Barclaycard Microfiche Gumph

[mackie68]

hi all,

sorry to hijact your thread.

 

got the same standard response from BC.

replied that i would raise complaint with ICO, did that, ICO acknowledge complaint yesterday.

threatened court action against BC for estimated 750.

BC replied again today with same stance on Microfiche BUT "as a gesture of goodwill and without any admission of liability, i am prepared to credit your account with difference between the charges that you have incurred and the 12gbp fee recommended by the OFT. In accordance with the charges you have incurred, this would amount to 160gbp.

now i have 2 questions

 

firstly should i accept ?

secondly if he is able to calculate the difference then he must know my exact charges, i have statements that amount to 280 yet simple arithmatic tells me my total charges are 400. therefore he has all my statements yet has not sent them to me when requested.

 

what should my next step be ?

[MARTIN3030]

Go with your estimate if you feel thats a fair asessment.

Up to you if you do accept but you are not new here and know the consensus !

 

[hagenuk]

NO!

 

LBA for Data Protection Act non-compliance.

 

Regarding the quoted text "as a gesture of goodwill and without any admission of liability, i am prepared to credit your account with difference between the charges that you have incurred and the 12gbp fee recommended by the OFT. In accordance with the charges you have incurred, this would amount to 160gbp"

 

I would challenge BC to demonstrate to you precisely where they read that the OFT "recommended" a fee of £12.

 

The OFT website states:

 

Where credit card default charges are set at more than £12, the OFT will presume that they are unfair, and is likely to challenge the charge unless there are limited, exceptional business factors in play. A default charge is not fair simply because it is below £12.

I sent the following letter to BC in response to the standard "puzzled" letter.

 

 

I am in receipt of your letter of (date)

 

I note that you have refused my information request for the second time as you state that data prior to May 2004 is not “held on a computer system or a structured relevant filing system…” and statements therefore “do not fall under the Data Protection Act 1998.”

 

In order to clarify this I respectfully request a full explanation as to why you feel the requested data is not covered by the Act and the section of the Act which you believe excludes this data. In considering your reply I would draw your attention to Durant v Financial Services Authority (2003) EWCA Civ 1746.

 

My original request was deemed delivered to you on (date), therefore you have 6 days left in which to comply with my request for information. Should the statutory 40 day deadline expire without receipt of the information that I have requested 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, escalate this matter into an official complaint to the Information Commissioner and the FSA.

 

Accordingly if you do not comply within the next 6 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without further notice to you.

 

 

Yours sincerely

 

 

[MARTIN3030]

BTW........this is not a new tactic.......Citi Cards are doing the same calculations so its possible to actually work out the totals by adding the 12.00s to the number of transactions.

[:Boy:]

Just put my Moneyclaim in for £960.00 against Barclaycard. Not added interest, because I do not know the dates of the charges are.

 

I don't know if it is £960, but if they want to turn up at Court with proof, that it is not that amount, that is fine as they have commited an offence by not supplying me with the data!

 

Lets wait and see what happens:-D

[Glenn UK]

FWIW

 

The microfiche argument used by abbey and barclays is a sham.

 

THe DPA is about how data can be manipulated and primarily is there to protect the subject. It doenst give any speicifcs about how long it takes or how much it costs to do the manipulation but case law gives some indications of how the courts have viewed this.

 

The relvance of smith is it confrim systems whihc arent relevant filing systems. It uses the analagy of a bundle of papers. it suggests that you can have a filing system with an index telling you there is data in a particular file. however, when you get there you have to leaf through the file to find out whihc bit of paper the relevant data is held on.

 

This is not how microfiche works when storing data such as ours.

 

When the employee sets off to find your statement, he or she is going to a particular file with a particular set of films and selects the one he or she wants. they view the sheet and move throug the sheet in a particualr order to the spot where your record is.

 

If they dont do this they could never find anything.

 

I expect thier index is complex and computer based, or at leasst for the past 20 years or so it porbalby is. From this index if you give them a name and probalbe one other rlevant fact such as DOB or address, they can tell you the account details and exaclty where your data will be located.

 

Dont get bogged down into the whys and wherefores orf their arguments before you get to court. they are stalling you and its working.

 

If they write back saying we cant because its not a relevant filing system, write back and restate they have x days to comply.

 

If they decide to test it in court you will have to argue about your side, they on the other hand will likley refuse to produce any supporting evidence for their claims.

 

If they havent complied with your sar within the 40days take them to court and at the same time enter and estimated claim.

 

JMHO

 

Glenn

 

PS dont get annoyed, get even, its only buusiness, its not real life. Have fun!!

[viktoriaujj]

Hi

 

I have just sent out hagenuk's template letter (thanks hagenuk!!) recorded delivery- i thought i give barclaycard a last chance...but got the complaint forms ready filled out (Commission Officer) -as soon as i get a reply back from BC will send it out-almost sure that they still not going to comply.and getting my head round to do the N1 form (Thanks David!!)

hope i'm doing everything right!

v.

[Glenn UK]

FWIW complain to the commissioner and pursue them in the courts.

 

THe ico has limited powers and a back log as i udnertsand it.

 

Glenn

[mackie68]

i have decided not to accept BC's "offer and have composed the following letter

i would appreciate any help in the wording of the letter.

i believe that they have "tripped" themselves up with regards their argument that microfiche are not readily available to them

 

With reference to your letter dated 15th August, unfortunately I am not willing to accept your offer on the following grounds.

You appear to have calculated the total sum of my charges at £400, this is more than an I am able to calculate them at with the statements you have provided. I believe that means you are in possession of statements prior to May 2004. This would mean that you are indeed in breach of the data protection act in that you have not fully complied with my subject access request.

I would also draw your attention to the following quote on the OFT website

Where credit card default charges are set at more than £12, the OFT will presume that they are unfair, and is likely to challenge the charge unless there are limited, exceptional business factors in play. A default charge is not fair simply because it is below £12.

I am very disappointed that you have acted in this way

I now understand that the regime of 'fees' which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £400 plus £35.06 which you have charged me in overdraft interest for the sum which you have taken. Total £435.06

I am enclosing a copy of the schedule of the charges which I am able to calculate from the information provided you

I require repayment in full of this money. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus my costs and without further notice, I will also raise an action against you for non-compliance with the Data Protection Act.

any help much appreciated

[MARTIN3030]

You appear to have calculated the total sum of my charges at £400, this is more than an I am able to calculate them at with the statements you have provided. I believe that means you are in possession of statements prior to May 2004. This would mean that you are indeed in breach of the data protection act in that you have not fully complied with my subject access request.

 

 

 

I am just looking at the above.

 

If they say that these ARE available but at extra charge I would maybe reword it.

 

Your calculations,that my charges are £400.00,exceed that of the figures you have supplied to me.

As a result this is an indication that you do have freely available my account information pre 2004 and which, you indicated you could not supply with the fee I paid to you for this information under the data protection act.

My information is that 1 fee covers all data held.

[roydosan]

Good letter - but remember it is not 'overdraft interest' with a credit card, just interest. Minor quibble but it's better to be accurate.

[Glenn UK]

You appear to have calculated the total sum of my charges at £400, this is more than an I am able to calculate them at with the statements you have provided. I believe that means you are in possession of statements prior to May 2004. This would mean that you are indeed in breach of the data protection act in that you have not fully complied with my subject access request.

 

 

Sadly this is a waste of time, they may have statements from before they say they have them on a RELEVANT filing system

 

Unless its on a relevant filing system they dont have to send it to you when you send an SAR.

 

If they dont send you statements within the 40 day period then take them to court.

 

Sorry if this is peeing on your fire, but its unlikely towork, you will ghet another fiche standard letter in response, i have my third one now just about to send them another, i dont believe you letter and by the way you have so many days left to comply.

 

If it makes you feel better send it, it is flawed in terms of the dpa and i cant see them falling for it.

 

GLenn

[MARTIN3030]

A Microfiche can hold around 130 pages of A4 information.

 

If you do not believe that the fiche arguement holds,then why are Abbey getting a visit to their Hq in September by the IC who have swamped them with claims of failed compliance.

Abbey by the way have now started to use the 10.00 fee for fische statements.

 

There is always the option of requesting the statements and paying the charges.............whilst making clear these will be added on to any later charges recovery action.

[Glenn UK]

Sorry martin

 

Maybe i didnt explain why this particualr letter is a waste of time.

 

They have given him a level of charges, this doesnt prove that the data is on a relveant filing system. It doenst prove its on fiche, it could be a paper copy.

 

Whilst i doubt it, and i agree a fiche canbe a relavant filking system

 

the comments in the letter do not indicate this to be the case, in other words just because they know you charges which may include an element which is outside of the period for which they say they have to prpovide you with data, it doesnt PROVE that they have done anything wrong.

 

If they tell you that they have provided it from microfiche records then you can argue against that nopt being a relevant system and this is exaclty what many are doing.

 

THEDPA only requires BC to provide data as defined within the act thats held on a relevant filing system to the subject when requested.

 

Whats been posted doesnt demonstrate they have refused to do this as far as I can see.

 

If there is something ive missed id be pleased to have it pointed out.

 

Glenn

[MARTIN3030]

Glenn I see your points.

Maybe we are all putting too much effort into the MF saga and detracting away from the main issue.

 

At the end of the day Barclaycard have failed to defend a single case....their lawyers therefore are very unlikely to be able to enjoy the feeling of being in the right........they have not won a thing !

 

They have paid out on estimated claims and they have not questioned that in front of a judge.

 

At the end of the day its the claimants that are coming out on top.........with the money they were claiming in the first place.

[Glenn UK]

Martin

 

Im sure your right about them not defending, I didnt want the guy to get too excited based on the info he posted.

 

It would be really cool to get some firm evidence as to their lies, oh by the way. Have you read the Information Commissioners Office thread in the Campiagn section?

 

Some info re abbeys fiche argument has come to lgiht which i have forwarded on to the Information Commissioners Office.

 

Glenn

 

Edit I forgot to say that the fiche argument is becoming a hinderance to the overall objectives i feel. I think it woul dbe useufl for people to make their SAR, then just follow the process through. If they have some statements then make their estimated claim too. JMHO

[king mint]

They have paid out on estimated claims and they have not questioned that in front of a judge.

 

At the end of the day its the claimants that are coming out on top.........with the money they were claiming in the first place.

 

MARTIN3030, how do you know this? I ask because there is no evidence of successful claims against Barclaycard for pre-2004 charges on this forum.

[MARTIN3030]

Martin

 

Im sure your right about them not defending, I didnt want the guy to get too excited based on the info he posted.

 

It would be really cool to get some firm evidence as to their lies, oh by the way. Have you read the Information Commissioners Office thread in the Campiagn section?

 

Some info re abbeys fiche argument has come to lgiht which i have forwarded on to the Information Commissioners Office.

 

Glenn

 

Edit I forgot to say that the fiche argument is becoming a hinderance to the overall objectives i feel. I think it woul dbe useufl for people to make their S.A.R - (Subject Access Request), then just follow the process through. If they have some statements then make their estimated claim too. JMHO

 

 

Glenn,It is common knowledge that Barclays are not defending.....something the poster probably already knows.The ICs office are more than interested In Abbeys Fiche arguement........thats why they are commited to investigating it and already have plans to visit their HQ on September 12.

I fully agree that the more people who do complain the better.

I just dont want to see newbies here getting disheartened from the start of their claims by thinking they aint gonna get their statements.

As stated Abbey have now started to change tac in the face of ensuing mass complaints.

[MARTIN3030]

MARTIN3030, how do you know this? I ask because there is no evidence of successful claims against Barclaycard for pre-2004 charges on this forum.

 

 

You can be sure I know.

I would not say it if I didnt.

There is good reason as to why I cannot elaborate here on the main board,and can neither breach the confidence of the ones that have shared this info,which I might add was outside the confines of this site ....

[Rachel07]

I have just been on the Information Commissioners Office website and read an article they have written in Feb 2006 regarding the outcome of the Durant case. From reading it, it seems clear that the Information Commissioners Office are of the opinion that any information held in a manual filing system in Chronological order would not be a 'relevant filing system'.

 

As BC hold their microfiche info in chronological order they seem to be within their rights to charge extra on the basis of it not being a 'relevant filing system'.

 

I think i will just go ahead with the info I have and see what happens.

 

If anyone wants to check the info it can be viewed on their website www.ico.gov.uk under Technical Guidance Notes in the 'Your Legal Obligations' section of the Data Protection Menu. Titled 'The Durant Guidance and its impact on the interpretation of the Data Protection Act 1998'.

 

Hope this helps to clarify a few points.

 

R

[Glenn UK]

Rachel

 

the problem is that youre definition is too narrow. The relevant filing system should include reference to the indexing methodology as well as how the files are actually recorded.

 

I think the acid test is whether a specific record relating to a specific individual can be loaceted without a search.

 

Smith vs LLoyd clairifed that if you have to search in a file which may contain data about a subject, but you dont know if the particular piece you want is in there, would not be a relevant filing system.

 

The relvance being that the reverse would be true, ie. if you knowe exaclty where to find the record for certain, not withstandng missfiled data, then its a 'relevant filing system'.

 

I dont believe that barclaycard or indeed any of the other banks have a system whereby they still put records in boxes without any structure and that they have to actually search their records to determine if data on a subject is actually contained witin a given box/file/folder or whatever they cal the place they store their films.

 

If Barclays still have a system which doesnt allow them to identify the records for a given subject from the name and one other qualifying piece of data such as postcode, address, acc no, then i think we should go offer to sell them some kit!!

 

HTH

 

Glenn

[MARTIN3030]

I am an ex parts Manager with Audi/VW.

 

All replacement parts are covered on microfiche from a single washer to a complete Engine.

From the outset everything is in subgroups,and therefore quite easy to navigate.

 

I could find the part number for any part in a matter of a couple of minutes.

 

I would expect the banks system to be very much the same,and maybe by looking at a sub index they could quickly locate an account.

[JULI99]

HI THERE AGAIN.

 

WELL NO JOY WITH BARCLAYCARD SO I AM NOW GOING TO SEND THEM THE NON COMPLIANCE LETTER.

 

JUST TO BE CLEAR. I DID RECEIVE A COUPLE OF PAGES OF PRINTOUT ABOUT TELEPHONE CALLS THEY HAVE MADE, PAYMENTS I HAVE MADE ETC GOING BACK TO AUGUST 2005.

 

THE POINTS IN THE NON COMPLIANCE LETTER

 

2) You have provided no notes, or documents relating to any legal action between you and myself.

 

3) You have provided no notes, or documents relating to instances of manual intervention prior to August 2005.

 

IN POINT 2 THE REFERENCE TO LEGAL ACTION.

 

THERE IS NO MENTION OF LEGAL ACTION ANY WHERE GOING BACK TO AUGUST 2005. DO I LEAVE THAT AS IT IS OR DO I PUT "PRIOR TO AUGUST 2005" AT THE END OF THE LINE.

 

SECONDLY THE POINT ABOUT MANUAL INTERVENTION. I PRESUMABLY PUT PRIOR TO AUGUST 2005 IN.

 

THIRDLY CAN I START AND SEND A PRELIM LETTER TO THEM. I WOULD LIKE TO ADD THE MONEY THEY OWE GOING BACK TO MAY 2004 AND THEN £40 PER MONTH (EXCEEDED LIMIT AND LATE PAYMENT CHARGES) GOING BACK THE 6 YEARS.

 

MANY THANKS

 

JULI99

[Glenn UK]

Juli99

 

Its fine to amend the template letters as you see fit, personally i wouldnt worry if they havent sent you what you want, if you end up taking them to court they are going to look daft saying this claim is wrong we sent two statments or whatever out of the banking period.

 

Secondly if you sent the SAR template you didnt ask for six years, you asked for everything for your whole history with them.

 

Fianly if you estimate any orf the period youre claiming just make sure there is some logic you can apply when you have to explain it to the judge.

 

JMHO

 

GLenn

[JULI99]

Been Thinking Over This As Csl Have Now Taken Over From Mercers Trying To Get Money Out Of Me.

 

Yesterday Was Issued With A Notice Of Legal Proceedings.

 

Technically As I Have Not Been Able To Get Statements Out Of Barclaycard I Have Not Been Able To Pursue Them.

 

I Was Wondering Whether It Would Be An Idea To Send Both Csl And Barclaycard A Cca Letter Instead Of Pursuing The Back Statements And Going For The Jugular. If They Cannot Produce The Original Agreement Could I Get The Whole Debt Written Off.

 

Anyone Any Thoughts On This

 

Juli99