Taking Court Action Against Vodafone - Remove Default Notice

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

I think the OP should shop around for a law firm which does Fixed Fee work which doesn't necessarily include a 25% (or any %) cut of the damages won or a success fee if instructed on a CFA (No Win No Fee).

I can't speculate on this particular situation without knowing all the facts but there is always the potential for a solicitor to fight for legal costs even in the Small Claims Court. Or negotiate payment of legal costs as part of any pre-trial settlement. This can be the case when the other party wishes to avoid media attention which could open the floodgates to other cases against them.

I would also suggest the OP should check any insurance cover they have (home or car etc) to see whether that policy includes Legal Expenses cover.

Di

You are quite right the OP should look at other options such as fixed fee and potential legal expenses insurance which was something I missed off.

I would think the best time to issue legal proceedings (if appropriate) would be once the outcome of the trial is known and not before. What if the Defendants are found Not Guilty?

I think this is where we have to disagree, it is irrelevant about whether or not the Defendant's are found not guilty in a criminal setting, that does not prevent or prejudice any claim in a civil case, particularly as the civil standard of proof is much lower. Sure, a conviction would assist the OP to show on balance that it was a fraudulent account but even if there is a not guilty verdict, there seems to be quite a bit of evidence so far such as the bank confirming a fraudulent signature and difficulties in getting past the verification process to suggest fraudulent activities.

The real question is whether it was accurate to record and/or continue reporting a default against the OP when Vodafone had become aware or had suspicions, that the account was or may have been opened fraudulently. If the answer is no, there is a breach of the DPA and damages therefore follow. The fact that Vodafone are unwilling to remove the default at least until the conclusion of the criminal trial further aggravates matters.

I also think the time to make a claim for damages would be once you can quantify your loss which can only realistically be done when you have an 'end date' for the damage being caused (i.e. when the default is removed).

I also have to disagree with this, quantification and removal of the default should be done at the same time in the same claim. Most breaches of the DPA for inaccurate data are likely to be an unspecified claim since it is often difficult to quantify the loss or damage caused, so there is no harm in asking for the court to determine those damages based on the loss or damage or loss of opportunity etc. leading up to the hearing as inevitably, if the OP was successful, the 'end date' would be the date of the hearing following judgment.

Of course it is up to the OP to decide, but the longer she waits the more potential loss it could cause her and therefore it makes sense to mitigate those losses by issuing a claim sooner rather than later.

Patience is not always the best option to take.

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Hello, thanks for your reply Diana.

I did send out an initial letter to a few media outlets but then told the ones that replied that I have decided to wait for the court case to conclude as I do not want to jeopardise it in any way.

I have no information regarding the case other than provided by Vodafone in the letter above. I was unaware of there even being one until that letter was sent.

I have added a dispute to my credit file but this was rejected by Vodafone who said that the debt was just.

I appreciate your comments on the outcome of the trial, but for me this should hold no relevance to my case. The fact is that this account is fraudulent and I believe that Vodafone have been negligent in allowing the account to be opened in the first place and for not acting appropriately once the fraud was detected. I feel that the evidence in the account notes, the lack of supporting documents/ID used to open the account, the police investigation and the banks investigation are evidence enough to show that this account is fraudulent. I am unconvinced of the need to associate the criminal case with my particular account?

I think at this stage I should be quantifying my damages and pressing on with a civil case regardless of the outcome of the criminal case, having been patient with Vodafone for the past few years. Unless there is something I am missing? Will a court be willing to hear a civil case regardless of the status of the criminal case, which may or may not directly relate to my account and I feel should have no bearing anyway?

Any help appreciated, thanks again for your reply!

[Diana M]

Re: Taking Court Action Against Vodafone - Remove Default Notice

You might find it difficult to obtain this on a no-win no-fee basis as there seems to be a lot of work involved and any sum of money they will likely take a 25% cut and for the potential damages might not be worth it for them. So the reality is that if you want to bring a claim, then you might have to do it yourself.

I think the OP should shop around for a law firm which does Fixed Fee work which doesn't necessarily include a 25% (or any %) cut of the damages won or a success fee if instructed on a CFA (No Win No Fee).

I can't speculate on this particular situation without knowing all the facts but there is always the potential for a solicitor to fight for legal costs even in the Small Claims Court. Or negotiate payment of legal costs as part of any pre-trial settlement. This can be the case when the other party wishes to avoid media attention which could open the floodgates to other cases against them.

I would also suggest the OP should check any insurance cover they have (home or car etc) to see whether that policy includes Legal Expenses cover.

Di

[Diana M]

Re: Taking Court Action Against Vodafone - Remove Default Notice

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.

Since then, I received lots of advice about taking this matter to a solicitor and to the media.

Contempt of Court law may prevent any media coverage now that arrests have been made and individuals charged (unless reporting restrictions are lifted).

The general idea of Civil Contempt is to prevent the reporting of material which might prejudice a fair trial by influencing the jury to think the Defendant(s) might be guilty. (I used to be a court reporter for a National Newspaper.)

So you'll have to wait for the conclusion of the Trial or for reporting restrictions to be lifted before a journalist will be free to report the story. Anything done before then could scupper a very expensive criminal investigation if the case collapses due to media coverage.

If you've given a statement to the police (you say you have a crime reference number) do you know if that will that be included in the Trial as evidence?

On a practical level you may wish to consider adding a Notice of Correction to your CRA file as a holding position perhaps with a statement from Vodafone if they're willing. However since they may be heavily involved in the criminal case they may be advise by their legal team to keep a distance at this moment in time.

This forum has an Authorised Representative from Vodafone so maybe send him a PM and ask for his intervention and/or help?

I would think the best time to issue legal proceedings (if appropriate) would be once the outcome of the trial is known and not before. What if the Defendants are found Not Guilty?

You would also need to associate the criminal case with your particular account if you want to use the case to support your evidence. The Defendants may be found guilty of the specimen cases put forward by the CPS but that doesn't necessarily mean a fraud was committed against you and your account unless there's proof/evidence.

I also think the time to make a claim for damages would be once you can quantify your loss which can only realistically be done when you have an 'end date' for the damage being caused (i.e. when the default is removed).

I'm afraid annoyingly this is a situation where I think patience is a virtue.

(Sorry if some of these issues have already been covered on your thread which I've not read in full.)

Di

[AbbieA]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Thanks again for your response.

In answer to your questions:

1. No, I have never held a Vodafone account.

2. No. I have asked numerous times (all recorded) for any and all information relating to the setting up of this account and copies of the ID and supporting documents (both proof of signature and proof of address) used to open this account. They have repeatedly ignored this request. I had hoped that this information would be included in the DPA requested documents but it wasn't.

3. I believe that the address used was different from mine. I never received any correspondence to my actual address until after the fraud was discovered. It was a nightmare even getting Vodafone to discuss the account with me as I could not pass the DPA questions.

4. I have kept all correspondence from all parties, including the bank and the police. I have a crime reference number from the police and a brief explanation from the bank saying that they have investigated the DDI and found that the signature on it is fraudulent. As a result they recovered all monies paid (not sure if I mentioned it previously but the fraud was discovered when I noticed that money had been leaving my account each month, wish I'd noticed sooner!).

5. I have no connection with Portugal whatsoever.

From what the police said at the time of the investigation they seemed to think that my bank details had been compromised. I have my suspicions because there was a 'company' when I was at uni offering a small fee for 'market research'. The guy seemed professional and many people filled in his questionnaire, he asked for a sort code and account number to send the payment. It was maybe 2 months after this that the account was set up. I feel very naive for having fallen for this and for not noticing the money coming out for so long, and believe me I have taken a lot of stick for it! Its one of the reasons that I feel so bad about it!

Thanks again for all your help. I will draft a final demand letter this evening and post it on here (redacted, obviously). I am happy to pay the fees to have this heard in court as I feel the evidence is pretty damning. I just want to ensure that it is done properly.

[R0b]

Re: Taking Court Action Against Vodafone - Remove Default Notice

Given that your last letter before action was sent some months ago, it would be prudent to send a final one, but this time you need to follow through with it if they fail to respond. If you haven't already then I would suggest you address it to Vodafone's legal department at their registered office.

I have a few more questions to ask:

1. Do you own a Vodafone account at the time this was taken out and was this phone added to that account? The reason I ask is because you would normally most companies have a verification system where you need to give certain information and have to give some kind of password before the account can be accessed. If the fraudster set up a new account then the notes referring to phone calls about euro traveller and roaming are irrelevant since the fraudster would be able to access the account at any time.

2. Do you know how the account was set up, was it done in one of their retail shops and have you asked for a copy of the contract that would have supposedly been signed?

3. Your notes are suggesting that you never received any correspondence from Vodafone, do you know what address was set up for the account, had it been changed anytime or soon after the contract was set up. Is there an email address on the account and whether this email address is one you use if paperless bills are activated?

4. It does seem strikingly odd that Vodafone are adamant that no fraud has occurred especially if the bank have concluded that the signature is fraudulent, do you have any correspondence from the bank which confirms this?

5. Were you in Portugal on the day in question where the account spend was over £100 in one day, were any of your friends or family in Portugal at that time?

If you do issue a claim against them, the standard going damages are around £750 but because this has been ongoing it is possible if found in your favour you could be awarded a much higher sum since the length of time this has been going on for. I would not be surprised if you could claim a few thousand as a result of this but at the same time if that is something you are claiming you will also need to pay the appropriate court fees. Unless you know how much you are seeking in damages, the claim would be unspecified and you would suggest damages within a bracket for the court to decide the final amount. For example, if you were to claim an amount between £1,500 and £3,000 then the court fees is made up of £115 to issue the claim and then when a trial date is fixed you would pay a further £105. Obviously the lesser damages you seek the less amount you pay for.

You might find it difficult to obtain this on a no-win no-fee basis as there seems to be a lot of work involved and any sum of money they will likely take a 25% cut and for the potential damages might not be worth it for them. So the reality is that if you want to bring a claim, then you might have to do it yourself.

I am sure some of us on here can steer you in the right direction and how to approach a court hearing on the day, it is relatively inform so as long as you have your evidence set out clearly and concisely that is most important. You seem to have plenty of evidence to suggest a fraud has occurred and it will be up to Vodafone to prove otherwise.

[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.

[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.

[Amethyst]

Re: Taking Court Action Against Vodafone - Remove Default Notice

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

[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!

[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

[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

[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

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

[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