Barclaycard Microfiche Gumph

[hagenuk]

Not too sure about that, its not very clear at the end, if they have ruled in the favour of the 'Temp Test'. If they have ruled this, then it is worth a try, but that does not seem the case, it seems that you need to check TICO's website to see if the law has changed (it might have?)

 

Good luck though.

 

Not sure I understand your point. It seems clear to me that if Barclaycard can produce them for £3 each then clearly they fall under the definition of 'relevant filing system'

[:Boy:]

(To hagenuk) and I totally agree with you, that if they can produce the documents as I said in my previous post, why can't they produce them now.

 

They are using the microfiche statement as I believe they think that it is not a structured filing system as there are more than one persons account on a microfiche and that it is not in date order (which is cr*p). The documents would be microfiche, but this information would also be on a computer system, it has to be by law, for I think, at least 5 years (wife works in finance, and she says that it is a load of B*****ks, that they can not just print off the information, she says it is there at a touch of a button - which I believe)

 

Best regards

[rogerebaker]

I too am claiming from BC and have issued a claim on line.

 

I researched the microfische issue at great length and Im sorry to say that if the facts are as Barclaycard state then the chances are that it is not a relevant filling system.

 

It doesnt matter that they can produce them for a couple of quid what matters is that if they are stored in account / date order on microfishe then they probably fall outside the Data protection Act.

 

Its worth bearing in mind the reason the DPA was brought in some years ago. It was to protect the privacy of personal information held on computers. This was extended to include manual information provided that the personal data was easily identifiable and did not have to be searched for. If the account ifno on microfishe is in date order as they claim then it will almost certainly not be disclosable.

 

Im no expert but have spent some time researching this. I decided that the best way was to start with the info i had and when Ive been paid out for post May 2004 I would pay for the previous statements and add the cost to the next claim.

 

If you look at the survey BC have only paid out 4000 quid so far and they are the biggest Card issuer in the country. Their Microfische argument is working a treat. We need to move on from the Microfishe issue and start issuing claims. It will only cost them more in the long run with everyone claiming twice and two lots of court fees.

 

Just my opinion

[007coot]

If you look at the survey BC have only paid out 4000 quid so far and they are the biggest Card issuer in the country. Their Microfische argument is working a treat. We need to move on from the Microfishe issue and start issuing claims. It will only cost them more in the long run with everyone claiming twice and two lots of court fees.

 

Just my opinion

 

Here, here! I totally agree. I'm not wasting time arguing about microfiche, I'm just going to get on with it, I intend to estimate the charges and it's upto them to provide info to prove otherwise because it will definately be an over estimate but if it is an under estimate then will claim again. they can close the account, I have a nil balance anyway!!!! ha ha ha

[viktoriaujj]

So you guys are all estimating and claiming after the 2nd letter they sending back refusing to send the list of charges?

[:Boy:]

I agree with you, but the argument still stands that if you pay £3 to get a statement pre May 2004, how is this done? I find it extremley hard to believe that they have to go into the archives via microfiche. It would be there on a computer system, it has to be, it must be the Law that they have this readily available, even their Fraud team would have this info on a system of some sort.. We are taking about a huge multi million pound company that does not store sensitive information correctly....please!

 

I think the best way to test this is if someone who has a current Barclaycard phones them up. States to the agent that they purchased an Expensive Fridge Freezer (or something on that line) back in January 2004, it cost over £1000 and has now broke. Then state that they cannot find the reciept but they believed that they paid for it on their Barclaycard, but as they cannot find the statement for that month and that the company requires proof that they bought it from that shop. Barclaycard can then look on there system. If the agent can then confirm, that NO there was not a purchase made on that month with a Barclaycard and hopefully give a little bit more info like, 'you paid for your shopping at Tesco on the 19th January etc etc, this then proves that the information is still on their system and not nesscecarrily on Microfiche, and that they would be able to print that off.

 

Just an idea.

 

Best regards

[rogerebaker]

Its worth a go.

 

I cant believe that Barclaycard with all their resources and legal backup would make a basic error around microfische and DPA. Possibly at the start of all this but as time has gone on they have probably re examined it and feel fairly comfortable with their position.

 

Regrads claims. If I issue an estimated claim against someone then surely as the complainant it is for me to prove that the claim is correct, not for the defendant to prove it is wrong.

 

EG I could put in a claim for 20,000 GBP against Barclaycard. Just because they refuse to produce statements wouldnt make them guilty. If You bring the Claim, you have to prove it, on the balance of probabilities.

 

Thats why I wasnt comfortable with estimates.

[:Boy:]

You are right, but they have to defend the claim, prove to the court that the Claimant is wrong with evidence. The Claimant is the person who has filed at Court for a fixed amount, and trying to recieve that sum.

 

It does go down to the quantum of proof at court. The judge will look at the evidence that is in front of him. The claimant has stated that he is owed £10,000 by the bank, this is an estimate as the Bank have not followed the DPA, which is an offence if you do not follow it. The Bank then defends and says that it is actually £1000 owed, not £10,000. The Bank has admitted and proven that the figures were wrong and shown evidence; Bank statements. It is now against Common Law to charge such high amounts, the judge finds in the Claimants interest.

 

I think I am right, I don't know, someone will correct this??

[tamadus]

The whole point of an estimated claim is to include in the claim that it is estimated owing to the defendants failure to comply with the DPA. The claim should also state that full disclosure is requested.

 

If Barclaycard want to dispute the amount in court they then have to make full disclosure of evidence they are relying on and they have to produce their evidence 14 days before the hearing, otherwise it is inadmissible and will be thrown out of court. Of course once you have the statements they intend relying on you can alter the amount claimed. Also the non compliance has been proved as they are suddenly able to produce the documents.

 

I suspect they store the micro fiches in the dame way thet Abbey do. Namely in boxes with a date and from/to account numbers. In the boxes the fiches are stored once again in account number order, with several accounts on one sheet. Any competent operator can find the right box flick through for the right sheet and locate the particular statement in seconds. Thats why it only costs £3 per statement and they make a profit on that charge. YOUR name appears on each statement and the data in that statement is personal data to you and you alone. That makes microfiche a relevant filing system under both Durrant and Smith

 

The microfiche charade holds no water whatsoever and the information controllers office is already investigating both Abbey and Barclays/Barclaycard. I suggest you all make a formal complaint to the ico just to push them further you can download the complaint form at www.ico.gov.uk

[007coot]

The whole point of an estimated claim is to include in the claim that it is estimated owing to the defendants failure to comply with the Data Protection Act. The claim should also state that full disclosure is requested.

 

If Barclaycard want to dispute the amount in court they then have to make full disclosure of evidence they are relying on and they have to produce their evidence 14 days before the hearing, otherwise it is inadmissible and will be thrown out of court. Of course once you have the statements they intend relying on you can alter the amount claimed. Also the non compliance has been proved as they are suddenly able to produce the documents.

 

I suspect they store the micro fiches in the dame way thet Abbey do. Namely in boxes with a date and from/to account numbers. In the boxes the fiches are stored once again in account number order, with several accounts on one sheet. Any competent operator can find the right box flick through for the right sheet and locate the particular statement in seconds. Thats why it only costs £3 per statement and they make a profit on that charge. YOUR name appears on each statement and the data in that statement is personal data to you and you alone. That makes microfiche a relevant filing system under both Durrant and Smith

 

The microfiche charade holds no water whatsoever and the information controllers office is already investigating both Abbey and Barclays/Barclaycard. I suggest you all make a formal complaint to the Information Commissioners Office just to push them further you can download the complaint form at www.ico.gov.uk

 

This is great stuff. Thanks

[prushton]

Hi, I think you are all getting too mixed up in the microfiche argument when all you have to do is write to the bank aand tell them that you understand that your records may / are stored on microfiche and could they supply the information requested and that you have enclosed £10 to cover the costs of recovering the information. You understand that they have provided this service for other people and hope that £10 is sufficient to cover their costs. You will find that they will provide the information. This is a far better way to approach this than trying to get them to supply it under the data protection act as microfiche systems are not deemed to be relevent filing systems under this act . I hope this helps you all .

[hagenuk]

Hi, I think you are all getting too mixed up in the microfiche argument when all you have to do is write to the bank aand tell them that you understand that your records may / are stored on microfiche and could they supply the information requested and that you have enclosed £10 to cover the costs of recovering the information. You understand that they have provided this service for other people and hope that £10 is sufficient to cover their costs. You will find that they will provide the information. This is a far better way to approach this than trying to get them to supply it under the data protection act as microfiche systems are not deemed to be relevent filing systems under this act . I hope this helps you all .

 

The point of this is that they are not providing the information - at least Barclaycard are not in my case.

 

I have written to them and they have refused to provide any information (twice now) prior to May 2004 because it is archived on Microfiche.

 

How else do you suggest we progress?

[barracad]

The problem is if you accept that they are not providing it under the DPA then they don't have to provide it within 40 days they can take as long as they want.

 

Also I would be interested in how you came to understand that microfiche isn't classed as a relevant filing system under the DPA as that certianly isn't my understanding.

[tamadus]

I suspect your the one getting confused. £10 is the standard DPA SAR fee so unless you making a SAR why send them £10 ? Barclays have already clearly stipulated that data ie statements over 2 years old are going to cost £3 per statement so £10 is only going to cover 3 statements not 4 years worth.

 

Secondly Barclays are denying having supplied the data to other people.

 

The only approach is under the data protection act and in Barclays viewpoint for you to pay for the other 4 years of statements a cost averaging £144.

 

Where do you get the idea that microfiche is not a relevent filing system ? The ico have already stated that their current opinion is that microfiche is a relevent filing system under the act, something that was pretty much confirmed in both the Durrant v FSA and Smith v MCU cases, although both those cases were more concerned with HOW the data was processed.

 

This is only a stalling tactic used by Abbey and Barclays so they can limit the amount they have to compensate customers. The ico has already received numerous complaints about both and are investigating. Abbey have already had 1 visit and I understand are getting another visit on September 12.

 

The ico has recently issued an enforcement notice on the website B4Usearch for breeches of the act and they will do the same with Abbey and Barclays when they finish their investigations. Obviously they will take stronger measures if more people register complaints. In the case of B4usearch they had over 2000 complaints. With 57,000 members I am sure this site can register a lot more complaints against Barclays.

 

Message to Barclays if your viewing this thread. Your now past your 40 days and court action is being started without further notice for failing to comply with the DPA. A seperate (estimated) claim is also on its way. See you in court:)

[Cpt Black]

Hear, hear Tamadus - good luck!

 

As far as I'm aware the Durant Case does support our mission but from my understanding of the Smith Case (having read the transcript) it doesn't so be careful there.

 

However it is just a stalling tactic!!

 

Cpt Black

[rogerebaker]

You are right, but they have to defend the claim, prove to the court that the Claimant is wrong with evidence. The Claimant is the person who has filed at Court for a fixed amount, and trying to recieve that sum.

 

It does go down to the quantum of proof at court. The judge will look at the evidence that is in front of him. The claimant has stated that he is owed £10,000 by the bank, this is an estimate as the Bank have not followed the Data Protection Act, which is an offence if you do not follow it. The Bank then defends and says that it is actually £1000 owed, not £10,000. The Bank has admitted and proven that the figures were wrong and shown evidence; Bank statements. It is now against Common Law to charge such high amounts, the judge finds in the Claimants interest.

 

I think I am right, I don't know, someone will correct this??

 

The onus of proof even in a civil court is on the accuser. If you claim someone owes you money then you have to produce some evidence to support your claim. ie. dates of charges, reason for charges etc etc. or it will not succeed. Im not sure the argument that the bank would not provide you with the evidence to support your claim would stand up. Im sure Ive read that one of the reasons amongst others that an organisation can decline to provide you with information under the DPA is if it is likely to be used against them at court.

 

The IC visit to the Abbey should be the start of the end of this argument and then we can really get stuck into Barclaycard..

[tamadus]

Hear, hear Tamadus - good luck!

 

As far as I'm aware the Durant Case does support our mission but from my understanding of the Smith Case (having read the transcript) it doesn't so be careful there.

 

However it is just a stalling tactic!!

 

Cpt Black

 

In both cases the circumstances are different to ours. Durrant hinged his case on paper documents that only briefly mentioned him and had no other relevence. Smith was more about the after effect of a review he authorised and again his claim seemed to rest on non relevant documents to prove his point. In our case those fiche contain data which can be accessed and carries both our names and account numbers. That makes it very relevent and immediately brings it under s7 of the DPA. imho of course

[tamadus]

The onus of proof even in a civil court is on the accuser. If you claim someone owes you money then you have to produce some evidence to support your claim. ie. dates of charges, reason for charges etc etc. or it will not succeed. Im not sure the argument that the bank would not provide you with the evidence to support your claim would stand up. Im sure Ive read that one of the reasons amongst others that an organisation can decline to provide you with information under the Data Protection Act is if it is likely to be used against them at court.

 

The Information Commissioner visit to the Abbey should be the start of the end of this argument and then we can really get stuck into Barclaycard..

 

Actually in a small claims court its not a matter of proof but of convincing the judge that your argument is better than theirs. Also if they rely on those statements as proof your claim is unfounded then full disclosure means they have to produce them at least 2 weeks before the court date to all parties. That futher validates their non conformity to the DPA which is all part of the reason for an estimated claim. I suppose the best way is to make a claim in 2 parts one using known data and the other half estimated based on the known data. That way the judge can see you have made the attempt to be reasonable

 

 

The DPA doesnt give any scope for refusing data on the grounds it may be used as evidence against a party holding that data. in fact its very clear that your data belongs to YOU not the party holding it. In fact I suspect that using that as a reason for deying data would be an offence under the human rights act, as it basically means you are being denied access to personal data which could be used against you in a court

[:Boy:]

When you open a Bank account, you and the bank agree to follow UK Law, and the bank agrees to supply you with the data it holds on you. Lets remember banks are holding your money, you are not holding on their money (Obviously unless you have a borrowing arrangement).

 

You may be the customer but without money coming into a bank, how long would they last just lending (probably a stupid example, but you get my drift).

 

If and when I go to a small claims court, the burden of proof is on the Bank. I have asked for MY data, they have not supplied (which they agreed to supply in the terms and conditions of opening a bank account), I have estimated the amount, as the bank will not supply information that I require under DPA/CCA, which is an offence not to supply.

 

So why is the onus on me? I have done nothing wrong, I have followed the rules as such, the bank has not.

[rogerebaker]

Actually in a small claims court its not a matter of proof but of convincing the judge that your argument is better than theirs. Also if they rely on those statements as proof your claim is unfounded then full disclosure means they have to produce them at least 2 weeks before the court date to all parties. That futher validates their non conformity to the Data Protection Act which is all part of the reason for an estimated claim. I suppose the best way is to make a claim in 2 parts one using known data and the other half estimated based on the known data. That way the judge can see you have made the attempt to be reasonable

 

 

The DPA doesnt give any scope for refusing data on the grounds it may be used as evidence against a party holding that data. in fact its very clear that your data belongs to YOU not the party holding it. In fact I suspect that using that as a reason for deying data would be an offence under the human rights act, as it basically means you are being denied access to personal data which could be used against you in a court

 

 

Legal Burden of Proof - Civil Cases

[rogerebaker]

Legal Burden of Proof - Civil Cases

 

 

Legal Burden of Proof - Civil Cases

[rogerebaker]

Legal Burden of Proof - Civil Cases

 

 

I tried to cut and paste a reference re burden of proof in civil cases but it dosnt seem to want to do it

 

Sorry

[MARTIN3030]

In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. More colloquially, burden of proof refers to an obligation in a particular context to defend a position against a prima facie other position.

[tamadus]

The simple fact is to use those older statements they will have to produce them in plenty of time. The fact that they failed to produce them following a perfectly legal SAR means they have already broken the law, I have a feeling that is not going to sit very well with a judge.

[rogerebaker]

In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. More colloquially, burden of proof refers to an obligation in a particular context to defend a position against a prima facie other position.

 

Sorry Martin youve lost me there !!