Durant v FSAgreenspun.com : LUSENET : Repossession : One Thread
Do any of the experts have an opinion yet as to how the Durant v FSA ruling re SARN requests will affect things? The judge made a point of saying that most paper records will not be covered and that a SARN request cannot be used as a substitute for Discovery. This would imply that we cant use a SARN request to obtain leverage against the lender any more.
More info here:
and the judgement is here:
"Nor is to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties."
-- Ron Baxter (email@example.com), June 29, 2004
I don't know much about this but I would gauge from this that what the Judge is saying is that not everything is shown up in SARNing the Lender and that only Discovery will show all paperwork connected. Also Lawyers are exempt in that they have Legal Privilege in which their docs become available during Discovery but not before. SARNing the Lender still builds up a case - we have discovered that my fiance's Lender never marketed property, just bunged it straight up for auction 18 months after bad advice to hand keys back was given and this can only help.
-- Chris (firstname.lastname@example.org), June 29, 2004.
Here is an extract from The Lawyer.com on the Durant case --------------------------------------------------------- Preoccupied as it is with the Butler report, it may take the UK Government a little while to open an envelope with a Brussels postmark, which is due to arrive in Westminster this week.
The Government, however, should dig out its letter-opener and sharpish.
The contents of the letter, sent at the behest of the European Union's (EU) Internal Market Commissioner Frits Bolkestein, will have an impact on just about every major corporate in the UK, not to mention their lawyers.
A European Commission spokesperson today confirmed to The Lawyer that the EU has launched an infringement action against the UK for failing to implement the data protection directive properly. This was after receiving an awful lot of complaints.
This very same directive popped up for the first time in an M&A deal two weeks ago when Marks & Spencer's chief executive Stuart Rose sent out data protection requests when he discovered his phone records and mail had apparently been interfered with.
Litigators and employment lawyers have known for some time that the UK's version of the data protection directive is a pretty useful way of getting information without all the trouble of discovery. And as Rose found out, it only costs a tenner a pop.
Last year, in Michael John Durant v Financial Services Authority, the Court of Appeal adopted what some UK lawyers regard as a "pragmatic" approach to data protection by strictly limiting what types of personal data are allowed to be disclosed.
In essence, if John Smith wants to see his data, he is only entitled to see files which contain the name John Smith and some other identifying information such as a bank account number - just the name John Smith is not enough.
However, the Commission is not at all happy with the Court of Appeal's decision. Plus it feels that the UK's Information Commissioner, former Clifford Chance lawyer Richard Thomas, has insufficient powers of enforcement and investigation.
Forget the fact that France hasn't actually implemented the directive at all yet - that's a familiar British gripe. The Commission is serious about harmonising the way data protection works across the EU and said as much in a report last year. It can now take the UK to the European Court of Justice if it doesn't amend the law.
M&A lawyers and to a certain extent litigators can be a bit snooty about their data protection colleagues, who they usually refer as to as "boffins."
At this stage, the Commission has just made a formal request to the UK, which has two months to reply, and even then may not act on its findings. However, if the Commission is not satisfied with the information it receives from the Government, things could get pretty tricky, with the Commission giving a reasoned opinion - not a great prospect.
If Bolkestein gets his way, many corporates and indeed law firms are going to have to change their data filing systems. So you'd better be nice to your boffins, it looks like you may need them.
Helen Power City editor, The Lawyer
-- Zena (email@example.com), July 18, 2004.
My dad will issue his civil claim tomorrow in the High Court;
"Johnson vs The Information Commissioner" concerning a breach of the Data Protection Act - by the Information Commissioner.
Watch this space.
See my web site; www.zcredit.co.uk
-- Zena (firstname.lastname@example.org), July 18, 2004.