Martinix v Barclaycard

[martinhw]

Sent S.A.R - (Subject Access Request) on 15th December 2006.

Yesterday I got this letter from them in response to the S.A.R - (Subject Access Request).

Further to your request for copy statements (I actually requested a full Subject Access Request with recorded calls and all manual intervention, not just statements - when are you going to learn to read?), we are writing to inform you that the legal time limit for supplying this information is about to expire. (It just did!) If your initial complaint was through the Information Commissioner the time scale is 28 days. If this is your first request the legal time limit is 40 days.

The reason for the delay in our providing this information is the very large number of identical requests that we have received, all of which we are obliged to respond to within the same timescale. The recovery of some of the information you have requested from archive is a lengthy and laborious process and we are reviewing our staffing position to put us into a better position to deal with the demand. (Yet when millions of us went overlimit or paid late - you have the staff to charge us)
We have made the Information Commissioner's Office aware of the volume challenges we face and that we are writing to you in these terms. We are sorry for the delay but assure you that we will let you have your statements as soon as we can. (I suggest hiring more people)
We regret that we are not able to enter into correspondence with you about this issue.

As their time for Subject Access Request is up, I am going to send the non compliance letter.

[martinhw]

Subject Access Request sent recorded delivery on 15/12/2006.

[martinhw]

Subject Access Request reminder letter sent 22/01/2007:

Data Protection Team
Dept LRC
Barclaycard
Northampton
NN4 7SG


22/01/2007

Data Protection Act 1998
Reminder Letter (Section 7)

Dear Sir/Madam,

Account No. 1111 1111 1111 1111

You have 5 days remaining in which to comply with my Data Protection Act Subject Access Request dated 15/12/2006. This item was sent via Royal Mail Recorded delivery with the tracking number XXXXXXXXXXXX.

If you do not comply within the next 5 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.


Yours faithfully,
Martinix

Enc: Copy S.A.R dated 15/12/2006

[martinhw]

Received a response to my reminder:

Dear Mr XXXXXXX
SUBJECT REQUEST ACCESS NUMBER: 310
Further to your request for copy statements, we are writing to inform you that the legal time limit for supplying this information is about to expire. If your initial complaint was through the Information Commissioner the time scale is 28 days. If this is your first request the legal time limit is 40 days
The reason for the delay in our providing this information is the very large number of identical requests that we have received, all of which we are obliged to respond to within the same timescale. The recovery of some of the information you have requested from archive is a lengthy and laborious process and we are reviewing our staffing position to put us into a better position to deal with the demand.
We have made the Information Commissioner's Office aware of the volume challenges we face and that we are writing to you in these terms. We are sorry for the delay but assure you that we will let you have your statements as soon as we can.
We regret that we are not able to enter into correspondence with you about this issue. Yours sincerely,
Adrian Whalley
Head of Privacy & Data Protection
Legal Counsel
Data Protection Team
Legal and Regulatory Compliance
Dept LRC

[martinhw]

Sent a response on 30/01/2007:

Adrian Whalley
Head of Privacy & Data Protection
Legal Councel
Data Protection Team
Dept LRC
Barclaycard
Northampton
NN4 7SG


30/01/2007

LETTER BEFORE ACTION
Section 7 – Data Protection Act 1998

Dear Mr. Whalley

Account No. 1111 1111 1111 1111

You have failed to comply with my Data Protection Act Subject Access Request dated 15/12/2007, and also my reminder letter dated 22/01/2007.

You have however sent a letter dated 25/01/2007 in acknowledgement of my Subject Access Request. I would like to point out that my request was not merely for copies of my statements, as you have indicated. I have quoted from my original request below:

“Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.”

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

Yours faithfully









Martinix

Enc: Copy S.A.R dated 15/12/2006

[martinhw]

Today Barclaycard has defaulted by not responding to my
- Subject Access Request dated 15/12/2006
- Subject Access Request reminder dated 22/01/2007
- Subject Access Request LBA dated 30/01/2007

What is the next action I am required to take or how do I get a court order forcing Barclaycard to comply?

[jimmyay]

ok martin well seing as we're at the same stage with barclaycard i shall follow your case with interest.

[steve2603]

Hey Guys I'm in exactly the same boat. Sent Barclaycard a LBA on the 29th Jan giving them 7 days to provide me with Subject Access Request or I'd take them to court.

Deadline now passed & although I'm clued up on MCOL I'm not exactly sure what I am claiming for as I don't have a definative figure (cause the wont give me my statements). I've looked & looked but cannot find a standard claim to use in MCOL. Any ideas??

Cheers ---------- Steve.

[martinhw]

I wanted to use MCOL, but this is a request for an order of disclosure and additionally for compensation of non compliance. MCOL is purely for claiming money and I am using the N1 form to obtain the order and compensation.

There are some that are asking for around 350.00 in compensation, but I am basing my claim on 9.00 per hour plus court fee and travel expenses. I am more interested in getting my info than claiming compensation.

[segaman]

The Subject Access Guide which is available for download from the Information Commissioners website states:-

WHAT CAN I DO IF THE DATA CONTROLLER DOES NOT COMPLY WITH MY SUBJECT ACCESS REQUEST?

If the data controller fails to respond to your request within 40 days, or fails to respond
to your satisfaction, and you have sent all the information required to the data controller to enable him to deal with your request, including the fee, you should send
the data controller a reminder by recorded delivery, keeping a copy of your letter.
If you still do not receive a reply fairly quickly or if you think that the information you
receive is wrong or incomplete you may:

• ask the Commissioner to carry out an assessment as to whether it is likely or
unlikely that the data controller is processing your personal data in compliance with the terms of the Act;

• pursue the matter yourself through the court. For information as to how to do
this please refer to the leaflet called “Taking a case to court”.

An assessment will inform you as to whether the matters that concern you are likely to involve a breach of the Act and may help you in making a decision as to whether to take legal action against a data controller under the Act. However, an assessment from the Commissioner is not necessary to take a case to court.

WHAT ORDERS CAN THE COURT MAKE?

If a court is satisfied that a data controller has failed to comply with a subject access
request contrary to the provisions of the Act, the court may order him to comply with
such a request. The court also has the power to award compensation. Please refer to the leaflet called

“Claiming compensation”.

Therefore you should be able to get an order from the court ordering Barclaycard to comply with your Subject Access Request and you may also be awarded compensation for the delay.

The above documents can be found here:-

Subject Access - A Guide for Data Subjects - http://www.ico.gov.uk/upload/documen...a_subjects.pdf

Taking a Case to Court - http://www.ico.gov.uk/upload/documen...e_to_court.pdf

Claiming Compensation - http://www.ico.gov.uk/upload/documen...mpensation.pdf

[fab1969]

Originally Posted by segaman

The Subject Access Guide which is available for download from the Information Commissioners website states:-

WHAT CAN I DO IF THE DATA CONTROLLER DOES NOT COMPLY WITH MY SUBJECT ACCESS REQUEST?
If the data controller fails to respond to your request within 40 days, or fails to respond
to your satisfaction, and you have sent all the information required to the data controller to enable him to deal with your request, including the fee, you should send
the data controller a reminder by recorded delivery, keeping a copy of your letter.
If you still do not receive a reply fairly quickly or if you think that the information you
receive is wrong or incomplete you may:
• ask the Commissioner to carry out an assessment as to whether it is likely or
unlikely that the data controller is processing your personal data in compliance with the terms of the Act;
• pursue the matter yourself through the court. For information as to how to do
this please refer to the leaflet called “Taking a case to court”.
An assessment will inform you as to whether the matters that concern you are likely to involve a breach of the Act and may help you in making a decision as to whether to take legal action against a data controller under the Act. However, an assessment from the Commissioner is not necessary to take a case to court.
WHAT ORDERS CAN THE COURT MAKE?
If a court is satisfied that a data controller has failed to comply with a subject access
request contrary to the provisions of the Act, the court may order him to comply with
such a request. The court also has the power to award compensation. Please refer to the leaflet called “Claiming compensation”.

Therefore you should be able to get an order from the court ordering Barclaycard to comply with your S.A.R - (Subject Access Request) and you may also be awarded compensation for the delay.

The above documents can be found here:-

Subject Access - A Guide for Data Subjects - http://www.ico.gov.uk/upload/documen...a_subjects.pdf

Taking a Case to Court - http://www.ico.gov.uk/upload/documen...e_to_court.pdf

Claiming Compensation - http://www.ico.gov.uk/upload/documen...mpensation.pdf

Having read the leaflets, do I then send in my N1 form for a Subject Access Request request claiming Unliquidated damages?

I really only want the information!! Or should I just file for a Part 8 procedure??

[jimmyay]

i think its a case of just go to the court with the N1 form, though i have been slightly put off by others saying that court action shouldnt be taken until you have exhausted info commisioner route, ( who can take months to respond now they are being deluged with cases) but others ( and guidance on this site) disagrees and says you can jsut go for it.

i am about to send off the N1 but have hesitated , despite barclays being beyond 40 days and having sent my letters. i just want the info too. grateful.

i have taken on board claims of others and will also be charging £9p/h rather than £350 i originally thought, if i go with the N1.

Would appreciate like you martin some guidance from experts on this site.

[martinhw]

I finally got my statements and Data requested.

It's only 20 days LATE ! - but they are all there.

I got my info after sending a Final Demand as below:

Adrian Whalley
Head of Privacy & Data Protection
Legal Councel
Data Protection Team
Dept LRC
Barclaycard
Northampton
NN4 7SG

12th February 2007

Final Demand
Section 7 – Data Protection Act 1998

Dear Mr. Whalley

Account No. XXXXXXXXXXXX
You have failed to comply with my Data Protection Act Subject Access Request dated 15/12/2007, my reminder letter dated 22/01/2007 and my letter before action dated the 30th January 2007.

I now STRONGLY urge you to respond immediately with the information I have requested. Failure to produce this information within the next 7 days will result in legal action taken through the County Court.

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice. I will also register a complaint with the Information Commissioners Office.

Yours faithfully






Me

[martinhw]

Just drafted my prelim letter and is ready to post:

Request for repayment of charges

Dear Sir/Madam,

ACCOUNT NUMBER: XXXXXXXXXXXXX

My request
I am writing to ask you to refund to me the charges which you have levied from my account over the last 6 years.
I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.
Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Your responsibilities
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.
I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.
Your concealment of the true nature of your charges has prevented me from asserting my right until now.

What I require
I calculate that you have applied £600.00 in levies and charges, further, I also claim interest at a rate of 27.95% APR as set out in the attached list of charges. I believe this rate to be justified under the principle of mutuality and reciprocity, and is based on your Purchase interest rate that would be applied under the terms of the above mentioned account. Therefore the total amount owed as of today’s date is £1140.62.
I am enclosing a copy of the schedule of the charges which I am claiming.

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosities caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

In addition to full payment of the sum mentioned above, I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.


My targets to resolve this matter
I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.



Yours faithfully,

[martinhw]

Got the following response from BC today.

Thank you for your recent letter, your details have been passed to me in order that I may respond in my capacity as Customer Relationship Manager.
I am sorry you feel the charges you have incurred are unfair. We believe that our charges are both fair and transparent, and we make them clear in our Terms and Conditions, and on the reverse of every monthly statement.
In your correspondence you have outlined a legal argument which you say supports your view. As I am sure you will appreciate Barclaycard is aware of all the information you have drawn to our attention. I must inform you however, that we disagree with your legal analysis.
Putting the above to one side, as a goodwill gesture and without any admission of liability, I am prepared to credit your account with the difference between the charges that you have incurred and the £12 fee recommended by the OFT. This would amount to £300.00. The credit will be reflected on your next statement.
May I take this opportunity to remind you that the best way to avoid similar charges in the future is to remain within your credit limit and ensure that your monthly payment reaches us with the required timeframe.
Should you have any further questions regarding this matter please do not hesitate to contact me. If my reply does not meet with your expectations you may ultimately be eligible to refer to the Financial Ombudsman Service. Further details of this service are available on request. If I have not heard from you within 8 weeks from the date of this letter, I will close my complaint file in accordance with our usual practice.
Yours sincerely
Tracy Burgess
Customer Relationship Manager