LegalBeagle Wins Bank Charge Case - Lloyds Overdraft Terms deemed Unfair

[Fred]

Re: LegalBeagle Wins Bank Charge Case

How can a Default not do damage to a credit file?
-------------------------------------------------------

Is it because he or she can have it amended by application to the credit agency especially now ?

[Amethyst]

Re: LegalBeagle Wins Bank Charge Case

This bit of the judgment --

81. The Claimant seeks damages pursuant to section 13 of the
Act which provides for payment of compensation in the
following circumstances :
(1 )An individual who suffers damage by reason of any
contravention by a data controller of any of the
requirements of this Act is entitled to compensation from
the data controller for that damage.
(2)An individual who suffers distress by reason of any
contravention by a data controller of any of the
requirements of this Act is entitled to compensation from
the data controller for that distress if-
(a)the individual also suffers damage by reason of the
contravention, or
(b)the contravention relates to the processing of personal
data for the special purposes.
(3)1n proceedings brought against a person by virtue of
this section it is a defence to prove that he had taken such
care as in all the circumstances was reasonably required
to comply with the requirement concerned.

82.1 am satisfied that the Claimant is entitled to
compensation under Sub-s. (1) above but as he has not
pleaded, nor gave any evidence about, suffering distress, I
do not propose to award any damages under Sub.s. 2.

83. In order to assess those damages I propose to follow
the dicta of Tugendhat J. in Vidaii-Hall & Ors. -v- Google
lnc.(2014) EWHC 13 by whom consideration was given to
a claim under 8.13 of the Act and when he expressed the
preliminary view that damage under s.13 does include
non-pecuniary loss.

84. In the present case there is some suggestion that the
Claimant was prevented from obtaining a mortgage by
reason of the filing of the default against him but I saw no
documentary evidence to support that claim and I do not
propose to allow it. Thus I make no award for pecuniary
loss but I will award non-pecuniary damages but not at the
level awarded in Durkin -v- DSG Retail Ltd. (2014)
UKSC 21, where the Pursuer was awarded Ł8000.00 for
damages to his credit rating. I have concluded that the
Defendant was not entitled to file a default and I am
satisfied that the Claimant has been put to a good deal of
trouble in his endeavours to resolve this matter in his
favour, as is evident from his correspondence with both
the Defendant and the Information Commissioner, as well
as being obliged to bring these proceedings, but as I have
seen no evidence of damage to his credit rating, I
consider that an award of Ł1000.00 is appropriate.



There was a bit of weirdness at the beginning of the claim where the claim hasn't actually pleaded anything on the default issue in his original claim so I don't know how much that affected the case later on - the main concentration was on the bank charges aspect - the ICO had already said they thought the default unfair so the court were backing that up really.

[Guest]

Re: LegalBeagle Wins Bank Charge Case

Yes as said repeatedly, damages must be shown to be real at least, even if not provable in quantum. The none pecuniary loss award is interesting though, does anyone have a link to the google case.

[Guest]

Re: LegalBeagle Wins Bank Charge Case

The really interesting part in my vies, is the decision regarding the term to vary without consent, and the ability to challenge this under section 5. If unchallenged this should open a whole new can of worms IMO

[Amethyst]

Re: LegalBeagle Wins Bank Charge Case

attached ( and summary http://www.5rb.com/case/vidal-hall-ors-v-google-inc/ )

The second is that the judge indicated in a preliminary view that damages for a breach of the DPA could include non pecuniary damage. The impact of the DPA in privacy law has to date been limited by the requirement that damage for distress could only be recovered if pecuniary damage had been suffered. This development has the potential to make claims under the DPA far more common in the field of privacy law.

[PAWS]

Re: LegalBeagle Wins Bank Charge Case

Zipadeedodaaaa! :dance:Well done all concerned. OK, there may be appeals but when you rake through the issues raised this is a bit of a dam buster. Delighted for orfoster. Time for a large one and a good night’s sleep!

[Guest]

Re: LegalBeagle Wins Bank Charge Case

attached ( and summary http://www.5rb.com/case/vidal-hall-ors-v-google-inc/ )

The second is that the judge indicated in a preliminary view that damages for a breach of the DPA could include non pecuniary damage. The impact of the DPA in privacy law has to date been limited by the requirement that damage for distress could only be recovered if pecuniary damage had been suffered. This development has the potential to make claims under the DPA far more common in the field of privacy law.

Ta

[righty]

Re: LegalBeagle Wins Bank Charge Case

Great News however, its a great shame that we have had to rely on a an ordinary consumer to bring this argument to the courts because as I seem to recall the Supreme Court ( I think it was Lord Nuremberger) stated when finding for the banks that the OFT could still bring a case based on the Unfair Contracts Act but declined to do so claiming 'lack of funds'

[righty]

Re: LegalBeagle Wins Bank Charge Case

This could also, dependent on the appeals outcome, permit previously suspended claimants from bringing new claims and of course customers still being penalized by the banks will also be able to sue

[Fred]

Re: LegalBeagle Wins Bank Charge Case

Great News however, its a great shame that we have had to rely on a an ordinary consumer to bring this argument to the courts because as I seem to recall the Supreme Court ( I think it was Lord Nuremberger) stated when finding for the banks that the OFT could still bring a case based on the Unfair Contracts Act but declined to do so claiming 'lack of funds'

Not just this either................the OFT priorities will be hopefully brought out in our cases of "total unregulated" it is a terrible shame that the objectives of a single consumer in the quest for some form of ruling has to go to these lengths in what I see as pretty much straight forward Quote one line from OFT:

"The OFT argued that maintaining the public confidence in the OFTs system of regulatory enforcement is overwhelmingly in the public interest & that the interests of a single group of consumers aggrieved about a discrete & narrow issue should not be placed above the wider interests of consumers as a whole"

The above statement given on matters they would not disclose (yet) that is

The material put to them resulted in a reprimand against the provider........................the arguments remain as above UTCCR 5.1 not even considered, fair-well OFT may you rest nervously in the CMA & learn from "Joe public"..................not over at all

[Guest]

Re: LegalBeagle Wins Bank Charge Case

attached ( and summary http://www.5rb.com/case/vidal-hall-ors-v-google-inc/ )

The second is that the judge indicated in a preliminary view that damages for a breach of the DPA could include non pecuniary damage. The impact of the DPA in privacy law has to date been limited by the requirement that damage for distress could only be recovered if pecuniary damage had been suffered. This development has the potential to make claims under the DPA far more common in the field of privacy law.

Bit of a mystery because subsequently there wsa this from the upper tribunal which held a different view apparently

The issue of the meaning of “damage” under the DPA was considered by Tugendhat J recently in Vidal-Hall v Google Inc [2014] EWHC 13 (QB). Tugendhat J did not decide the question, but offered his preliminary view to the effect that damage in section 13 of the DPA did include non-pecuniary damage.
Given Tugendhat J’s view, Wikeley J was invited to adopt a similarly broad approach but declined to do so. He held that the legislation in issue here referred disjunctively to “substantial damage or substantial distress”. The guidance given by the Commissioner in accordance with section 55C of the DPA correctly differentiated between “damage” and “distress”. If “damage” had been meant to encompass emotional turmoil, then there would have been no need to refer separately to “distress” in the legislation. Tugendhat J had decided nothing beyond that there was a serious issue to be tried in the Vidal-Hall litigation; his observations on section 13 of the DPA were therefore necessarily tentative. In any event, whether or not Tugendhat J’s approach was a proper reading under section 13 of the DPA (in which the terms were deployed separately in subsections (1) and (2) respectively, which may not rule out some degree of overlap), in Wikeley J’s judgment, it could not apply to section 55A(1)(b), where the expression of “substantial damage or substantial distress” was plainly disjunctive.

[PAWS]

Re: LegalBeagle Wins Bank Charge Case

claimant was also awarded damages for an incorrect default registered on his credit file. Although the judge held that no damage had been done to the file by the ‘default’, the fact that Lloyds had agreed to the claimant repaying the overdraft by way of a debt management plan it meant that no default had in fact occurred.

Now be gentle with me as I have no legal knowledge but……does this mean that If you have a debt management plan agreed directly with your creditor then you have not defaulted or no default should be registered against you?

[Guest]

Re: LegalBeagle Wins Bank Charge Case

Now be gentle with me as I have no legal knowledge but……does this mean that If you have a debt management plan agreed directly with your creditor then you have not defaulted or no default should be registered against you?

The judgment seems to take into account the guidelines of the ICO which to my mind is a good thing, as perhaps other courts will do likewise.

To answer your question. The guidelines state that a "default" occurs when the relationship between the creditor and the debtor has completely broken down, if a payment arrangement has been put in place,, albeit by a DMP a relationship is still in place therefore no default has occurred and therefore none should be recorded. This does not include an account which was defaulted before an account DMP was set up of course.

[leclerc]

Re: LegalBeagle Wins Bank Charge Case

I just want to say(in a very cautious manner) congrats to the team and perhaps the door is slightly ajar and maybe this time it might stick albeit I suspect that if it does, it may well not apply to every single case of bank charges but specific cases(from my very very very brief reading of this).

[EXC]

Re: LegalBeagle Wins Bank Charge Case

The judgment seems to take into account the guidelines of the ICO which to my mind is a good thing, as perhaps other courts will do likewise.

To answer your question. The guidelines state that a "default" occurs when the relationship between the creditor and the debtor has completely broken down, if a payment arrangement has been put in place,, albeit by a DMP a relationship is still in place therefore no default has occurred and therefore none should be recorded. This does not include an account which was defaulted before an account DMP was set up of course.

Yes it would depend on the continuity of the relationship.

On another point and although I didn't attend the hearing, I understand that counsel for Lloyds cross examined the claimant quite vigorously and seemingly in an effort to portray him as being reckless with his spending and perhaps somehow deserving of the charges he incurred. It was only after Tom re-examined him that it was established that far from being reckless, most of the charges were caused by the previous charge. In other words the overdraft was largely the result of Lloyds being reckless with their charging and this was reflected in the judgment albeit in a more tempered language:

59. It does seem, however, that from about May 2008 the
majority of the entries were debits directly relating to the
increasingly overdrawn balance on the account, which, as Mr.
Brennan has put it, resulted in a cycle of debt.