

I am in the middle of a long battle with Vodafone over a fraudulent account set up in my name back in 2014. This was discovered in July 2015 and immediately reported to the Police and ActionFraud who provided a crime reference number. It was also reported to my bank who, having conducted an investigation, determined that the signature used to set up the Direct Debit Instruction was fraudulent. As a result of this, the bank recovered all monies paid to Vodafone.

Since then, Vodafone have not accepted that this account was created fraudulently and have continued to send correspondence to an unknown to me address provided by the fraudsters when they created the account. They have also applied default notices to my credit record and have refused to remove them. I have made repeated requests asking them to supply me with details of any fraud investigation conducted, the identification documents and proof of address given when the account was opened and all other information pertinent to the fraud investigation and I have numerous email responses where they have refused to supply me with these.

In 30/10/16 I sent a letter to Vodafone by recorded delivery advising that I plan on pursuing them through the Consumer Ombudsman and will take legal action if necessary, if they refuse to remove the default notices from my credit score. They confirmed receipt of the letter but refused to remove the default notices or provide me with the information I requested. As a result I contacted the consumer ombudsman who stated that, having previously investigated the account when I was still gathering evidence and subsequently closed their investigation, will no longer investigate.

On 12/12/16 I made a request for information under the provisions of the Data Protection Act 1998 and obtained documents relating to the account. This was supplied on the 23rd of January and showed that Vodafone had been told by my bank that the Direct Debit Instruction contained a fraudulent signature and that the account had been referred to their internal Fraud team numerous times. It also has all my correspondence and repeated requests for further information but specifically does not include details of the fraud investigation or the identification documents and proof of address used to open the account.

As a result of this I feel I am now left with no option but to pursue Vodafone through a smalls claim court (?) to get them to remove the default notice. I have sent a Pre Action Protocol stating my intent. In my Basis of Claim I assert that Vodafone have been negligent in allowing this contract to be opened with insufficient documentation and have incorrectly applied a debt and default notices to my name/credit score. I further assert that the fraud investigation carried out by Vodafone has been insufficient. I can and have provided evidence to back up these claims.

So in summary, it’s a horrible situation that has caused me untold stress for nearly 2 years. Vodafone have yet to respond to my Pre Action Protocol letter and have until next week to do so (within the 28 days). I am preparing my next steps either way but wish I had posted on here sooner as I need advice on the following:

Can a small claim court force a company to remove a default notice?
Should I be pursuing Vodafone for damages?
Is there any way to get the Ombudsman to re-investigate now that I have all the evidence I need?

Any help appreciated guys!
Thanks, Abbie!

Hello Abbie,

The ICO will take some time to fully investigate the case but it is worth " prompting them from time to time.

Have you in the past made a Formal Complaint to Vodafone?

nem

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hello Abbie,

The ICO will take some time to fully investigate the case but it is worth " prompting them from time to time.

Have you in the past made a Formal Complaint to Vodafone?

nem

Yes I have made several, and I have evidence of all of them and all my requests for information up until I my DPA request. They have repeatedly said they have found no evidence of fraud due to their being 'normal usage to UK mobiles and landlines' on the account and they don't believe the handset would be used by fraudsters because it had already been out for a year. This is despite them blocking the account on several occasions due to high usage in Spain and Portugal and spending over £100 in a day calling overseas numbers (which I wouldn't have known without the dpa request because they refused to give me any info).

[nemesis45]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Yes I have made several, and I have evidence of all of them and all my requests for information up until I my DPA request. They have repeatedly said they have found no evidence of fraud due to their being 'normal usage to UK mobiles and landlines' on the account and they don't believe the handset would be used by fraudsters because it had already been out for a year. This is despite them blocking the account on several occasions due to high usage in Spain and Portugal and spending over £100 in a day calling overseas numbers (which I wouldn't have known without the dpa request because they refused to give me any info).

I wonder if some " publicity" via an appeal to one of the national newspapers consumer journalists would help. VF despite all their statements on how well they have improved their customer " care it still has massive problems.
nem

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I wonder if some " publicity" via an appeal to one of the national newspapers consumer journalists would help. VF despite all their statements on how well they have improved their customer " care it still has massive problems.
nem

This sounds like a good idea but would it affect my chances taking them to court? I really just want the default notice to be removed and for this to be over now.

I have spoken with the ICO who have said it can take up to 30 days to investigate, they are still looking into it and will get back to me. I am also going to book some time off work to present my case to the CAB and see what they think.

Should I also be looking at legal advice? Maybe on a no win no fee basis? Surely there should be solicitors jumping over themselves to look at this, it looks like an easy win and I've already gathered all I need and issued the pre advice protocol letter

[charitynjw]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Maybe an email to
http://www.ceoemail.com/s.php?id=ceo...ef%20Executive
reminding him of
https://www.burges-salmon.com/news-a...ws-its-appeal/
might do the trick.

No harm in trying

[nemesis45]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Maybe an email to
http://www.ceoemail.com/s.php?id=ceo...ef%20Executive
reminding him of
https://www.burges-salmon.com/news-a...ws-its-appeal/
might do the trick.

No harm in trying

Thanks [MENTION=5553]charitynjw[/MENTION] good links.

If VF don't react positively when contacted by a well known consumer journalist it won't affect further action by yourself.

nem

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Maybe an email to
http://www.ceoemail.com/s.php?id=ceo...ef%20Executive
reminding him of
https://www.burges-salmon.com/news-a...ws-its-appeal/
might do the trick.

No harm in trying

Thank you! I'll email the CEO laying out my case. My follow up letter to the pre action one is ready to be sent out when the 28 days runs out on Wednesday. Shall I include this in my email?

The second link just takes me to a Google vs somebody case regarding advertising, am I missing something?

[nemesis45]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thank you! I'll email the CEO laying out my case. My follow up letter to the pre action one is ready to be sent out when the 28 days runs out on Wednesday. Shall I include this in my email?

The second link just takes me to a Google vs somebody case regarding advertising, am I missing something?

Hello Abbie,

The linked case is about misuse of personal data, in your case it's misuse of " personal " credit file data i.e. an unfair /unjustified
default entry.

nem

[charitynjw]

Re: Taking Court Action Against Vodafone - Remove Default Notice

The second link just takes me to a Google vs somebody case regarding advertising, am I missing something?

Google v Vidal Hall is the precedent court case concerning award for distress only due to misuse of personal data.
Previous to this it was thought that you had to prove actual material 'damage' (eg a provable loss) in addition to any claim for distress.
http://www.bailii.org/ew/cases/EWCA/Civ/2015/311.html

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hi Guys,

Sorry for the verrrrry late reply but thought I'd update you. I emailed the CEO thanks to the advice given above which triggered a correspondence from Vodafone with an admission... of sorts. I received a letter from Vodafone UK Legal Team in April confirming that they have been notified by Metropolitan Police Mobile Phone Crime that this is part of a larger criminal investigation, a number of individuals have been arrested and that the court case will happen in September. Good news, but they then go on to say that the account will be left cancelled and collectable until then. They also have still not provided me with any of the details I have requested and are still ignoring my requests.

Since then, I received lots of advice about taking this matter to a solicitor and to the media. I contacted several local solicitors but the majority who were interested in the case advised that it could be costly and that it was best to wait until September anyway.

So here I am, in September, considering my next move. Any help or advice would be much appreciated at this stage!

Thanks, Abbie!

[Amethyst]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Do you any information about the criminal case being heard at all?

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Personally, I can see why solicitors you have spoken to have suggested that you wait until the criminal hearing is over, probably because they wouldn't want any civil case prejudice the Met's criminal case. At the same time, the default is having a detrimental effect on you. I suspect that if you issued proceedings and the criminal case is not yet over they might apply for it to be stayed until the conclusion of the criminal trial, though courts do not always agree to this.

As for any claim you might have, it might be helpful to post up the letter from Vodafone so we can see what exactly they have said. I have serious doubts that Vodafone would have no involvement and the Met suddenly called them out of the blue and I would have expected them to know for some time whilst those investigations were ongoing if it was Vodafone who already initiated the investigations with the Met!

Anyway, I would question their right to retain the default on record pending the criminal investigation for a number of reasons. First of all, the burden of proof in criminal cases is beyond reasonable doubt whereas the civil cases are on a balance of probabilities - that means you only need to tip the scales 51% in your favour. So even if those people who were arrested were not convicted, that does not mean that the account was not fraudulently set up. There have been cases and in particular of recent where a criminal case has failed but a civil case has succeeded.

Secondly, the Data Protection Act 1998 requires data controllers to keep data accurate and up to date. If they have admitted in their letter that they are aware of a wider investigation regarding mobile phone fraud then that would indicate there is a real chance that you could have been affected by the fraudulent activities and in that respect, they ought to have removed the default whilst those investigations were ongoing. If they haven't, then that would assist with any claim you might have for breach of data protection and claiming aggravated damages on top of normal damages if you so wished.

I have not fully read the thread so apologies but what outcome are you actually seeking? Are you looking for them to rectify it, or seek damages for breach of the DPA or both? As I mentioned above, the court will consider in civil cases whether it is more likely than not, that the account was a fraudulent one. The fact that Vodafone were made aware by your bank of the fraudulent signature on the DD instruction could be substantial evidence to which Vodafone should have taken some action in removing the default whilst investigations were being carried out.

If it were me, I'd take the chance and send a letter before action and issue proceedings and leave it up to Vodafone to either request the case be stayed or not. It does not seem fair and reasonable for you to suffer a default on your credit file which can affected you obtaining credit and other things until the criminal trial is concluded. Even if the court agreed for the case to be stayed, I would be pressing for an interim order that the default is removed pending a full hearing.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thanks for your quick and detailed response!

Please see the picture posted below. This is the last letter I received from the UK Legal Team at Vodafone. I have also kept all other correspondences and the information I obtained through the DPA request.



As you can see, they certainly are aware of a wider investigation regarding mobile phone fraud but make a point of leaving the account as 'collectable'. The information I obtained under the DPA request also shows that the account was blocked due to fraudulent activity several times before I discovered it and that my bank, having conducted its own investigation, had deemed that the signature on the direct debit instruction was fraudulent and had informed Vodafone. The image below shows extracts from the 'Crystal Account Notes' document supplied by Vodafone under the DPA request. The image shows the official statement they gave to me regarding there being no fraud found on the account (on the left hand side, important text highlighted) and a clear contradiction between that and the earlier notes on the account, all logged within the same document.




As far as a resolution goes, at the very least I would like my credit score to be returned to perfect as it was before this fraud was uncovered. It has meant that both me and my partner have been unable to buy our first home which we initially planned to do at the start of 2016 (we are still renting). I have also heard that it affects other financial products, such as my car insurance, which I means it may have cost me more. Then there is the ongoing stress of having had this hanging over my head for the past few years, which is very real I assure you. It makes me feel physically sick and has put a strain on my relationship as my boyfriend has considered buying a house by himself on several occasions.

In terms of sending a letter before action, I have already sent a Letter of Claim dated 14/02/17, written in compliance with the Practice Direction on Pre-Action Conduct, sent by recorded delivery and signed for on 16/02/17. The basis of the claim in the letter was as follows:

Based on the evidence provided by Metropolitan Police Mobile PhoneCrime, ActionFraud and Natwest bank, and the lack of evidence provided byVodafone despite persistent requests, I assert that Vodafone have beennegligent in allowing this contract to be opened with insufficientdocumentation and have incorrectly applied a debt and default notices to myname/credit score.



I further assert that the fraud investigation carried out by Vodafone has been insufficient. On pg. 14 of the Siebel Account Notes it is stated that ‘the usage on this account is also normal, normal calls to UK landlines and mobiles, no fraudulent usage’ yet on pg. 17 and pg. 19 of the Crystal Account Notes it shows that this account was referred to the Fraud/Credit & Collections team in June and July of 2014 due to high usage in ‘more than £100 in 1 day’ in Spain and Portugal on separate occasions.



I intend to base my claim on the following documents:



Vodafone 689728830 Crystal Account Notes
Vodafone 689728830 Siebel Account Notes
Letter dated 30/10/16 Reference: 1-456427175962


They did not respond to or acknowledge the letter within the 28 days stated, so I sent a further letter stating I have been left with no choice but to pursue a court claim in accordance with the Civil Procedure Rules 1998 (this was dated 15/03/2017, sent by recorded delivery and signed for on 17/03/17). It was after this that I then received the letter above. I have also repeatedly requested that Vodafone supply myself with; 1. Copies of the ID and supporting documents (both proof of signature and proof of address) used to open this account 2. The fraud investigation carried out by Vodafone, as referenced in both the Crystal Account Notes and Siebel Account Notes provided by Vodafone, in its entirety.

Shall I start again with a new Pre Action letter? Do you think I could find someone willing to take on the case on a no win no fee basis? I am worried about being able to represent myself adequately.