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Old 08-11-2008, 12:57 PM
sparkie1723 sparkie1723 is offline
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Default Sparkie v Experian

I have posted a lot about Experian on my BOS thread but its now come to the time to start another thread.

This is a follow up letter to Mr Paul Lever.



8th Novemeber 2008


To
Mr Paul Lever
Consumer Compliance Manager
Directors' Office
Experian Ltd Your Ref: PL/xxxxxxx


Dear Mr Lever,

You will have / should have received notification from the Bank of Scotland to remove the unlawful search record made by the BOS on the 12th September 2008.
This instruction has been made despite their previous confirmations to you that the search was correct and lawfully carried out, a fact Experian Ltd confirmed.

On requesting that BOS supply me with the evidence that they had complied with the conditions required to process data namely (a) my signed consent and (b) a legitimate reason being unable to provide that evidence and authority, they have been unable to do so and have now informed me that they have notified Experian Ltd to remove it.

I submit that this matter would have been resolved long before this time had Experian fulfilled their obligatory duty to me, and complied with the Fourth Principle of the Data Protection Act 1998 and the legal guidance given by the Information Commissioner’s Office to data controllers, regarding the Fourth Principle of the Act. ( Experian Ltd are dual data controllers along with the BOS) each with an obligatory duty to each other and to me as a data subject.

I submit that had Experian taken the more than reasonable steps at the time I disputed this search and supplied Experian with more than enough information to take the more than reasonable steps to ensure that the search was in fact lawful, Experian would have discovered that it was not a lawful one.

I submit that instead of taking this course of action, Experian merely accepted the word of the BOS without any contrary evidence to refute my assertions that it was in fact and in truth unlawful.

I also submit that Experian in turn allowed this unlawful access to my credit file in breach of the First Principle of the afore said Act, unlawful processing.

In allowing this search to be carried out was another act of negligence and failure to proffer due care and diligence to protect my data, not only under the Seventh Principle of the Act, but in breach of my rights to privacy to home life and personal correspondence under article 8 of the European Convention on Human Rights, which is embedded in the UK Human Rights Act.

As I have already filed a complaint to the ICO regarding the unlawful, false and fraudulent actions of BOS and have had a case reference number allocated, which will be handled personally by the manager of the caseworkers division, I am proposing to request that Experian’s role in this issue be now brought into question by that office.
I have spoken personally to the manager who has requested that I now send all the relevant correspondence to and from Experian regarding my complaint to Experian, at my earliest convenience.

I will hold back the supply of this information for 7 days,in order to give you a last opportunity to reconsider your position as to offering me substantial compensation for the aggravation vexation and distress this whole issue has caused me, and for all the “off hand dismissive” responses made by Experian throughout this dispute

Failing this I will also proceed to commence proceedings against BOS and Experian jointly in the County Court under the legislation quoted.

I note from previous correspondence that you say that you will apply for any proceedings taken to be struck out for lack of merit.
I suggest that this would not succeed and that your Mr Mills will be well aware of that fact, and I suggest that you consult with him before replying, should you wish to reply or not.

If I do not hear from you with a realistic substantial offer of compensation, I request that this letter to be considered my letter before action.

May I also remind you that although at present no loss or actual financial damage has been occurred by me as yet, through the unlawful obtaining of my personal information, the fact remains that the BOS will have all this information stored on their computer system, and that they will without doubt whatsoever keep it there for a period of at least six years.
Should I apply for any kind of financial assistance from the HBOS of any kind, in the future, this information will be considered adverse and will be taken into consideration in any application I make, and I would most certainly be refused any application for financial products.

The DPA legal guidance states, that in any action taken for distress the court should also take into consideration, not only the loss, damage and/ or distress the breach has caused but also is likely to cause someone to suffer loss in the future.


Yours sincerely


sparkie

Last edited by sparkie1723 : 08-11-2008 at 01:03 PM.
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Old 08-11-2008, 02:15 PM
spark1 spark1 is offline
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Sparkie

I like that letter The ICO told me, all monies spent to make complaint against Experian is classed as Damage / financial loss? if you can prove they breached the DPA.

Ive been to the post ofice this morning and posted a nice big envelope to the ICO. Two more complaints for them to get their teeth into.

One for Experian and one for Booker Manangement, plus more correspondence towards my GE Money complaint whats already in progress

Im just photocopying 20 plus harassment letters, demanding monies and threats of Bankrupty etc sent to the wife by a very popular DCA and lets not forget Booker Management they are still in the fold. These complaints should land on OFT desks next week I took your advice m8, keep it coming Sorry for hijacking your new thread.

Spark
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Old 08-11-2008, 02:32 PM
sparkie1723 sparkie1723 is offline
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Quote:
Originally Posted by spark1 View Post
Sparkie

I like that letter The ICO told me, all monies spent to make complaint against Experian is classed as Damage / financial loss? if you can prove they breached the DPA.

Ive been to the post ofice this morning and posted a nice big envelope to the ICO. Two more complaints for them to get their teeth into.

One for Experian and one for Booker Manangement, plus more correspondence towards my GE Money complaint whats already in progress

Im just photocopying 20 plus harassment letters, demanding monies and threats of Bankrupty etc sent to the wife by a very popular DCA and lets not forget Booker Management they are still in the fold. These complaints should land on OFT desks next week I took your advice m8, keep it coming Sorry for hijacking your new thread.

Spark

NO problem Spark1 feel free to post any time.



sparkie
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Old 08-11-2008, 05:30 PM
hellhasnofury hellhasnofury is offline
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Hello Sparkie

Would it be possible for you to put up a link for your bos thread, I am interested in reading it.

I am on a bit of a fact finding mission relating to default removals, so need to get swatting up

Thanks
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Old 08-11-2008, 07:38 PM
sparkie1723 sparkie1723 is offline
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Quote:
Originally Posted by hellhasnofury View Post
Hello Sparkie

Would it be possible for you to put up a link for your bos thread, I am interested in reading it.

I am on a bit of a fact finding mission relating to default removals, so need to get swatting up

Thanks
Hi there this is the one.

sparkie


http://consumercreditsupport.co.uk/s...0079#post60079
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Old 09-11-2008, 09:16 PM
sparkie1723 sparkie1723 is offline
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I have also posted this on my MBNA thread it a letter to Experian

Dear Mr Lever,

I write further to you to prove to you that this account has ben in dispute since April 2008, and that you have accepted data from MBNA in contravention of the Banking code as I have previously informed you.
I attach a copy of a letter I have written to MBNA.

I also make this very pertinent point to you with regard with my other dispute with Experian and ask you to take special note of this as I will be including this in my claim against Experian, the section is taken from the legal guidance given by the ICO

Quote
"Even though a data controller may be able to show that information was obtained and personal data processed fairly and lawfully in general and on most occasions, if it has been obtained unfairly in relation to one individual there will have been a contravention of the First Principle"

On the 12th September 2008 Experian allowed the Bank of Scotland ( BOS) to gain full open access to my credit file.

In the words written in a letter to me from the BOS, I copy the exact wording here...

We have obtained information from Experian, our Credit Reference Agency"
The search that Experian allowed was unlawful my personal data was allowed to be obtained by Experian and as "dual data controllers" are in breach of the First Principle for the reason stated above.

This reinforces my claim against Exerian, I have now at last discovered how Experian carry out reasonable steps to ensure a client fulfills the conditions required for processing data which Experian accept and consequently make money from.......you merely get a box ticked.
I am most certain that the court will not be very impressed with that given explanation.


Yours sincerely

sparkie
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Old 09-11-2008, 09:31 PM
spark1 spark1 is offline
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Hi Sparkie

The Box Ticking Method is a good one dont you think

They have a choice of 3 Boxes to Tick ! See Below:

Box 1. Neither of the following conditions apply and I cannot proceed with the search.

Box 2. I obtained the customer's consent to carry out this type of search.

Box 3. I did not obtain the customer's consent, but the search is in accordance with the requirements of the Data Protection Act 1998.

Box 3 ? The ICO will decide what the requirements of this option, NOT the searcher ?

Spark1

Last edited by spark1 : 09-11-2008 at 09:40 PM.
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Old 09-11-2008, 10:49 PM
sparkie1723 sparkie1723 is offline
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Quote:
Originally Posted by spark1 View Post
Hi Sparkie

The Box Ticking Method is a good one dont you think

They have a choice of 3 Boxes to Tick ! See Below:

Box 1. Neither of the following conditions apply and I cannot proceed with the search.

Box 2. I obtained the customer's consent to carry out this type of search.

Box 3. I did not obtain the customer's consent, but the search is in accordance with the requirements of the Data Protection Act 1998.

Box 3 ? The ICO will decide what the requirements of this option, NOT the searcher ?

Spark1

This is the question I will be asking in court, can this method be considered a legally binding method? Because in their Frequently Asked Questions on Experian web site.

Question Can anyone search my Credit File?
Experians answer: No! you must have given your consent.
sparkie

Last edited by sparkie1723 : 09-11-2008 at 10:52 PM.
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Old 10-11-2008, 01:14 PM
sparkie1723 sparkie1723 is offline
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Received this from Mr Lever Experian

Our Ref: PL/43168007

10 November 2008

Dear Mr sparkie

Thank you for your e-mails received on 8 November 2008 and 9 November 2008.

I can confirm that Bank of Scotland have removed the following entry from your credit report as a result of your direct correspondence with them:

"MR Sparkie XXX XXXX XXXX XXXXX XXXXX

Date of birth Time at address 29 years 10 months

Searched on 12/09/08

Searched by BANK OF SCOTLAND

Application type CREDIT CARD"

I believe that this amendment was made as a gesture of goodwill to avoid further correspondence and not because Bank of Scotland believe that this search was unlawful in any way.

As previously advised, Bank of Scotland confirmed that this search related to an application you made for a Unison credit card, which is underwritten by Bank of Scotland.

We have clearly outlined our position and how the action that we have taken does comply with the relevant legislation.

We are not required to take 'more than reasonable steps' when an individual disputes information on their credit report. Our requirement is to take 'reasonable steps' to maintain accurate information and we have clearly explained what constitutes 'reasonable steps' in our protracted correspondence.

As we have complied with the relevant legislation at all the times we will not be offering you any compensation in relation to this matter.

We only accept compensation claims where an error made by Experian causes an individual to suffer a direct financial loss.


Under Section 13 of the Data Protection Act 1998 you cannot make a compensation claim for distress unless you have suffered a direct financial loss through a breach of the Data Protection Act 1998.

"13. -

(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.

(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."

In this case, we have not made an error and you have also confirmed that the appearance of the Bank of Scotland search has not caused you to incur a direct financial loss. I appreciate you making this admission, as I am sure this will be considered relevant if you do decide to make a legal claim against Experian.

The period which Bank of Scotland retain application records is something for you to take up directly with them, as Experian is not privy to this information. If you have any concerns about how this could impact upon you on future I suggest you also raise this with Bank of Scotland or the Information Commissioner's Office.

I am sure that previous correspondence with a company will not be taken into consideration if an individual makes an application for services with that company at a later date.

We have nothing further to add concerning your dispute with MBNA and are confident that should you include this in a legal claim against Experian that we can demonstrate our compliance with the relevant legislation at all times.

I note that you continue to refer to a legal claim you are intending to make against Experian.

We will not be answering any further correspondence until in receipt of your legal claim. Please send this to the following address:

Directors' Office, Regulatory and Consumer Affairs, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

We will apply to strike out your claim if we believe that you case has no legal merit.

The fact that one claim may not have been struck out does not mean that the same will apply to any other future claims received. Each case is treated on its own merits and the presiding Judge will rule as to whether there is a case to be heard.


We have been successful in having several similar claims struck out and cost orders awarded in our favour.

Kind regards





Paul Lever

Consumer Compliance Manager

Directors' Office

My first reply

Dear Mr Lever,

It seems once again that you accept the word of BOS over mine, the BOS have NOT removed it as "a gesture of goodwill" ( as they claim) they have removed it because they have not/cannot /will not provide the necessary evidence to show that they fullfilled any of the conditions of the First Principle of the Data Protection Act to lawfully access my file, as this would show without doubt the apllication was made from inside the BOS, I have an extremely good idea from where it was applied and what office and department. to prove it will be extremely difficult, but I will continue to do that.

The BOS KNOW full it was instigated and conjectured from INSIDE their Offices.

I am now intending to report this to the Police Fraud squad as informed to do so by the ICO who will also carry out their investigation under the remit of the DPA

I therefore request that Experian carry out a trace search and locate the office from where the actual search originated from by way of computer signal trail, under the Seventh Principle

I know that Experian can do this as they have done it before ...after some pressure of course.

I do not accept that you have taken the necessary steps that you are obliged to take under the Fourth Principle

"The extent to which such steps are necessary will be a matter of fact in each individual case and will depend upon the nature of the data and the consequences of the inaccuracy for the data subject. This approach exceeds the requirements of the Fifth Principle in the 1984 Act."

I finally refer you to the last section of my letter to you, with regard to you note of appreciation that no damage as such has been caused


The DPA legal guidance states, that in any action taken for distress the court should also take into consideration, not only the loss, damage and/ or distress the breach has caused but also is likely to cause someone to suffer loss in the future.

Yours sincerely

and I followed up with this


Dear Mr Lever,

Further to my previous e-mail
I wish to challenge your interpretation regarding how damage for distress can be claimed.

Section 13 relates to any breach of ANY of the other Seven of the Eight Principles and you are quite right in stating that damage must occurr, but under the Act damage does not necessarily mean and have to be financial loss. Damage includes financial loss

There is several case law available that state that any incorrect/unlawful information on an individuals credit file ...ceates damage immediately.

I can supply you with those relevant cases which I will rely on in court proceedings

I would ask you to read the below section of the legal guidance upon which I rely.
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);

This means compensation can be awarded for distress alone under the Fourth Principle.

Yours sincerely





This has just arrived

Our Ref: PL/43168007

10 November 2008

Dear Mr Sparkie

Thank you for your e-mail received on 10 November 2008.

We have fulfilled our obligations and the information to which you refer has been deleted from your credit report.

We have nothing further to add and will not be replying to any more correspondence.

Should the police or the Information Commissioner's Office contact us in relation to this matter we will gladly assist them with their investigations.

Kind regards

Paul Lever

Consumer Compliance Manager

Directors' Office
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  #10  
Old 10-11-2008, 01:20 PM
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Dragonlady Dragonlady is offline
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They really don't want this to be dragged out any further do they? Poor babies, they will have to start listening to the plebs before much longer. Because of the adverse information on my credit files, the computer always said no, but when I challenged this and wen to the senior underwriters the decision was always overturned, because I was able to prove the information on the CRA's to be incorrect , yet the CRA's hang on to the fact their subscribers are always correct. Why should we have to go back to the crowd who put the adverse information on our files, at cost to us, when we know that the CRA's do not conduct a proper investigation. It's about time the CRA's took responsibilioty as Data Controllers for the actions they allow to happen to a subjects file.
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