Jysmystry v Optical Express

[The GodMother]

I am not expert but i think it does.

 

It is not YOUR problem if they make a mistake and only find it 4 years later.

 

I personally dont think that you can be held responsible for there mistake especially this far down the line.

[jysmystry]

yeah totally. I mean, 4 years!!! They should scrap it for sure.

 

Deffo go for DPA complience. The damages you'll get will be well in excess of the £30. If they have any brains what so ever they will wipe their stupid debt rather then end up owning you money. Just get your claim in before they complie with your DPA request, not that they will, but just in case someone in OE has half a brain and figures it out. They might figure it out you see as some kind soul already has them in court for it hehe

[The GodMother]

OH and when the debt recovery department contact u u can just tell them that the case is in dispute and subject to court procedings brought about buy yourself

 

As a result they are not allowed to claim any money as thet would be illegal and you will be bringing this to the courts attention.

[eileen58]

Hi,What a great thread. I am at present dealing with scottish power about non-compliance of a sar. I didn't realise that you can take them to court for non-compliance, so I will now do this.Until today I thought that these particular penguins could fly. My defense is that I only saw some of the video. I really must get out more.But thanks for giving me a good laugh.Eileen

[The GodMother]

Eileen

 

U will need to file form N1 with your local COUNTY court for this.

 

There is no real monetary value but u will have to pay a fee, unless you are exempt u will need form ex160 for this.

 

look at this website for more info.

 

Her Majesty's Courts Service - Home

 

I would also advise u start your own thread, there is a electric water and gas section give me a shout in you need anything.

[jysmystry]

Well letter from the court over the weekend.

 

Claim was deemed served on Optical Express on 19th April. They have until 5th May to respond.

 

tick tock

[Dustymunchkin]

Sorry - been really busy. World full of incompetents. After dark last Sunday, council put bollards along the lane I live and park in. (A scaffolder wanted to put up scaffolding on one of the houses) Unaware of this, I went out to my car on Monday at 1pm to find FPN for 'willfully (sic) obstructing the highway' & tow truck on way. Ignoring the fact that I think there might be some rules attached to notifying tenants, my house was beyond the house that was being scaffolded and my car was not affecting access in any way.

Pretty cut and dried innocent I'd say, but on front of FPN is a note: MITIGATION WILL NOT BE CONSIDERED AND CORRESPONDENCE NOT ENTERED INTO.

 

It gets better...On Tuesday I got a speeding notice (intended prosecution) 39mph in a 30mph zone. Now this HAS to be a joke. I'm a seriously careful driver. I checked everything. I was driving on that day and on that road. (OK I could accept the 3 hr course for £60 and avoid the points) but I know I wasn't even doing 30. It was a handheld laser so do I really want to go to court and dispute the evidence of a policeman with no evidence of my own?

I do now. I did some maths. The van was situated about 250 feet beyond a traffic light that I stopped at.

When my car was new (5 yrs ago) it was capable of 0-39mph in 206 feet. The handheld lasers are to be operated at a minimum distance of 50ft.

The internet is a very wonderful thing sometimes.

How could they get it so wrong? I dont know. I do know they have to fix on a flat area of the car & and I do have a PT cruiser with a chrome grille that might make that difficult.

 

So, Optical Express would have been my first court experience and out of the blue I've suddenly got 2 more without doing anything wrong.

 

Anyway Very late: Letter going out tomorrow.

 

Dear Sirs,

 

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

I closed my account in late March or early April 2004. I received a letter from yourselves saying that my account was closed and fully paid up.

Nearly 4 years later on 7th October 2007. I received a letter claiming I owed £29.99. I rang and was told to ignore it. It was a mistake. The employee went away and came back to say it wasn’t a mistake. I asked for a full breakdown of my account. I was sent this.

 

Inadequate and inaccurate as I only ever received 30 lenses per delivery. Value: £29.99. Like me, you’re probably assuming Jan-March =£89.97.

(If it helps at all, my final payment went out on 18 March 2004)

So what does the next bit say? Read it again. Any clues?

 

I continued to press for further explanation via letter but only received sloppy responses along the lines of because you didn’t pay in April & May 2004. (Of course I didn’t. You didn’t send me lenses in April 2004) These were interspersed with threats of court action (in breach of OFT guidelines)

Although most of the replies I received were cut and pasted from previous replies, I did receive a further breakdown of the payments (accompanied by an amusing summary that claimed I owed £29.99 on page one & 59.98 on page two)

It would appear on the basis of this summary that although I was paying by direct debit on a monthly basis for 30 lenses, Lenses were only being dispatched every 52 days suggesting that, in fact, you owe me around £300 in un-supplied goods. I queried this but as usual got a cut & paste response along with a claim that I did owe £59.98 & that the system was incorrectly showing £29.99.

 

Incidentally the lenses I used ONLY come in boxes of 30 so even in some ridiculous parallel universe where 30 lenses covered 52 days at a cost of £51.1143pence a box, I still wouldn’t owe for 30 days, I’d owe for 22 days. (£21.2143p)

 

Nearly five months and twenty letters later, it seemed to me the only way I could sort this out was to view the data myself so I submitted to your company a properly formatted subject access request on 23rd February 2008 and which was deemed served on 27th February 2008. I requested to be notified of the fee & was ignored. You are allowed, by statute, 40 days to comply with this request. There is clear legislation on compliance and I have pointed this out on several occasions.

 

Aside from harassing me, threatening me with unfounded legal action, ignoring my complaints and defying OFT debt collection guidance, you have now breached 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 ordering you to comply with section 7 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 not only my reasonable costs incurred in doing so but also the overpayment with interest.

Until I see the data I will be basing this claim on the written evidence of your staff.

 

I will also be contacting The Information Commissioner as I believe his office will offer you assistance in improving your organisation and ensuring that your staff receive training in the civil & legal aspects of customer service.

 

I suggest you take the time to read some of the letters being sent out by your accounts dept.

 

Yours faithfully

Me

[ScarletPimpernel]

on front of FPN is a note: MITIGATION WILL NOT BE CONSIDERED AND CORRESPONDENCE NOT ENTERED INTO.

 

So where you live, the local authority believes that the right to a fair trial, as embodied in the Human Rights Act, doesn't apply.

[The GodMother]

Looks like it SP.

[Dustymunchkin]

Ah. Don't know why, but this is the Police not the Council and I should have pointed out I do have a choice. Fine or court. Kind of limited when even Mr 'ker-ching!' tow truck man came back and left again without me moving the car.

(Scaffolding was 80% in place by then and I'd made everyone a cuppa)

 

'The Fixed Penalty Processing Centre is not in a position to consider any mitigation you may have to offer. The only way to appeal against the issue of a Non Endorsable Notice is to Request a Court Hearing'

So...not a local law, a national one. Might have come in on April 1st (How apt!) and Police defence is that they can't enter into communication because.......the offer of a fine is conditional and therefore the case is 'Sub Judice'

However on the endorsable - speeding offence- they are prepared to supply some information which somewhat defeats their argument and after visiting a few sites, it would appear that a significant number of speeding charges vanish when contested.

 

In conjunction with the fact that I know I wasn't speeding, I'd hypothesise that they know the system is fallible and are understandably keen to avoid having this exposed in a court.

Think about it. Most innocents will attend the course. £60 no points. The alternative is a hefty solicitors bill and limited access to the police evidence so only those facing a ban under the totting up procedure are likely to go down this route.

If the police have any doubts, a 6 month delay in setting the court date & the case can no longer be brought.

 

So while, as a victim, I'm really really annoyed, as someone who is actively anti-speeding, I can see that this would undoubtedly save many lives.

Does the end justify the means?

 

Sorry! just a hypothesis and not exactly relevant to this thread.

[Dustymunchkin]

I know it was me that said it wasn't relevant to thread but I have to share this bit of guidance for Police Officers using handheld laser speed guns.

 

Never point a laser speedmeter at a civil or military aircraft, vessel or armoured vehicle. Many military aircraft, vehicles or vessels have target acquisition detectors, some of which can initiate automatic counter measures.

[The GodMother]

Now theres a thought.

[jysmystry]

oooh, so exciting this morning to see i had a letter from OE. Is this there defence to my claim?

 

All it was was this though! Hilarious! I'm a valued customer hahah

 

I filed me request for judgement by default yesterday, should get the Order in a few days

 

[The GodMother]

yep i defently think it is there defence. As a valued customer i think u should drop the case.

 

 

 

 

 

 

 

 

Maybe not.

[Dustymunchkin]

The place is crawling with wannabe comedians.

I'm pretty sure Reason 10 gives you another 'charge' under the trade descriptions act.

[ScarletPimpernel]

I know it was me that said it wasn't relevant to thread but I have to share this bit of guidance for Police Officers using handheld laser speed guns.

 

Never point a laser speedmeter at a civil or military aircraft, vessel or armoured vehicle. Many military aircraft, vehicles or vessels have target acquisition detectors, some of which can initiate automatic counter measures.

 

Just to go even more off topic...

 

There is an story that does the rounds occasionally about a police officer who 'clocks' a Tornado low-flying, and returns to his HQ to be told that the aircraft's weapons system had acquired a lock-on to his handheld radar.

 

It is, sadly, an urban myth. Aircraft systems identify targets as hostile when the radar illuminates; all the various systems have an identifiable signature. In any case, such systems would not be armed whilst in transit over UK airspace. though I expect the Americans, who always do the right thing after they have tried everything else, have probably done it by mistake.

 

I suspect that the originator of the tale is thinking of CIWS (Close In Weapon Systems) such as Phalanx or Goalkeeper, used by the RN to counter attack from missiles such as Exocet, and aircraft.

 

A vehicle-borne version is an interesting concept, not least because these things fire about 4000 rounds per minute, though I suspect mounting it on a car might prove troublesome...

[Dustymunchkin]

Ye Gads Sir. Are you casting aspersions on the advice of our top policemen?

 

My source was the ACPO Code of practice for operational use of enforcement equipment (Association of Chief Police Officers)

 

Raises the question: Do they have more or less intelligence than us mere mortals?

 

although....in a similar document, When giving the range of excess speeds to which different penalties apply, (following a whole page dedicated to

Implications of the Freedom of Information Act 2000 and 'sensitive' information)

the lower speed limit in each speed zone is replaced by ** .

 

On page 13 under discussion of speedtrap sites, we read:

.....speed at or above ACPO level (10% + 2mph eg 35mph in a 30mph speed limit)

 

perhaps that answers the question.8)

[jysmystry]

Well well well,

 

cheque for the £90 arrived this morning with a blank compliments slip. Wierd as they ignored all my letters, ignored the service of notice, ignored the opportunity to enter a defense but someone acted on the courts order so it seems there is at least 1 brain cell in the company.

 

Was rather quick as well, I live in devon (where the court is) and they are based in scotland but they got the order and sent me a cheque before i even got a copy of the order myself. amasing.

 

Plan of action now is to see what they do. They have paid but the order would have required the release of the data. Lets see if they do. If they don't and start to chase me again ill send a copy of the order to the FOC and request they enforce compliance then take up my dispute ofver the amount. If they do nothing i do nothing so lets see where it goes.

 

I hope out of all this they learn about the importance of keeping peoples data safe and organised. this is not so relveant but those of us who have had our data lost and used for credit card fraud do not like sloppy data controllers any more!

 

anyway, another win for me so i'm happy now.

 

Dusty, over to you my friend

[Dustymunchkin]

Wow! I'm impressed. I sent my letter addressed to the Company Secretary on 25th April. (Court on Tues?) but you'll never guess who the Company Secretary is! (or at least who replied) YAY! It's our Lyndsay. So reply not connected in any way, shape or form to letter sent. More a written version of sticking your fingers in your ears and going La La La.

 

They're going to an awful lot of trouble to avoid any mention of the word 'data' aren't they?

 

I think everyone out there who uses Optical Express should submit an S.A.R - (Subject Access Request) just to see what happens...

 

No reason why not. You'll get paid for every letter you write.

 

No more 'correspondences' .....

 

 

 

Edited May 10, 2008 by Dustymunchkin
?

[The GodMother]

Bloody hell that is the biggest avoidance of letter i have ever seen.

 

They have even missed of you letter dated the 25th April.

 

I woulld advise if you have not done so to make them disclose the info by taking court action.

 

That way if they dont disclose then they will have to pay you compo and you can tell any DCA that the case is currently subject to court action and should not have been passed to them.

[jysmystry]

yeah,

 

I was sent all they blah blah but sp soon as you push em they go "head in sand" and start ignoring you. They are WELL over their 40 days no so its un-defensible and you can get a court order no probs.

 

Im amased you haven't already done so and any concerns you would have had would have gone *poof* having seen my results.

 

Just force them matey and see what the real situation is. I suspect they think you cant see to read their letters without their lenses any more hehe

[The GodMother]

no he has now gone to spec savers

 

Just take court action.

 

All forms can be got from here Her Majesty's Courts Service - Home

[Dustymunchkin]

After a late night attempt to file it online last night. Apparently Glasgow isn't in England? (Just joking! I'm married to a glaswegian)

Anyway aborted. Downloaded NI today and will pop it in post tomorrow.

 

I'm also going to file a complaint with the ICO. Think you should too Jysmystry because..... as of Friday 9th May:

 

The Criminal Justice and Immigration Act has received Royal Assent creating tough new sanctions for the privacy watchdog, the Information Commissioner’s Office (ICO). This new legislation gives the ICO the power to impose substantial fines on organisations that deliberately or recklessly commit serious breaches of the Data Protection Act.

 

and...finally, I'm not a he. Dustymunchkin isn't a very macho sounding name is it?

 

[jysmystry]

ah yeah, the company (Matland LTD) who own optical express are based in caumberbnaul arn't they.

 

This means that to file the claim in an english county court you need the permission of the court. What that basically translates to is that you need to put the following at the top of your POC, just download the standard N1 claim form and put that at the top. Alternativly go to your local court and get the 3 copies (tell them there are two defendants and they'll give you extra copies of the form too and tell you if they have a different form of words.

 

We certify that the Courts of England and Wales have power under the Civil Jurisdiction and Judgements Act 1982 to hear and determine this claim and that no proceedings are pending between the parties in Scotland, Northern Ireland or another Convention territory of any contracting state as defined by section 1(3) of the said Act.

 

The full addy you need to serve on is:

 

Optical Express Group

(Matland LTD)

Head Office

5 Deerdykes Road

Westfield Industrial Estate

Cumbernauld

Glasgow

G68 9HF

 

If it helps here is my POC which worked wonders..

 

 

Details of Claim:

 

This a claim brought on the basis of the failure of Optical Express to comply with a properly formatted Subject Access Request made pursuant to Section 7 of the Data Protection Act 1998.

 

The remedy sought is for an Order from the Court obliging Optical Express to comply with that request.

 

 

Particulars of Claim

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act (Registration No. Z8248854) 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 19/09/2005 and ended on or around 25/5/2007.

 

3. On 01/02/2008 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, due to the Defendants failure to comply - this includes the cost of additional correspondence, time spent preparing documents, private research 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.

 

That extract you psoted is interesting. Maybe this is a desire to grow some balls! The whole "we will work with them to improve their proceedures" thing put me off, i want fast hard action forcing them to comply within timescales or facing fines etc. I might go along these lines with you. Might i suggest we submit our complaints together to help show how lax they are? If you think thats a good idea get your claim in and once its settled we'll go to the FOC and insist they take enforcement action. That should get their stall in order.

 

Oh, this is hilarious btw, i have an appointment at specsavers tomorrow, im going to get contact lenses with them, guess where im getting the money from to pay for my first 3 months advance payment hahahaha

[jysmystry]

I got aletter from the Court today, short and sweet...

 

Dear Mr Jysmystry

 

Case no. blah blah Mr Jysmystry v Optical Express

 

The District Judge requires a draft Order for his approval

 

Kind Regards

 

So I'm taking this as meaning they don't really understand what I want. Seems odd and dissapointing that the courts, who afterall have a key enforcing role, have no real idea of the responsibilities placed on a data controller under the Data Protection Act. Especially as what I wanted the Order to say was pretty much spelt out on my Particulars of claim.

 

I'll send them a draft Order to the same effect. This is interesting however as Optical express must have sent me the £90 payment in response to the issueing of my claim, not as a result of default judgement against them. This means they read it which means they can read!

 

I'll include the requirement to send me my costs which they have already payed of course and that part will be instantly discharged but they will still need to send me the data to comply with the Order.

 

This should have been so easy yet they make it so hard by restisting at every turn. They could so easily have jsut sent me the data in the first place and they might have been payed by now!

 

Oh well, I get my new contact lenses next week, only £15 a month (thats half price over optical express) and they will give me my first months free to see if i like them before i sign up. I love that fact that OE are paying for my first 6 months woth of lenses with spec-savers