General damages for damage to creditworthiness.

[gravytrain]

Re: General damages for damage to creditworthiness.

Yes i understand what you are saying RIco, but it doesn't make legal sense.

An action in tort must incur proportionate damages, OK if the damages are not specific they must be estimated, but it does not mean that they are not real.
OK Noddy could have put a claim in for his postage, this would have been a real cost, he perhaps could have claimed for losses due to stress caused by the debt collection activities, perhaps bolstered by a section 140 claim, these could have been argued as a substantiated loss, but unfortunately you cannot successfully argue that the data controller is liable for just placing a wrong default marker if no damage is caused. especially when he rectifies the error when he is made aware of it.

[Rico]

Re: General damages for damage to creditworthiness.

Hi GT,

Not making legal sense is probably a good thing. I wish common sense and common decency would prevail.

Specific damages should be proportionate. It's impossible to proportion general damages hence there's no need to bother.

A Section 140 claim would only serve to cloud issues (Banks favourite tactic).

Again, we're not having a go at the data controller. We're trying to get the banks to stop feeding the fat controller!

I've already successfully argued that the bank is liable just for placing a wrongful default on my file. The bank must be aware of their own actions. They shouldn't need their victims to point out that they're being victimized.

Cheers,

Rico.

[MrN]

Re: General damages for damage to creditworthiness.

Yes i understand what you are saying RIco, but it doesn't make legal sense.

An action in tort must incur proportionate damages, OK if the damages are not specific they must be estimated, but it does not mean that they are not real.
OK Noddy could have put a claim in for his postage, this would have been a real cost, he perhaps could have claimed for losses due to stress caused by the debt collection activities, perhaps bolstered by a section 140 claim, these could have been argued as a substantiated loss, but unfortunately you cannot successfully argue that the data controller is liable for just placing a wrong default marker if no damage is caused. especially when he rectifies the error when he is made aware of it.

You see the court doesnt works on "if's, but's, and what if's" and all the other possibilities... That in itself is another flaw in the system!

You have to acknowledge and accept, from common sense view, that if it doesn't occur to someone to buy their credit file they cannot find this information. So is it acceptable for a creditor to put a default on?

At first my mortgage applications were rejected I wasn't given an answer. It was "mortgage lender has processed your application and on this occasion it has been denied". No reason!!

Until a few days into the process this same thing happened again. At that point, I asked "WHY??" and at that point when the matter was digged in, the mortgage lender replied "due to adverse info being found on credit file".

Dont get me wrong some people in this country dont even know a central register on credit is even kept on them!


So going back to "what if's" - it has to be accepted that regardless of one's knowledge on the finance world the default should not be there.

In another example: It is just like an elderly person who has reached retirement age yet he continues to work. He remortgages his house to buy himself a new motor (a treat for himself over the years) when he decides to remortgage 1) he cannot and 2) at some lenders he can yet at ridiculous rates due to poor credit history (a default in error) not for the fact he has clocked retirement age, he has a very generous income.

Now bearing in mind this chap is around 65 years of age, he has lack of knowlegde on technology and more importantly on credit files.

Is he held liable for not purchasing his credit file? But his reason is as above...


I was grilled by the barrister on why it took me 3 days to buy my credit file....

If one is not experienced within a sector they cannot be held liable. Just like a person who gains weight, they think due to age my metabolism has gone down. Yet if they told their GP the symptoms they have the GP might think they have a medical condition. However, due to the patient not being qualified in the medical field he has no reason to suspect....

Or am I going bonkers here?

[gravytrain]

Re: General damages for damage to creditworthiness.

Hi GT,

Not making legal sense is probably a good thing. I wish common sense and common decency would prevail.

Yes I agree unfortunately the law is an ass as someone once said

Specific damages should be proportionate. It's impossible to proportion general damages hence there's no need to bother.

Yes you cannot quantify but they must be able to identify them.

A Section 140 claim would only serve to cloud issues (Banks favourite tactic).

I think this would have been a good idea in noddy s case, matter of opinion i suppose

Again, we're not having a go at the data controller. We're trying to get the banks to stop feeding the fat controller!

It is the Data controller at the bank that would have been responsible for recording the data, or at least instructing the CRA to

I've already successfully argued that the bank is liable just for placing a wrongful default on my file. The bank must be aware of their own actions. They shouldn't need their victims to point out that they're being victimized.

Perhaps so, but Civil redress deals in damages not rights or wrongs unfortunately

Cheers,

Rico.

See above

[Rico]

Re: General damages for damage to creditworthiness.

I was grilled by the barrister on why it took me 3 days to buy my credit file....

She was wasting time. It's irrelevant. I assume you tried to object and were drowned out. A disgrace.

[gravytrain]

Re: General damages for damage to creditworthiness.

She was wasting time. It's irrelevant. I assume you tried to object and were drowned out. A disgrace.

I suppose he was trying to convince the judge that Noddy did nothing to mitigate his losses, usual tactics.
It all ties into the fact that the court was trying to ascertain the value of any actual loss.

[Rico]

Re: General damages for damage to creditworthiness.

Noddy's judge did identify that general damages for damage to creditworthiness had occured. I guess she didn't have much choice as HSBC admitted it.

The problem is that she didn't award damages for it, as all the other judges did! In awarding such damages, the other judges said clearly that there was no need to prove specific losses.

Does this lady think she's above the law I wonder?

I'm unsure Noddy's judge knows what civil redress is.

Damage to creditworthiness is, in fact, a form of defamation. HSBC understand that. How not the judge? Incredible stuff.

Ken Clarke just down the road too. If the court can't deliver justice, folk are simply going to take the law into their own hands. How will he explain that?

It will be interesting to see if Noddy's judge continues to favour barristers over party litigants once the Supreme Court has had a say.

Ah. I was confused by the term data controller. Better just to stick to the bank. Data controllers are just doing what they're told. It'll be the chiefs going to jail. After they've been flogged of course!

Cheers,

Rico.

[Rico]

Re: General damages for damage to creditworthiness.

Noddy did nothing to mitigate his losses

Damage is done once the default goes on. Your name is mud. Rocket science it ain't.

Rico.

[Rico]

Re: General damages for damage to creditworthiness.

court was trying to ascertain the value of any actual loss.

Court should spend less time ascertaining what the defence has already admitted and read what's relevant from the case law.

Rico

[gravytrain]

Re: General damages for damage to creditworthiness.

Damage is done once the default goes on. Your name is mud. Rocket science it ain't.

Rico.

Perhaps so but no actionable losses sadly.

[Rico]

Re: General damages for damage to creditworthiness.

No actionable losses

I've managed. Don't see why others can't. Just need a judge that cares.

Rico

[gravytrain]

Re: General damages for damage to creditworthiness.

All these arguments are dealt with in Halliday[2012], including all the common law points raised, Kpohraro in paragraph 23

The only damages reclaimable are via the DPA are identifiable losses.

This is the situation now unfortunately.

[Rico]

Re: General damages for damage to creditworthiness.

Halliday ruling paragraph 12: "Judges below were wrong to require proof of special damage"

Paragraph 23 (Kpohraror) "awarded for damage not specifically proved"

The judge has erred even according to case law submitted by HSBC!

Noddy wasn't quoting the DPA and so he shouldn't. The only reason the barrister quoted it (knowing it was irrelevant) was to possibly trick the judge into thinking it was relevant.

Noddy quoted relevant case law that has been approved by HFC and the Court of Session and is unlikely to be diminished by the Supreme Court next year, when it will then become binding.. Others should follow (hang on until 1st April) along these lines.

The only thing that stopped Noddy's request for justice was the judge! For reasons known to herself and possibly "others". Her official reason is wrong, as given above.

It is accepted, even by the judiciary, that a judge can pretty much rule however they want. The law is so ambiguous. It is wide open to corruption.

However, one must hope that the better judges will cancel out the dodgy ones otherwise rule of law will be lost.

That will be bad. Even (or especially) for the bankers.

Cheers,

Rico.

[gravytrain]

Re: General damages for damage to creditworthiness.

Halliday ruling paragraph 12: "Judges below were wrong to require proof of special damage"

Paragraph 23 (Kpohraror) "awarded for damage not specifically proved"

The judge has erred even according to case law submitted by HSBC!

Noddy wasn't quoting the DPA and so he shouldn't. The only reason the barrister quoted it (knowing it was irrelevant) was to possibly trick the judge into thinking it was relevant.

Noddy quoted relevant case law that has been approved by HFC and the Court of Session and is unlikely to be diminished by the Supreme Court next year, when it will then become binding.. Others should follow (hang on until 1st April) along these lines.

The only thing that stopped Noddy's request for justice was the judge! For reasons known to herself and possibly "others". Her official reason is wrong, as given above.

It is accepted, even by the judiciary, that a judge can pretty much rule however they want. The law is so ambiguous. It is wide open to corruption.

However, one must hope that the better judges will cancel out the dodgy ones otherwise rule of law will be lost.

That will be bad. Even (or especially) for the bankers.

Cheers,

Rico.

As I see it the court in Halliday took into account all the relevant case law which included interpretation of the earlier authorities and reconciled them with the requirement of the DPA and the HRA.

On doing so she came up with the conclusion that any damage claim must be proportionate, of at least identified. There was a mention of loss of credit worthiness in Halliday i noticed, but the requirement for this would be that the default would have to be issued "maliciously with the intent to extort money from the subject", not a criteria that could be met in Noddys case i don't think.

[gravytrain]

Re: General damages for damage to creditworthiness.

Just to clarify your quote under section 12 of Haliday refers to a situation where the bank seeks to enter a record with the malicious intent to extort money, it does not refer to defaults made in error, anyone would be VERY hard pushed to prove anything else.

Section 23 when mentioning Kpohraro, states that although no damages were calculated, damages must be shown. It distinguished the situation where a check is returned, and the possible effect on trade of a reputation for bouncing checks, to the situation where a credit marker once removed would give no indication to future lenders of any earlier problem, and therefor the earlier error would have little or no ongoing effect on the subjects creditably.

In any case it is confirmed that all sanctions for breach are covered by the DPA.