WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

So, is the current thinking that, as the UKSC allowed the uncontested Scottish award for injury to credit, this is binding on all UK lower courts where it is shown that the lender breached its duty of care?

TIA

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Agree Amethyst

In my case the debt never existed but the credit card company sold an account that was clear although they said there was a debt.
I managed to prove that my credit card bill was paid up and no debt residue was leftover when the account was closed. The problem was payments had not been credited to my account.
Now a DCA has been reporting incorrect data for the last two years.
When the debt was disputed by me then the data reported should reflect that but they still applied a default marker month after month.
Even after, at considerable expense to my self, I did their job for them and proved I was correct and no debt existed defaults are still being reported to the CRA's.

It makes me mad that companies ride roughshod over people and keep getting away with it.
They need to know the damage a default can cause people and if they are wrong then they should pay for it.

In my opinion , if you do not show at least some indication of an actual loss you will not get any award from the court. Merely showing that an default was incorrectly placed will not automatically result in a damages award.

There is no precedent for an award being made for a damage to reputation either under the act or in common law tort on this COA.

For this you would have to pursue an action for liable or some other related tort.

[Bankers Reform]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I tend to agree with you on this Andy, but showing actual loss is not difficult in my case and shall do so if and when I have to raise a court claim.
My understanding having read through the Supreme Court ruling is such that the £8k was uncontested by HFC at an earlier hearing providing that Mr Durkin could prove a failure in their duty of care to him, but I also note that Mr Durkin was also showing loss on the Spanish property deal.

When the award of £116k was successfully appealed why then was the £8k also not removed?

From that my reading is that even though Mr Durkin failed to prove financial loss he was still entitled to £8k for damage/injury to credit.

[Bankers Reform]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

So, is the current thinking that, as the UKSC allowed the uncontested Scottish award for injury to credit, this is binding on all UK lower courts where it is shown that the lender breached its duty of care?

TIA

In my humble opinion, yes.

See my previous post #618 for my thoughts.

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

This one obviously wont be settled until some brave soul takes action, and even then of course it's likely to be SCT wont be binding until action takes place in the COA or above, relying on Durkin

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

When the award of £116k was successfully appealed why then was the £8k also not removed?

That is a very good question...

Here's another - is "injury to credit" pecuniary or non-pecuniary? If the latter, then it must be "distress" and, if so, DPA says that there cannot be an award for distress without an award for actual losses (I think). If that's the case, then surely the UKSC have cocked up in making an award under s.13(2) without making one under s.13(1)?

(This is doing my head in)

[Bankers Reform]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

That is a very good question...

Here's another - is "injury to credit" pecuniary or non-pecuniary? If the latter, then it must be "distress" and, if so, DPA says that there cannot be an award for distress without an award for actual losses (I think). If that's the case, then surely the UKSC have cocked up in making an award under s.13(2) without making one under s.13(1)?

(This is doing my head in)

Maybe Rico can enlighten us as to how this award of £8k came about.
Which hearing and what arguments were put forward, because whatever that was, the Supreme Court upheld it and is therefore binding in the UK.

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

For a reminder, the text from the original judgment that related to the 'injury to credit':

(MY bolding, and it would appear the numbering from the original has gone to cack, but hey ho -)

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

General loss to credit

1. Counsel for the pursuer submitted that in addition to the actual losses which he had sustained the pursuer had suffered a general loss to credit along the lines recognised in King v British Linen & Co (1899) 1F 928 and Wilson v United Counties Bank Limited. [1920] AC 102. He submitted that this general loss to credit sounded in damages over and above any actual damages which the pursuer may, as he had done here, sustained. Counsel for the second defender submitted that any award for damages to credit was circumscribed or limited by the actual damages sustained.

1. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

1. Wilson v United Counties Bank Limited was a case brought by an individual (Wilson) and his trustee in bankruptcy against Wilson's bank. The defenders' negligent handling of the plaintiff's estate whilst he was away on military service caused an actual loss to the estate, and also resulted in the pursuer, Wilson being made bankrupt. The trustee in bankruptcy was held entitled to recover actual losses caused by the negligent management. There was only one claim in respect of damage to credit, namely the fact that Wilson was made bankrupt when, had the defenders managed his affairs prudently, he would not have been. There was no claim that Wilson had suffered any specific loss to his credit by virtue of the bankruptcy, but the fact of bankruptcy was recognised as a serious injury to his general credit standing. This resulted in an award in 1919 of £7,500. The case, as was also the case with King v British Linen, was based on breach of contract and not negligence. The Lord Chancellor, Lord Birkenhead, said of the type of case where a banker, though his customer's account is in funds, nevertheless dishonours the customer's cheque, that the refusal to meet the cheque is so obviously injurious to the credit of a trader that the latter can recover without allegation of special damage reasonable compensation for the injury done to his credit. He applied that principle to the circumstances of Wilson's case where a defendant had expressly contracted to sustain the financial credit of a trading customer and breached that obligation. At page 120, Viscount Findlay said that the fact of bankruptcy must injure the credit of the person made bankrupt, apart from damage to the estate. He continued "In an action for negligence against a solicitor leading to the bankruptcy of his client even if due to fortuitous circumstances the estate had not been damaged, it seems on principle that the jury might give substantial damages for injury to the credit of the person made bankrupt." Later on he said "It was urged that proof must be given of special damage in order to sustain the verdict on this head for more than nominal damages. I cannot see on what principal this contention rests. The mere fact of bankruptcy imports damage to the credit of the bankrupt. It is a natural consequence, and it is for the jury to assess the damages for such a slur."

1. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

1. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

1. Evans LJ went on to consider the issue of special damages separately. There is, however, nothing in the judgment of Evans LJ to indicate that had the special damages claim been made out he would not have made an award in terms of the general damage claim. Lord Justice Waite and Sir John May each agreed in all respects with the judgment of Lord Justice Evans

1. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

1. In these circumstances and standing such a recent decision where the claims appear to have been treated as being capable of existing together, I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

[Bankers Reform]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Thanks NCF, that saves me going around looking and compiling all the relevant info.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

All these references are non-DPA (I think) - is DPA proving to be a red herring in this case? In other words, can "injury to credit" be pleaded under some other legislation, so a claimant doesn't have to worry about s.13?

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Just Tort, surely?

Though I would imagine DPA S13 would be a helpful crutch?

[ncf355]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

The tort being negligent misrepresentation

[Guest]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I tend to agree with you on this Andy, but showing actual loss is not difficult in my case and shall do so if and when I have to raise a court claim.
My understanding having read through the Supreme Court ruling is such that the £8k was uncontested by HFC at an earlier hearing providing that Mr Durkin could prove a failure in their duty of care to him, but I also note that Mr Durkin was also showing loss on the Spanish property deal.

When the award of £116k was successfully appealed why then was the £8k also not removed?

From that my reading is that even though Mr Durkin failed to prove financial loss he was still entitled to £8k for damage/injury to credit.

The 8k wasn't removed because the earlier decision was not interfered with one way or the other, it may have been better if it had been or at least altered. As it stands the supreme court made no finding in the matter which would act as any kind of precedent in English law.

Even in Scottish law, the judgment would struggle to set any precedent, as I read it it was an uncontested claim and not argued, any further claims would very much turn on their own evidence.

There is recent case law which basically says that that whilst a simultaneous action for the tort of failure to provide due care could be brought under a section 13 breach, the court would not usually entertain it because all the needed recourse is available under the act.

In any case proof of actual or at least "real" damages is required although not necessarily quantified.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I think DPA covers everything, since 1998. So compensation claims would have to come under s.13, AFAIK (could well be wrong).

The issue is untangling s.13(1) from (2).

I was thinking that if "injury to credit" really came under s.13(2), being "distress" (see Halliday), then the UKSC may have erred because an award under s.13(2) cannot be made unless one is made also under s.13(1) (the £116K).

But as the UKSC must be right, then "injury to credit" must come under s.13(1), which is compensation for damage (until now I thought that this meant compensation for actual losses). So the reasoning is that, following the UKSC ruling, s.13(1) isn't just about compensation for actual losses - it must also cover non-pecuniary losses, such as "injury to credit".

But I'm still not sure...

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

The 8k wasn't removed because the earlier decision was not interfered with one way or the other, it may have been better if it had been or at least altered. As it stands the supreme court made no finding in the matter which would act as any kind of precedent in English law.

Even in Scottish law, the judgment would struggle to set any precedent, as I read it it was an uncontested claim and not argued, any further claims would very much turn on their own evidence.

There is recent case law which basically says that that whilst a simultaneous action for the tort of failure to provide due care could be brought under a section 13 breach, the court would not usually entertain it because all the needed recourse is available under the act.

In any case proof of actual or at least "real" damages is required although not necessarily quantified.

Have to say I think this is right - although would still be good to get Rico's take on where "injury to credit" fits within DPA.