Jysmystry v Optical Express

[jysmystry]

k, draft LBA.

 

Unless anyone tells me of any huge concerns they have it will be sent on Tuesday after the bank hols.

 

Dear sirs,

 

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

I refer to my previous correspondence with yourselves dated 1st February 2008 and 10th March 2008 and your response, via a Lyndsey Madden, dated February 11th 2008.

 

I submitted to your company a properly formatted subject access request on 1st February 2008 and which was deemed served on 4th February 2008. You are allowed, by statute, 40 days to comply with this request. That period has now expired and as such you have failed to comply within the timescale clearly imposed by legislation.

 

Please also note that you have failed to supply me with details of your complaints policy despite 2 written requests. I would be grateful to receive this information (or written confirmation that you have no such policy) by return as I wish to immediately make a formal complaint for your investigation. I feel that by making a formal complaint the despicable, threatening and now it seems unlawful activities of employees of your company will be brought to the attention of someone willing to do something about it.

 

As your company has harassed me, threatened me with unfounded legal action, ignored my complaints and defied OFT debt collection guidance I feel this would constitute a serious flaw in your operations and a matter any reasonable company would look to address. Now of course my complaint will also include the fact that your employees have caused Optical Express to breach primary legislation.

 

Therefore please take note that unless you comply fully with my Subject Access Request within 14 days from receipt of this letter I shall be issuing proceedings against you in the County Court for breach of section 7(8) of the Data Protection Act 1998 together with a claim for damages and distress under section 13 of the Data Protection Act 1998 and will also be seeking to recover my reasonable costs incurred in doing so.

 

Yours faithfully

 

Lil ol me

[2Grumpy]

If they were sending lenses every 2 months, they should have been sending 2 boxes of 30.

 

If they were only sending 1 pack every 2 months then it made them very expensive, as well as your not being able to see very well 1 day in 2.

 

I suspect that you should be asking for a refund of half of what you paid if they only sent 30 at a time!

 

Grumpy

[Dustymunchkin]

Hi J. Right behind you. Don't suppose you're anywhere near Bristol? Can we sue en masse? Doesn't look like your LBA has had any effect on our Lyndsey. Certainly no sign of putting brain into gear before hitting the keyboard.

 

Hi 2G Thanks for concern but I only wore one so 30 was kind of logical. Is 52 days relevant to anything? Martian calendar possibly?

 

Anyway here's Lyndseys latest. What is this costing them?!!!

 

 

Central ID 52624625

29/3/08

 

Dear Lyndsey,

 

I refer to your letter dated 27 March 2008 which I received on 28th March 2008. with the CID 52590113

I’m not too sure what you were trying to achieve by restating a point that I have never questioned (i.e. that Optical Express tried to debit my account 2 & 3 months after it was closed in Feb. 2004) You should have a copy of the letter I received on your files confirming that the account was closed and fully paid up.

The question as to why OE would continue to request money for a closed account has been answered (albeit not directly) I have even revised my opinion that ‘no company would wait 4 years before informing a client that a ‘legitimate’ direct debit request had been declined’ (to exclude Optical Express)

I was hoping you’d tell me that you’d passed the letter to a senior manager and forward me the data I requested on 23rd February under the Data Protection Act 1998

As your company is a registered data controller under the above act (Registration No. Z8248854) you are legally obliged to follow procedure when receiving a subject access request. To date you have failed to respond at all to that request.

You should have forwarded that request to the data control manager who would then have had 40 days to supply the information. You could have charged me up to £10 for this service but would have had to have informed me of the charge within the 40 days.

I believe the fine for failure to comply falls on the individual rather than the company and to protect yourself you need to ensure that you have recorded evidence that this request was passed to the correct authority. Ignorance is no defence in law.

Once I have this information, I will be able to look at the evidence supplied by yourself suggesting that Optical Express owe me a substantial amount of money. I would remind you that it is a criminal offence to alter any of this data once an SAR has been received.

While I do not need any more mail telling me I did not make any payments after my account was closed. (I know that) you do make one very significant observation in your letter. You state that your ‘systems’ show an incorrect figure (by which I assume you mean your systems are not to be relied on)

We now agree on two things.

Kindest Regards

[The GodMother]

have you issued court papers to make them comply with your S.A.R - (Subject Access Request) request yet as that would be your next step.

[Dustymunchkin]

Thanks Godmother. No. I've done nothing but send letters. As it stands they have another few days. I have no legal knowledge but got the impression that the SAR was aimed at preventing data abuse and might not be supported by a court. The real reason I want to see it is because: A: I suspect it's not my account (constantly sending me wrong ID reference)

B: I can see if they have details of me closing account in Feb 2004.

C: If Lyndseys summary is correct then they owe me money.

 

I thought my next step would be to write to someone senior enclosing copies of the letters or maybe just write saying it's come to my attention they owe me money but any advice would be gratefully recieved.

 

My feeling at the moment is they've wasted so much of my time & completely ignored everything I've said and every question I've asked.

The claim they're making isn't even logical. They're saying they wanted to charge me three times for one dispatch & I didn't pay the second & third charges. (I think Lyndsey must have huge assets in other areas)

 

I'm appalled that they dont give a damn for the law or their customers but dont know if I have the time to give to it. On the other hand I feel I should because they will be treating others just as badly and the sequence of letters I have is pretty damning. I also know I closed my account and paid in full before cancelling my direct debit.

 

Dusty

[ScarletPimpernel]

f you have issued a SAR (s.7 of the DPA 1998), you can enforce it in court. The court should order them to comply, and you should get your costs.

 

It's also worth reporting them to the ICO - they won't do much, but it's all grist to the mill.

[jysmystry]

I must stop reading your letters whilst i'm drinking coffee dusty! Your last para had me chuckling away and i remain utterly confused as to why she invites you to "write to her at the above address" and then proceeds to tell you their office opening hours. What does that even mean?

 

Mind you should look on the bright side, at least they reply to you. I'm just being ignored at the moment. Thats a good thing though for me as my LBA was signed for last week and only a few more days before the 14 days is up. I went to the court today and got me a few copies of the N1 claim form and i'll be doing my POC this week in preparation.

 

I might still get a reply as i sent the LBA to their head office rather than patient accounts but i'm not holding my breath as they still haven't replied to my letter from 10th March (maybe i used too many big words).

 

I hope they don't reply as it will be interesting to go to court and it will only set me back £30 in costs to take it. If i get to go i'll request my costs of around £100 (court costs, postage, research time, tenner per letter etc) then damages under s.13 at the discretion of the court. Will be well under £500 so there should be no issues about whether it goes small claims/fast track etc as some other have had.

 

As regards location Dusty im in Devon so not to far away from Bristol, we could indeed do it together, court buddies etc. At the very least i'll let you know exctly what happens with mine as i'm a fortnight ahead of you so can you any tips that might help.

 

If we're honest though its really just a case of turning up in court on the day. Its very very clear legislation, we made a request, they failed to comply so i don't see any normal circumstances in which they outcome can be anything other than a court order in our favour. Its about as dead cert as your going to get i reckon and its all in the favour of the data subject. Mind, i can foresee one scenario in which it might all go pete tong but im not going to say anything on here, you never know if they are aware of CAG and i wouldn't want to give them an origional idea hehe

[jysmystry]

I have decieded now that this really isn't worth it, Im just going to pay them the money they want. Who I am to cause Optical Express all this trouble and forcing them to expend time and energy compling with the DPA when really i should just trust them and pay up. I mean, if you cant trust a big company like this who can you trust?

 

I posted a cheque this morning.

[Dustymunchkin]

.....and Lyndsey is a very astute and capable employee?

[The GodMother]

DOnt pay them anything they have basically admitted they owe you money.

[ScarletPimpernel]

.....and Lyndsey is a very astute and capable employee?

 

For whom every day must be like 01 April...

[jysmystry]

indeed, and fear not, i will be paying them nothing yet, just my (bad) attempt at an april fools prank. That particular OE employee wont be able to do anything for a while in anycase as no as no doubt she is still too stunned by the discovery of the flying penguins which BBC have reveiled.

 

 

POC gets sent on 10th April, detailed below (minus dates to protect my privacy) thanks to a minor adaption to the Data Protection Act POC in the template library. short and sweet.

 

 

I have one minor concern however, in that i suppose OE have the option for a counter claim for the amount they claim i owe them if i go down this road?

 

 

I'm not especially concerned about this as if their legal team are anything like their accountants I can't lose but does anyone know if they would have this option? I suppose i'd have to get the data under a part 18 request then so job done and it would bring it to a head and it would of course be extremely unhelpful to them in that they would rely on the data i have requested and they clearly had it to hand to rely on it in court so could only have been acting vexatiously.

 

 

PARTICULARS OF CLAIM

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act (Registration No. XX) and is responsible for the processing of data of which the Claimant is a Subject.

2. The Defendant had supplied contact lenses to the Claimant by an agreement which began on or around XX and ended on or around XX.

3. On 4th February 2008 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

 

4. The Defendant has failed to comply.

 

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage.

 

6. The damage caused is:

Extra costs incurred in addition to court costs (£30), due to the Defendants failure to comply - this includes the cost of additional correspondence (3 x £10) and time spent preparing documents and seeking legal advice, I estimate this cost to be £90

 

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

 

8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

 

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

 

Signed:

 

Date:

 

[name]

[2Grumpy]

Don't think they could counter claim -

 

"we didn't give theinformation that would sort this out because we don't believe he cancelled" - don't think it's a valid reason to not come up with the info

 

Good luck

 

Grumpy

[389shell]

Godmother, the date lol!

[The GodMother]

Godmother, the date lol!

 

I did not notice the date as i am 31 weeks pregnant and having sleeping problems. Anyway a lot of ppl say that and actually do send the money due to the company starting to were them down.

[389shell]

I did not notice the date as i am 31 weeks pregnant and having sleeping problems. Anyway a lot of ppl say that and actually do send the money due to the company starting to were them down.

 

My apologies if I offended.

[The GodMother]

you did not offend its just a lot of ppl dont notice things like dates due to not really looking or beening half asleep.

 

Also some ppl are serious when they post stuff saying the are going to pay them. U can never tell.

[Kyma]

I follow this sorry saga with interest. I feel E&OE might be more apt.

[Dustymunchkin]

Actually I 'went a bit Lyndsey' & didn't notice the date either. I just knew it was a wind-up.

 

But the penguins were brilliant! Chin on chest until the beach bit....when the light dawned.

[The GodMother]

never saw the penguins

Dont use a tv so would not have

[Dustymunchkin]

Hi Kyma, 'Fraid I had to look that one up but it was worth it. (Errors and Omissions Excepted)

Problem: If they left them out wouldn't we be left with a blank piece of paper?

 

Godmother: I haven't watched TV in years! Here you go..

YouTube - Flying Penguins on BBC Documentary

[jysmystry]

Coolio,

 

Claim issued as of 11:00am today in Plymouth County Court.

 

Wonder if this will be ignored like my last 2 letters. I do hope so

[The GodMother]

well if they do ignore u then u get a deafult judgement

[jysmystry]

indeed, and my £90 costs

 

The fun i will have if thats the case. It will not be a fair fight though, my "final Reminder" to them will be totally unlike the one they sent me as mine will have some kind of legal basis whereas theirs was inherantly flawed.

[Dustymunchkin]

Bless her! because I'd mislaid that letter.

 

 

Personally, I think it's vaguely logical to refuse to pay monthly direct debit on 24th April if last dispatch was 11th March.

The implication is they were only sending the lenses every 52 days so LBA it is.

 

An International company harrassing an ex-client for £29.99 4 years after the account is closed and acknowledged as paid in full. Not exactly credible is it?

 

Anyone know if that letter acknowledging payment in full has any legal standing?