Bean's Timeline (Barclaycard)

[Bean]

Hello All!

 

My wife sent Data Protection Act Subject Access Request letter for her Barclaycard today, will keep you posted,

[Bean]

13 July 2006 - Only statements dating back to May 2004 received in reply to DPA SAR.

 

Usual covering letter stating 'Statements that are prior to this date are not held on a computer system or structured relevant filing system as they are stored on a microfiche in date order and therefore, they do not fall under the Data Protection Act 1998. They can be obtained from our Customer Services Dept at a cost of £3 per statement...'

 

Will keep you posted,

[Bean]

19/7/2006 - Sent Preliminary Approach for Repayment letter for period May 2004 to present, approximately £300 claimed. Included a copy of the charges spreadsheet.

 

19/7/2006 - Sent a letter asking for the rest of the data (i.e. mid-2001 to present) - based on letter to Abbey by 'alanfromderby':

 

"TB, Customer Relationship Manager

Barclaycard

1234 Pavilion Drive

Northampton

NN4 7SG

 

 

Dear Ms. B

 

Re: Data Protection Act 1998 Subject Access Request

Account Number: xxxx-xxxx-xxxx-xxxx

I am in receipt of your letter dated , your ref. , outlining that you could only provide me with statements covering recent transactions on my account from , because any earlier information has been archived onto microfiche. I also acknowledge receipt of the information you forwarded, being statements from to .

 

It seems that you have mistakenly taken my request for data as a request for statements.

 

My request was for a complete list of transactions and charges relating to my account for the period of the whole of my account history; in short, a list of charges with dates and amounts. As you state in your letter that your charges were only introduced in mid-2001, I will accept a list of charges with dates and amounts for the whole of the period during which your charges have applied, presumably mid-2001 to present. Alternatively, should you so choose, a complete set of account statements for that period will be acceptable.

 

As you have stated that your Customer Services Department can provide statements at £3 per statement, the data should be retrievable from those or from your accounting systems, and easy for you to produce. I will accept a computer print out of these transactions. Clearly, by your own admission, the information is available but it seems that you wish to charge a premium for it by offering statements.

 

I am ready to bring this matter to the attention of the Information Commissioner should it prove necessary. I would also draw your attention to Smith v Lloyds TSB Bank plc (2005) EWHC 246 (Ch).

 

This letter has been sent by first class recorded delivery, and therefore should have reached you by . As you will be aware, as of this date you have just days (i.e. till ) in which to comply with my request. As stated above, a complete set of account statements for the period in question will be acceptable; however, I expect this to be provided within the time period for Data Protection Act compliance.

 

Should there be any further attempts to delay compliance, I will be left with no alternative but to commence a County Court action under section 7, and section 15(2) of the Data Protection Act 1998, and in due course, to escalate this matter into an official complaint to the Information Commissioner and the FSA.

Yours faithfully,"

[Bean]

Had a reply to the "microfiche" letter above, with my clarifying additions in the format "(Ed. xxx)":

 

"I write further to your letter of 19th July 2006. Your correspondence has been passed to me in order that I may investigate and respond in my capacity as Customer Relationship Manager.

 

Your reference to the case of Smith-v-Lloyds Bank PLC (2005) EWHC 246 (Ch) is puzzling in this regard as that case fully supports Barclaycard's position. In that case Mr. Smith made a subject access request to Lloyds. Lloyds did not disclose all the documents that it held as it took the position that a number of documents held loosely in boxes were not contained in a relevant filing system and therefore were not required to be produced. Mr Justice Laddie agreed with Lloyds and dismissed the court application of Mr Smith to have the documents produced. As with a box of documents the copy statements held by Barclaycard on microfiche are not held in a relevant filing system.

 

As explained previously copy statements held prior to May 2004 are stored on microfiche. The statements (Ed. were) copied onto the microfiche in date order and more than one customer statement may be held on an individual film of microfiche. These statements are not stored by reference to account number of (Ed. or) customer name and are not "readily accessible" within the meaning of the Data Protection Act. These statements are therefore not retained in a relevant filing system and therefore do not fall within the class of documents to be produced pursuant to a subject access request

 

With regard to your request that we provide a computer print out of transactions on your account to date we are unable to provide the information requested. Our computer systems do not permit us to print such historic data. Neither do our computer systems allow us to search for and identify individual charges applied to an account. It is therefore not possible to provide you with a print out of such charges. I would also add that Barclaycard did not introduce default charges on its accounts until mid-2001. The print out that has been provided to you contains the information that we currently have recorded relating to the charges on your account.

 

Accordingly we are unable to disclose any further statement documentation to you pursuant to your request under the Data Protection Act. As previously advised you may contact the Customer Services team for copy statements. There is a standard charge of £3 per copy statement.

 

I hope that this now clarifies the situation. 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 file in accordance with our usual practice.

 

Yours sincerely

 

CJ

Customer Relationship Manager"

 

Disagree, and will find another approach, but need to do more reading here to do that.

[Cpt Black]

So, does the Smith V Lloyds support us or them? When can we get to the case?

[Cpt Black]

right, link to the smith v lloyds page:

 

http://www.hmcourts-service.gov.uk/judgmentsfiles/j3127/smith-v-lloyds.htm

 

seek colaboration on this, but paragraph 14 states that

Even if the data controller has wiped all the hard discs clean some years ago and only retains hard copies of the documents in unstructured files, they still contain data within the meaning of the 1998 Act because, once processed always processed.

 

However, further reading seems to indicate that the judge disagreed with this - I'm not sure!

[Cpt Black]

i have elaborated here:

http://www.consumeractiongroup.co.uk/forum/general/19047-hope-might-help.html#post149395

[Bean]

Thanks Cpt Black, my apologies for not getting back here for a long time.

 

LBA posted today for the period May 2004 to present.

 

I'm tired of their tactics in relation to the microfiche argument - think I'll soon pay £3 per statement to move this forward with the rest of the charges.

[Bean]

N1 County Court claim form submitted to local County Court today. For May 2004 to present.

 

Claim for ~£368.

[Bean]

Received a letter on Saturday 16 September 2006, 24 days after our 14-day Letter Before Action arrived at their offices:

 

"Thank you for your recent letter, your details have been passed to me in order that I may respond in my capacity as Customer Services 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. (!!! The OFT did NOT recommend £12!!!). This would amount to £198.

 

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

Customer Relationship Manager"

 

So the County Court claim issued against them last week still stands. A letter declining their offer will be on it's way shortly.

[Bean]

The Defendant filed an Acknowledgement of Service on 18 September 2006...indicating an intention to defend all of the claim.

 

'Notice That a Defence Has Been Filed' dated 21 October 2006.

 

Allocation Questionnaire to be completed and returned on or before 7 November 2006.

[Bean]

It's not over yet...

 

Allocation Questionnaire was filed at court 7 November 2006.

 

The Defendant did not file an Allocation Questionnaire by 7 November 2006.

 

Received a "General Form of Judgment or Order" dated 13 December 2006 which read: "It is ordered that: 1. Unless the Defendant do file an allocation questionnaire with the court office within 7 days of service of this order, the claimant shall be at liberty to enter judgment."

 

As the Defendant did not file by 22 December 2006, a Judgment for Claimant (by Default) was obtained, dated 30 December 2006.

 

Phoned Barclays Litigation & Disputes in January 2007 to obtain payment and were told that the court had sent documents to the Barclaycard address, not the Barclays Litigation & Disputes address notified to them by the Defendant. So Barclays have offered settlement (see following) or they will seek that the Judgment be set aside.

 

Their correspondence reads:

 

"Your claim number: ********, * County Court

I am writing to you in connection with the default Judgment which has recently come to the attention of the bank’s Litigation team.

I believe that you had issued a claim via the * County Court and in the absence of an Allocation Questionnaire, secured a default Judgment on 30 December 2006 for £***.**.

As we did not file the Allocation Questionnaire within the prescribed time due to an administrative error on the part of the Court, we are entitled to make an application to Court for the default Judgment to be set aside. However, I am conscious of the time involved for all concerned, i.e. for you to attend a court hearing and the cost of pursuing the matter further. I therefore, propose to offer to settle your claim in full. However, I would be obliged if you will agree to:-

1. The sum of £***.** is paid by us in full and final settlement of your claim entitled ********;
   
2. There be a voluntary Stay of Execution pending payment;
   
3. That upon receiving payment you write to the Court stating that you have withdrawn your claim pursuant to a settlement between the Parties;
   
4. That you consent to the default Judgment being set aside;

The sum of ***.** will be credited direct to your Barclaycard account;

I trust that you understand that we have reached this agreement to avoid the time involved in making an application to the Court to have the Judgment set aside. It, therefore, does not imply any acceptance of liability on the part of the bank.

I enclose a draft Consent Order setting aside the Default Judgment. Please sign and return this to me and I will arrange for it to be filed at Court after your account has been credited.

Please also sign the enclosed copy of this letter confirming your agreement and return it to me at the above address. Once I have received these documents from you, I will arrange for the funds to be re-credited to your account.

I look forward to hearing from you.

Yours sincerely,

**

Legal Clerk

Signed…………………

Dated…………….2007"

 

The attached Consent Order reads:

 

"BY CONSENT

IT IS ORDERED:

1. The default judgment entered 30 December 2006 be set aside forthwith;
   
2. There be no order as to costs."

It seems the administrative error by the court should be of little or no consequence, particularly as they knew the claim programme, and Barclaycard had the original AQ correspondence and a reminder yet Barclays Litigation and Disputes failed to respond to either, but the Defendant is saying it would allow the Judgment to be set aside. Just need to look into this a bit more before responding.

[Bean]

Sum received in the account.

 

Consent Order signed to set aside the default Judgement. Not signing it would have involved more court time in assessing their administative error and probably then striking out our Judgement for Claimant (in default) on that basis anyway.

 

Court notified that this claim has been settled.

[Bean]

Round 2 (for earlier charges that came to light when microfiche information was finally provided): Hearing on 7 September 2007.

 

Contrary to Court Directions, the Defendant has failed to serve any documents. Do you agree that I should now file an Application Notice N244 to strike out their defence on the following basis:

1. The Defendant's failure to comply with Directions by not providing any documents is against the overriding objective, namely Civil Procedure Rules, Rule "1.1 (2) Dealing with a case justly includes, so far as practicable - (a) ensuring that the parties are on an equal footing". As a litigant in person taking action against a huge corporate institution, I have provided documents but have not received the Defendant's documents and therefore consider myself to be at considerable disadvantage.

2. Also, Civil Procedure Rules, Rule "1.3 The parties are required to help the court to further the overriding objective".

 

Further, I have a digital recording of a member of Barclays Legal department stating that they would not be contacting me regarding settlement till nearer the date of the hearing. I believe that the Defence is a sham defence, that the Defendant does not intend, nor has it ever intended, to permit the claim to run it's course to a hearing. Based on this last point, should I include on the application, an application for summary judgment?

 

Any help or comments gratefully received...

[Bean]

Settlement offer received by email 31 August 2007 from Barclays Litigation & Disputes, to pay the whole of the claim sum in full and final settlement.

[Paintball]

Well done Bean. I hope you don't have to wait long for the cheque.

[Bean]

Thanks Paintball,

 

The hearing is scheduled for Friday morning so either the £475 shows up as a payment to the account or the hearing goes ahead - their call .

 

This started around fourteen months ago with a Data Protection Act request dated 7 July 2006 and we have acted promptly at every stage, all delays being down to the Defendant, Barclays ...it's high time they coughed up.

[sea-sidelady]

That is great, Hopefully you will have it in your hands before then.

[Paintball]

A vexatious Litigant ... wasted costs order?

[Bean]

Thanks sea-sidelady, I'll keep you posted...

 

A vexatious Litigant ... wasted costs order?

 

My thoughts exactly Paintball, but I considered that I would not seek a wasted costs order as the settlement sum includes contractual interest and 8% interest and I was reasonably happy with that.

 

However, if I do want to seek a wasted costs order, how do I go about it? When do I submit it, and do I have to notify the Defendant that I am doing so? I have sent back the signed full and final settlement letter with four of my amendments added. How would a wasted costs order relate to the return of that letter if I choose to seek the order?

[Bean]

Barclaycard credited the claim sum to the account and it was confirmed at about 16:30 on 6 September 2007.

 

The hearing had been scheduled for 11am on 7 September 2007 so I contacted the court to state settlement reached, no further action necessary.

 

I sought an order for wasted costs, supporting it with a spreadsheet breakdown but the Deputy District Judge refused it. Even though I had amended the settlement letter, rendering the original inappropriate, it appears Barclays used either the original or the amended version to argue their position re costs.