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  #1  
Old 04-05-2008, 02:54 PM
sparkie1723 sparkie1723 is offline
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Default Sparkie v Equifax

I am taking proceedings out against RBS 1st Defendant Nat West 2nd Defendant and Equifax 3rd Defendant, and this is how my claim against Equifax is shaping, any comments anyone

sparkie

Draft Claim against Equifax Ltd a Credit Reference Agency, Third Defendant

This claim is brought by the Claimant against Equifax Ltd a Credit Reference Agency ( the Third Defendant), a business who’s remit is the collection, obtaining holding and storing personal, private and other data and information, including confidential financial information about individuals, referred to under the Data Protection Act 1998 as data subjects, and is responsible for the security of all such data and information.

The Claimant submits that under the provisions of the following statutes and laws;
a). The Data Protection Act 1998.
The rights of the individual ( data subject) override those of a data controller .

b). Article 8 of the European Convention on Human Rights incorporated in the UK Statute on Human Rights.
The right to privacy to home life and correspondence.
That he has the right to be protected by these statutes, and submits this claim under these Acts.

The Claimant submits that on the 21st December 2005 Equifax Ltd allowed the Royal Bank of Scotland Plc to access their data bank system and that on the 6th January 2006 Equifax Ltd also allowed the National Westminster Bank Ltd to access his credit file held by Equifax, and in doing so breached the above afore mentioned Acts.

The Claimant avers that Equifax besides being data processors they are also classed as data controllers and "dual data controllers" within the meaning of the Data Protection Act and that any breach by one controller is a breach by the other, that is to say they are jointly and severally responsible, and that both have the same responsibility to the data subject and to each other.

The Claimant also submits that by failing to carry out the necessary checks to ensure that both of the afore mention Banks fulfilled the conditions required under the First Principle schedule 2 of The Data Protection Act 1998, the requirements for the processing of data, and that processing also meaning the "obtaining" of data and information, was not only a breach of the First Principle, but a failure to proffer a duty of care that was obliged to be given to the Claimant and was also a negligent act.

The Claimant also avers that any processing must be lawful within the remit of the Data Protection Act.

The Claimant submits that by allowing the Nat West Bank to download and make a hard copy of his credit file report on this intrusion of his credit file was also a serious breach of the Seventh Principle of the Data Protection, which states the “ Appropriate technical and organisational measures shall be taken against the unauthorised or unlawful processing of personal data and his rights for protection under both of the Human Rights Acts referred to in this claim.

The Claimant also claims that Equifax were complicit in the consequential flow of events that took place after the copying of his credit file, the passing on of this data to the Royal Bank of Scotland and further transmission by an un-secure method as shown and stated on Documents 8 and 9 which are the Claimants copied credit file, to the solicitors Cobbetts LLP was again another breach of the Seventh Principle of the Data Protection Act and his rights under both the European Convention on Human rights and the UK Human Rights.

The Claimant also avers that Equifax by allowing access to their computer data banks by the Nat West using an unrecorded search method, that access was another breach of protocol that Equifax should have taken steps to prevent, by requesting the proof of consent had been given by the Claimant to the Royal Bank of Scotland or the Nat West, in order for them to access his file in the first instance, a step they failed to take.

The Claimant submits that just by merely allowing the Nat West to access their data banks as they did was an affront to the even the basic rights of the Claimant.

The Claimant relies on the following legal guidance given by the Information Commissioner in Chapter 6 .5 page 78 of that guidance and claims for the distress all the actions and non actions taken/not taken by the three Defendants has caused him, which are multiplied threefold, and that under this legal guidance compensation for distress alone can be claimed;
Quote:

“Compensation for damage and/or distress is only available in limited circumstances, namely, as a result of:-

− a contravention of the Fourth Principle (accurate/up to date);

− a disclosure made without the consent of the data controller; loss or destruction of data without the consent of the data controller; or, processing for the special purposes.”
“Notwithstanding the exemptions, data controllers remain under a general duty under the First Principle to ensure that processing is fair”.

The Claimant avers that should Equifax submit that as a data controller they consented to the disclosure ( the copying) of my credit file they are by admission complicit in all the consequential flows that transpired after this disclosure.

The claimant further avers that if they did not consent to the disclosure they are in breach of the Seventh Principle by admission

Last edited by sparkie1723 : 07-05-2008 at 12:46 PM. Reason: minor additions to claim in blue
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  #2  
Old 04-05-2008, 03:51 PM
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No comments from me Sparkie im not trained enough for that but want to say i've read and will be watching with much Admiration for what your taking on.... and where your going a bumpy but thrilling ride
HP
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Anyone who wants to email me still go ahead but i won't be checking daily, more like weekly up the library.

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time for a life style change
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Old 04-05-2008, 03:52 PM
sparkie1723 sparkie1723 is offline
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Thanks HP, It will be a small claims court claim and will cost the three of them some pennys each to take me on.
Someone has to rock their boat it might as well be me.

sparkie
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Old 04-05-2008, 05:50 PM
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This should make them sit up and take notice Sparkie. it's about time you hit them and the best bit is you have the evidence. I am looking forward to the Defence
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Old 04-05-2008, 06:02 PM
sparkie1723 sparkie1723 is offline
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Quote:
Originally Posted by Dragonlady View Post
This should make them sit up and take notice Sparkie. it's about time you hit them and the best bit is you have the evidence. I am looking forward to the Defence
So am I D/L so am I. Just got put final touches to it and the RBS and Nat West claims. Will post each of thos e separate , they will be in one claim with 3 Defendants.

sparkie

Last edited by sparkie1723 : 04-05-2008 at 06:04 PM.
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Old 04-05-2008, 07:32 PM
sparkie1723 sparkie1723 is offline
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Claim against Royal Bank of Scotland. First Defendant

I have moved this post to my RBS thread

Last edited by sparkie1723 : 05-05-2008 at 08:10 PM.
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Old 04-05-2008, 09:42 PM
sparkie1723 sparkie1723 is offline
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Claim against The Nat West Bank the Second Defendant.

Have moved this to my RBS thread

sparkie

Last edited by sparkie1723 : 05-05-2008 at 08:11 PM.
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Old 05-05-2008, 09:39 PM
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You have been busy sparkie. I don't know, I take a couple of relaxing days offline and come back to you having a a three defendant claim lol.

What will come next I wonder.

I'll have a read of the RBS thread in a bit more detail tomorrow.
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Old 27-05-2008, 01:40 PM
sparkie1723 sparkie1723 is offline
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This is going to interest EVERYONE, with reference to my LONG letter to Experian, I rang the ICO this morning and posed the question:

Will the ICO explain how a CRA can fulfil any of the conditions required under the First Principle of the Data Protection Act for the processing of personal data.
( schedule 2)

After I had gone through all them

Would you know I stumped the ICO on them all, they couldn’t answer that then can.

The only one that was offered up by the ICO was:
That they fulfilled the “ legitimate interest” condition pursued by the data controller or by the third party or parties to whom the data are disclosed.
BUT when I countered that with “ the rights and freedoms of the data subject override that of the data controller”.

The advisor was stumped he had no answer to that and just said I cannot give a categoric view on that ….you would have to take it to court……. Which I will doing with Experian.

I am certain that CRA’s cannot fulfil any one of the conditions needed to process “personal” information and are breaching the Act every second of every day on everyone they hold personal data on.

I also submit a CRA will have great difficulty in fulfilling any of the conditions required under Schedule 3 processing of “sensitive confidential” data, and banking information is considered confidential data.
As to process this kind of data the data controller must have the Explicit consent of a data subject.


If members really study the First Principe conditions as listed below I will be open for “pros and cons” of my argument because it will add weight or take it away from my proposed argument against Experian.

3.1 First Principle “Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –
at least one of the conditions in Schedule 2 is met; and
in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”

This introduces the requirement that, as a requisite of fair and lawful processing, personal data shall not be processed unless at least one of the conditions in Schedule 2 of the Act (“the conditions for processing”) is met and, in the case of the processing of sensitive personal data (see paragraph 3.1.2 below) at least one of the conditions in Schedule 3 of the Act (“the conditions for processing sensitive data”) is also met.

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions. • •

3.1.1 Conditions for Processing (Schedule 2 of the Act)
At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-
The data subject has given his consent to the processing (see paragraph 3.1.5 below). No
The processing is necessary –
(a) for the performance of a contract to which the data subject is a party; or No
(b) for the taking of steps at the request of the data subject with a view to entering into a contract. No

The processing is necessary to comply with any legal obligation to which the data
Controller is subject, other than an obligation imposed by contract. No
The processing is necessary in order to protect the vital interests of the data subject. No
The Commissioner considers that reliance on this condition may only be claimed where the processing is necessary for matters of life and death, for example, the disclosure of a data subject’s medical history to a hospital casualty department treating the data subject after a serious road accident.

The processing is necessary –

(a) for the administration of justice; No
(b) for the exercise of any functions conferred by or under any enactment; No
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department; No(d) for the exercise of any other functions of a public nature exercised in the public interest. No ]
The processing is necessary for the purposes of legitimate interests pursued by the data
controller or by the third party or parties to whom the data are disclosed, except where
the processing is unwarranted in any particular case because of prejudice to the rights and
freedoms or legitimate interests of the data subject.

The Commissioner takes a wide view of the legitimate interests condition and recommends that two tests be applied to establish whether this condition may be appropriate in any particular case. The first is the establishment of the legitimacy of the interests pursued by the data controller or the third party to whom the data are to be disclosed and the second is whether the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject whose interests override those of the data controller. The fact that the processing of the personal data may prejudice a particular data subject does not necessarily render the whole processing operation prejudicial to all the data subjects.

The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied. No order has been made to date.

A lot there for members to digest.

Sparkie’s after the CRA’s

Last edited by sparkie1723 : 27-05-2008 at 01:47 PM.
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  #10  
Old 25-06-2008, 10:54 AM
tifonet tifonet is offline
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Quote:
Originally Posted by sparkie1723 View Post
Claim against The Nat West Bank the Second Defendant.

Have moved this to my RBS thread

sparkie
Hi Sparkie,

I can't see your thread in the RBS sub forum?
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