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    • Doc 04-19-2024 11-01-51-merged-compressed.pdf good morning.    9 pages attached.    thank you  UCM
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    • Your topic title was altered last June 23 by the owner of this forum in the interests of the forum Anyway well done on your result and thank you for concluding your topic, title updated.   Andy   .
    • So what    Why ? Consent Order/ Confidentiality ? This would be be invaluable to followers of your topic.  
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Judge says-Data Protection Act S.A.R compliance order- not in Small Claims Court


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A while ago there was a discussion about whether a Small Claims court could give an order to comply with a SAR.

 

I was in SC court yesterday and the judge said I would have to do this through the County Court, but adjourned the case so that I could find precedent to the contrary.

 

Bookie has said that Smal Claims CAN do this, IF there is an amount claimed in damages.

 

Can anyone remember the thread or shed any light on this situation?

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Can't help with the thread, but I had a similar experience a couple of months back with Drakes. The Judge was surprised to find that he could award me damages in the SC Court for a breach of the Data Protection Act. He took a break during the hearing to refer to his law books Goode [?] I think. Well it was good for me.:D

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The small claims court is only 1 part of a county court, i.e. its just a division of the county court.

 

But he is talking junk because loads of people have got compliance Orders through small claims. This one for example!

 

There are also numerous leaflets produced by the ICO this leaflet certainly sets out the stall in that a DPA non compliance can be enforced in the County Court, according to the ICO anyway, and leaflet 8 which this refers to (although i cant link to it right now as their site is playing up) expands on this further.

 

There will be plenty of cases where such an Order was granted but i have no idea how you could make a reference to a judgement from a small claims court!!

 

I'd try mailing people who have posted on here saying they have got such an Order and seeing if you can't get a transcript or case reference number that you could give the court. If you do find out though let us know here, i'd be interested in this and it sure has implications for others who may have the same problem.

************************

 

DCA Theats: Jystmystry V's Wescot - I Win (link)

Default Removal: Jystmystry V's NatWest - In Progress (link)

General Debt - Jysmystry v's Optical Express (link)

 

You can run but you'll just die tired

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I was also under the impression that Small Claims was part of the County Court.

 

The judge said that although the Small Claims and County Courts come under tha same umbrella, her interpretation of the Act was that Parliament intended claims under the DPA to be heard in the actual County Court section of the building.

 

She said that although she herself would be hearing the case, (and these are her exact words) she wears:

 

"different hats in each court room, (well different wigs, to be exact, Mr Noomill!)" as she girlishly brushed a hand through her auborn hair.

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she came onto you? haha excelent.

 

Just get a few case numbers and use them. She asked for a precedent, tell her you can't cite a precedent as a formal legal precedent cannot be formed in any court below a High court or division but that you have provided case references to DPA non-compliance judgements in small claim division of couty courts from X, X & X

************************

 

DCA Theats: Jystmystry V's Wescot - I Win (link)

Default Removal: Jystmystry V's NatWest - In Progress (link)

General Debt - Jysmystry v's Optical Express (link)

 

You can run but you'll just die tired

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  • 3 weeks later...

Hello Noonmill,

 

Any news on this yet, I am considering whether it is worth my while issueing a N1 for non-compliance under the dpa with the nw. They are ignoring my request for information that I should have been given with my SAR

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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My claims have been Generally Adjourned.

 

Im leaving it to the Information Commissioners Office to assess my complaint before going any further.

 

Hello NM,

 

Thanks for that reply, I will take your advise, before rushing to court. was it you that decided to adjourn your claim.

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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AS you can see, my request for case numbers didnt bear fruit.

 

Wow NM, you have a good gift, you could read my mind and know my next question. Can you tell me if I will be successful in getting the infor I need for my mis-selling ppi claim:D

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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No, it was the judge's idea. Im quite glad actually, as the baby barrista NCO had engaged told me before the hearing, such as it was, that NCO didnt have to comply due to Durant.

 

I'll leave it with the ICO for the moment as they have already paid the damages I claimed.

 

Nothing to stop you claiming damages along with an order for compliance, though. Template POCs in the library.

 

This case is against a DCA and nothing to do with bank charges.

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Are you just looking for an Order to comply with your request, without damages? This should be issued on a Part 8 procedure Claim form;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

Read page 12 - claiming for specific performance.

 

If you are wanting damages, along with specific performance, this should be on a Part 7 form. (Read page 8 in the above link)

 

The claim forms can be found here;

 

Part 7 - N1 - http://www.hmcourts-service.gov.uk/courtfinder/forms/n1_0102.pdf

Part 8 - N208 - http://www.hmcourts-service.gov.uk/courtfinder/forms/n208_1000.pdf

 

Interesting where they say this should be assigned within the County Court? I'm assuming they mean which track to assign it to - ie, small claim or fast track.

 

Your arguments for the small claims track should be;

  • Irrefutable evidence in question, so the only issue is how the law applies to the facts - the Defendant can't claim that they haven't received the request or that they haven't had the specified time period to respond. (Assuming you have proof of postage/delivery)
  • The Law involved is substantial, primary legislation - an Act of Parliament can't be questioned in the County Court, as long as the facts are clear. (See above)
  • The amount of the claim is below £5k. (I'm assuming)
  • The ICO recommends that DPA SAR actions are brought in the small claims track of the County Court
  • The Defendant would probably consent to a small claims allocation, as it would cost them to appear/defend on the fast track (I'm surprised you've even gotten to the hearing stage, to be honest)

This should be your argument, noomill060 - not relying on other small claim actions, as there is no precedant in County Court cases due to the Judge's use of discretion.

 

I'll be interested to see how this goes, as I'm about to bring 2 actions against O2 for damages and specific performance for non-compliance. I may be asking for your case reference number, if I'm challenged on the same grounds - a thread for these case numbers would be a good resource for CAG to have stickied, if Judges aren't playing ball after this argument.

 

The other thing I'd say (if this doesn't work) is just to ask the Judge to assign it to the fast track - you don't have a chance of losing, but the other side will be forced to pay your costs when you win. Win-Win either way, I'd argue.

 

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This complicated by the fact that the DCA has admitted liability, supplied part of the data requested and paid the damages claimed.

 

The data supplied consists of a list of times the DCA phoned me, some explanation of what was said by myself during these calls and a coded list of letters sent to me with no copies of these letters.

 

My SAR asks for all my personal data, including audio files, emails containing my personal data from and to their client.

 

They intend to use the judgement in Durant v FSA in their defence to avoid disclosure.

 

Judge reckons she cant hear the case in Small Claims and must hear it in fast track, putting me at risk of potential costs for simply enforcing DPA rights.

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Look at s15, which expressly gives county court jurisdiction. i'll have a look in my procedure manual, and get back to you.

i will be off site for the next month or so. if you have any problems, feel free to report the post so a moderator can help you.

 

I am not a qualified or practicing lawyer.

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The judge told me that she would transfer the case to fast track

 

"unless I could supply her with evidence that such cases had in fact been dealt with in Small Claims previously"

 

I know that this is an unusual request for a judge to make given the law involved. I cant help but suspecting that the judge may be less than sympathetic.

 

The case was incorrectly described as "Unfair bank charges" on the court notice board and the court clerk asked if she could borrow my claim form and partics of claim to photocopy as they had lost the one I sent them!

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You might get a different Judge next time, so the outcome may be different - this is the problem with discretion, in that the can allocate to which ever track they fancy regardless of what you say. (Unusual they even ask)

 

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The conclusion I've come to is that claims under s7-14 can be brought in any track. This is, therefore, at the discretion of the judge.

 

since they have already paid you damages, in effect this is now a non-monetary claim

 

bluntly, since they are defending on durant, i think the case will be complicated enough that the court probably should hear the case in the fast track. However, it's not a case of the law requiring hearing in a particular track, merely the assessment of the complexity of law, fact and judicial involvement.

 

That's my take, but PMing bookie to have a look at the thread might be a very good idea.

Halsbury's Laws of England/PRACTICE AND PROCEDURE (VOLUME 37 (REISSUE))/9. CASE MANAGEMENT/(2)

THE PRELIMINARY STAGE OF CASE MANAGEMENT/470. General rule for allocation.

470. General rule for allocation.

 

In considering whether to allocate a claim to the normal track for that claim

1
, the court will have regard to the following

matters
2
:

(1) the financial value, if any, of the claim
3
;

(2) the nature of the remedy sought

4
;

(3) the likely complexity of the facts, law or evidence
5
;

(4) the number of parties or likely parties
6
;

(5) the value of any counterclaim
7
or other P art 20 claim
8
and the complexity of any matters relating to it
9
;

(6) the amount of oral evidence which may be required
10
;

(7) the importance of the claim to persons who are not part ies to the proceedings
11
;

(8) the views expressed by the parties
12
; and

(9) the circumstances of the parties
13
.

The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the

matters set out above
14
.

The court will not allocate proceedings to a track if the financial value of the claim, assessed by the court
15
, exceeds the limit

for that track unless all the parties consent to the allocation of the claim to that track
16
. Where two or more claimants
17
have

started a claim against the same defendant using the same claim form and each claimant has a claim against the defendant
18

separate from the other claimants, the court will consider the claim of each claimant separately when it assesses financial

value
19
.

The court will not allocate a claim to the small claims track if it includes a claim by a tenant of residential premises against

his landlord for a remedy in respect of harassment or unlawful eviction
20
.

1

Ie under CPR 26.6: see paras 467-469 ante.

2

CPR 26.7(1).

3

CPR 26.8(1)(a). As to calculating the value of the claim see para 301 note 5 ante.

4

CPR 26.8(1)(b).

5

CPR 26.8(1)©. As to evidence see further para 951 et seq post.

6

CPR 26.8(1)(d). As to parties see para 251 et seq ante.

7

For the meaning of 'counterclaim' see para 684 note 1 post.

8

For the meaning of 'Part 20 claim' see para 684 post.

9

CPR 26.8(1)(e). Where the case involves more than one money claim (eg where there is a Part 20 claim or there is more than one claimant each

making separate claims) the court will not generally aggregate the claims. Instead it will generally regard the largest of them as determining the

financial value of the claims:
Practice Direction--Case Management--Preliminary Stage: Allocation and Re-allocation
(2000) PD 26 para 7.7.

Page 278 of 978

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... 11/7/2007

10

CPR 26.8(1)(f).

11

CPR 26.8(1)(g).

12

CPR 26.8(1)(h). The court will treat these views as an important factor, but the allocation decision is one for the court, to be taken in the light

of all the circumstances, and the court will not be bound by any agreement or common view of the parties:
Practice Direction--Case Management--

Preliminary Stage: Allocation and Re-allocation
(2000) PD 26 para 7.5. As to the obligation on the parties to consult see para 463 note 19 ante.

13

CPR 26.8(1)(i).

14

CPR 26.7(2).

15

Ie under CPR 26.8(2): see note 16 infra.

16

CPR 26.7(3). It is for the court to assess the financial value of a claim and in doing so it will disregard any amount not in dispute, any claim

for interest, costs and any contributory negligence: CPR 26.8(2). For the principles applied by the court in determining whether an amount is in

dispute see
Practice Direction--Case Management--Preliminary Stage: Allocation and Re-allocation
(2000) PD 26 para 7.4.

17

For the meaning of 'claimant' see para 15 ante.

18

For the meaning of 'defendant' see para 15 ante.

19

CPR 26.7(4).

20
See para 467 the text and note 10 ante.

 

i will be off site for the next month or so. if you have any problems, feel free to report the post so a moderator can help you.

 

I am not a qualified or practicing lawyer.

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Thanks for that TT.

 

This is why is was happy to have it adjourned. I made an official complaint to the ICO at the same time as I started my claim and wrote to the ICO letting them know the current situation and Im expecting a response to my complaint this month.

 

I'll chase them up tommorow.

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