General damages for damage to creditworthiness.

[gravytrain]

Re: General damages for damage to creditworthiness.

I have read Noddys long thhread, and i do sympathies with his loss.

I do have a problem understanding his claim however, it seems to me that he did not encounter any real financial loss. I know it has been said that General damages does not need to be actual loss. But to be honest I cannot see this demonstrated in any of the case law, true the quantum of loss cannot be calculated in Kpohrora but nevee the less the losses are real (loss to future trade due to perceived credit problems), as they are in Durkin where the plaintiff suffered 7 years of financial hardship through the action of the bank.

In noddy s case however the Tort was remedied immediately on discovery, he was able to get his mortgage, the problems with the DCA's whilst unpleasant couldn't be said to have cause any real financial loss, could they ?

[PlanB]

Re: General damages for damage to creditworthiness.

In noddy s case however the Tort was remedied immediately on discovery, he was able to get his mortgage, the problems with the DCA's whilst unpleasant couldn't be said to have cause any real financial loss, could they ?

The FOS typically pay a maximum of £300 compensation for this kind of "stress and inconvenience" and never more than £1k. Here's how they assess what's due in a rather scientific way:

http://www.financial-ombudsman.org.u...onvenience.htm

[gravytrain]

Re: General damages for damage to creditworthiness.

The FOS typically pay a maximum of £300 compensation for this kind of "stress and inconvenience" and never more than £1k. Here's how they assess what's due in a rather scientific way:

http://www.financial-ombudsman.org.u...onvenience.htm

I suppose this could be an option in a separate claim, perhaps supported by a section 140 action ?
As far as the court claim goes and damages due to an actin in tort goes, from what I see even general damages require proof of actual loss.

[dad]

Re: General damages for damage to creditworthiness.

@PT,

Is there a copy of the Major v Lloyds judgment available anywhere?

Dad

[mystery1]

Re: General damages for damage to creditworthiness.

http://www.legalbeagles.info/forums/...051#post305051

A vip post.

M1

[gravytrain]

Re: General damages for damage to creditworthiness.

Hi PT, But the case law he quoted shows that he suffered £8K. Only asking for £5K should seem reasonable shouldn't it? The case law he quoted also says that he doesn't need to show any specific loss whatsoever, so exactly what is there to assess? General damages is compensation for the defamation aspect isn't it? HSBC admitted that. Cheers, Rico

Did HSBC say it was recompense for defamation RIco?. My understanding of general damages, is that it is still damages payable due to a tort, whether it be statute or common law.

General damages can still be estimated, it is just that they cannot be specifically quantified, but they still have to be proven to exist.

[Rico]

Re: General damages for damage to creditworthiness.

I have read Noddys long thhread, and i do sympathies with his loss.

I do have a problem understanding his claim however, it seems to me that he did not encounter any real financial loss. I know it has been said that General damages does not need to be actual loss. But to be honest I cannot see this demonstrated in any of the case law, true the quantum of loss cannot be calculated in Kpohrora but nevee the less the losses are real (loss to future trade due to perceived credit problems), as they are in Durkin where the plaintiff suffered 7 years of financial hardship through the action of the bank.

In noddy s case however the Tort was remedied immediately on discovery, he was able to get his mortgage, the problems with the DCA's whilst unpleasant couldn't be said to have cause any real financial loss, could they ?

Some important misunderstandings here that perhaps even some of the judiciary not involved in the case law have fallen foul to.

Durkin's case is very helpful in summarising the relevant cases.

115. 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.

116. 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'scase 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."

117. 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 WoolwichBuilding 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.
118. 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."

Durkin continues to suffer to this day and even with a favourable result in the Supreme Court will never be in the position that he would otherwise have been in.

The above case law is clear to me. Anyone else care to back it up and comment on why the judge has chosen to ignore it?

Cheers,

Rico.

[Rico]

Re: General damages for damage to creditworthiness.

Did HSBC say it was recompense for defamation RIco?. My understanding of general damages, is that it is still damages payable due to a tort, whether it be statute or common law.

General damages can still be estimated, it is just that they cannot be specifically quantified, but they still have to be proven to exist.

HSBC admitted that Noddy's credit rating had been damaged (didn't specify defamation but that is exactly what it is - a slur)

[gravytrain]

Re: General damages for damage to creditworthiness.

Yes I agree it is but this si not an action for defamation, the tort is either breach of the DPa or breach of duty under common law. If you are pursuing an action for defamation , slander or liable it would be a completely different COA.

[gravytrain]

Re: General damages for damage to creditworthiness.

Some important misunderstandings here that perhaps even some of the judiciary not involved in the case law have fallen foul to.

Durkin's case is very helpful in summarising the relevant cases.

115. 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.

116. 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'scase 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."

117. 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 WoolwichBuilding 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.
118. 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."

Durkin continues to suffer to this day and even with a favourable result in the Supreme Court will never be in the position that he would otherwise have been in.

The above case law is clear to me. Anyone else care to back it up and comment on why the judge has chosen to ignore it?

Cheers,

Rico.

Thanks for this Rico.
I have sen these previously, to me it just proves that the damages are proportional to the damage done by the tort, if the damages are assessed as being to the persons character and that in itself has a recognizable financial value as perhaps in days gone by (probably more than today) this may have been applicable.
I think it unlikely to wash today that a default placed on a credit file in error would qualify, especially if it was remedied in short order when brought to the tortfeasers attention.
In Kpohorora when it says that a presumption of some damages arise in every case, it does not say that these damages do not have to be proportionate, or that they can be set at a predefined value. This would be against the very essence of common law.

[Rico]

Re: General damages for damage to creditworthiness.

Hi GT,

Proportionality doesn't exist. Durkin was restricted to the same as Kpohraror and King despite being screwed for much, much longer. Kpohraror was "remedied" in much shorter order than Noddy.

Whether a default is placed "in error" or otherwise, it is equally damaging. Noddys action was designed to lead the way in ensuring banks don't default folk "in error".

You're right though it didn't "wash". I'm unsure that's the excuse the judge used. I'd hope not anyway.

Sheriff Tierney ruled correctly:

"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"

Cheers,

Rico.

[gravytrain]

Re: General damages for damage to creditworthiness.

oK

Hyperthertical scenario.

Say someone is searching through their credit file and finds that a default was recorded some time earlier. No one else was aware of this as the peron had never made any applications for credit, it was a random search.

You I think are saying that just the act of recording the default makes them liable for damages.
This is not the case of course because there are no "damages". What you would have is cause for action nothing more.

There has to be actual loss, even if it is not easily quantified(general).

[Rico]

Re: General damages for damage to creditworthiness.

If the default shouldn't be there, they can claim damages for general damage to creditworthiness! Sweet. Their creditworthiness hasn't just been damaged. It has been annihilated!

What folk don't realise is that there is much, much more on the line than simply credit refusal. Higher insurance premiums, failed job applications etc. Not to mention the "inconvenience" of trying to have it removed.

We must stop these wrongful defaults once and for all. £8K a piece might help!

However, Noddy's judge disagreed for reasons we know not. I've a feeling she has friends in high places that aren't ready for jail.

A shocker to say he "can't appeal" though. She should be disciplined for that.

Cheers,

Rico.

[gravytrain]

Re: General damages for damage to creditworthiness.

If the default shouldn't be there, they can claim damages for general damage to creditworthiness! Sweet. Their creditworthiness hasn't just been damaged. It has been annihilated!

What folk don't realise is that there is much, much more on the line than simply credit refusal. Higher insurance premiums, failed job applications etc. Not to mention the "inconvenience" of trying to have it removed.

We must stop these wrongful defaults once and for all. £8K a piece might help!

However, Noddy's judge disagreed for reasons we know not. I've a feeling she has friends in high places that aren't ready for jail.

A shocker to say he "can't appeal" though. She should be disciplined for that.

Cheers,

Rico.

The reason is in my last post Rico, the damages may not have to be itemized but they must be real, and they must be brought to the attention of the court through the pleadings.
It is not enough just to say that the default was recorded in error.

[gravytrain]

Re: General damages for damage to creditworthiness.

The statutory requirement and remedy, for illustration. Notice not compensation for an incorrect entry.

View outstanding changesstatus warnings

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.