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

[EXC]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I have a wrongful default from Barclays on my file at the minute ... put on well after six years from default and after they agreed it was stat barred and now it will be on there for another 4 years

Playing devil's advocate Barclays could argue that you benefited during the 6 years when the default should have been on there and wasn't. I'm not saying they should of course but a court might take that into account if asked to access damages.

On the issue of wrongful defaults = defamation, I think it would all depend on the extent to which a default was wrong as there's a distinction to be drawn between something being entirely untrue and merely inaccurate.

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

13Compensation for failure to comply with certain requirements.

(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.

http://www.legislation.gov.uk/ukpga/.../section/13(3)

In 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.

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I reluctantly agree with general damages because once you start to consider the defamation argument then the court will look at the victim's reputation. If it's a one-off default that would be very different from those of us who have multiple defaults. It would be hard to assess exactly which one of those defaults caused me to not get a mortgage (or any other line of credit) especially when mortgage underwriting takes into account a whole range of factors including having too much good credit with the potential to overstretch (in the lender's eyes).

Unfortunately the act and common law requires quantifiable damage unless intentional malpractice can be proven, at least up until now.

[Lord_Alcohol]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I must say if I were to get £8k in "general damages" for every wrong default on my credit file I probably wouldn't need another mortgage

Lol

But to use the newpaper analogy again, it's like being defamed by the Daily Mirror and then the Sun, but a court saying that no damages can be awarded against the Sun because you had already been defamed by the Mirror !!

I would say that multiple defaults multiply the defamation, and that each default is irrespective of any predecessor.

Just my opinion of course :tinysmile_twink_t2:

[PlanB]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

An "assistance" to general damages is the duty of care that data controllers are required to exercise under the DPA. This was a big chunk of the proceedings yesterday. The defence, at s.13(3) DPA, is that a data controller has to demonstrate that care was taken. However, it can often be shown that no care of any description was taken, and where this is the case presumably a court might consider a claim for "general damages"?.

I must say if I were to get £8k in "general damages" for every wrong default on my credit file I probably wouldn't need another mortgage

[Lord_Alcohol]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

An "assistance" to general damages is the duty of care that data controllers are required to exercise under the DPA. This was a big chunk of the proceedings yesterday. The defence, at s.13(3) DPA, is that a data controller has to demonstrate that care was taken. However, it can often be shown that no care of any description was taken, and where this is the case presumably a court might consider a claim for "general damages"?

The "Loss of chance" argument from Tools is interesting...

[PlanB]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

a "wrongful default" IMHO is defamatory - it is asserting to all other creditors that you have defaulted on a credit agreement.

I reluctantly agree with general damages because once you start to consider the defamation argument then the court will look at the victim's reputation. If it's a one-off default that would be very different from those of us who have multiple defaults. It would be hard to assess exactly which one of those defaults caused me to not get a mortgage (or any other line of credit) especially when mortgage underwriting takes into account a whole range of factors including having too much good credit with the potential to overstretch (in the lender's eyes).

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

So what the dickens happened in Smeaton v Equifax ? Was it argued on the wrong points?

I think the court decided that there was no answerable breach of either the DPA or a duty of care, also that there were other issues which would have effected the plaintiffs ability to gain credit so no provable loss.
In addition the court decided that the previsions of the act were sufficient to deal with cases like this and the application of common law tort was not necessary.

[Tools]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

Here I go hope you understand what am on about, lol

Yesterday it was said about having lost the chance of a house in Spain and how the cost of the property had doubled while all this has gone on.
How would it work had it been the other way round and the property value had halved?

Before reading your post I was actually reading, funnily enough Loss of chance,

Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of negligence deprived the claimant of the opportunity to obtain a benefit and/or avoid a loss. For these purposes, the remedy of damages is normally intended to compensate for the claimant's loss of expectation (alternative rationales include restitution and reliance). The general rule is that while a loss of chance is compensable when the chance was something promised on a contract

Chaplin v Hicks

This however would depend on whether or not a contract actually existed between the parties, if for example in the Equifax case no contract existed between the two how could a breach or non performance argument be relied on? The causation is the same, Lack of chance, so what remedy could or should have been applied?

[Sparkie1723]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

LOrd BirkenHead in Wilson v First Counties Trust ( I'm pretty certain thats the case) lays out exactly what damage is caused by incorrect information on someones credit file and put figure on such damage as £5000.
The 4th Principal of Data Protection Act says that by recording anything that is incorrect in any matter of fact breaches this principle.
It is fact that besides claiming damage under this principle if percuniary loss is suffered you can also claim damges for distress and the 4th Principal is the only Principal you can claim for distress.

Sparkie

[ncf355]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

If you discover a wrongful default, go through complaints and they remove the default at that point, what level of damages should the lender be expected to pay at that point ? Then rise if they force it to go to a complaint to fos or I c o ?

This would seem a fair approach, but if they hand down keeping the ruling as it stood in court it clearly paints with a VERY broad brush meaning irrespective of the wrong brought upon you, its 8k

Like I say, this is assuming they dont alter that figure for the passage of time - bearing in mind the original hearing award for Richard was calculated using King v British Linen brought up to date via CPI - if this is done for the SC judgment (assuming success of course) then its likely the final amount would be more like £12 - £13k! (that figure is a bit of a "pluck from the air" but has been discussed elsewhere on the forum when I was considering action on the same grounds).

One of mine is where a bank placed a default and then insisted on keeping it in place after they had paid out PPI that resulted in the balance being reduced to £0.00 and paying me the excess of some £1.6k via cheque - to my mine that is an aggravated example and one where they should certainly have to pay a substantial sum as they were obviously taking an attitude of "we say it's right, so it is!"

I had engaged in protracted communication with them on the issue but they just would not budge.

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

You shouldn't need anything for a claim for general damages other than the wrongful default itself.

Perhaps you shouldn't , but I think that in practice you do, at the moment anyway.

[Amethyst]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

So what the dickens happened in Smeaton v Equifax ? Was it argued on the wrong points?

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

Here is the one mentioned

Smeaton v Equifax Plc [2013] EWCA Civ 108 (20 February 2013)

[Rico]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I could then also claim them for the period where my file would other wise have been clear.... by saying I had intended to obtain a mortgage etc??

You shouldn't need anything for a claim for general damages other than the wrongful default itself.