Tom vs Barclaycard - help!!!

[thourb]

Having read through a lot of the posts on here, it would appear that BarclayCard are using the microfiche defence in order to not have to post statements that are older than May 2004. I have yet to send off my S.A.R - (Subject Access Request), but I was wondering if there was any way you can integrate the S.A.R - (Subject Access Request) with your preliminary approach so that they are essentially the same letter, in order to save a load of time and hopefully stop them stalling so much.

 

I'm under the impression that if I were to write to them today with SAR, they could come back in 40 days time with half of my statements and a letter about microfiche, then I have to write back telling them that its not a valid arguement, that could take a couple more weeks - then if they still dont play ball, I complain to Information Commissioner and start County Court Action for a breach of the Data Protection Act - but a hearing date may not be until October or November, so i'd be 3 months down the line and still have not a lot to show for it.

 

I have kind of merged the two letters together, plus a couple of over bits that I have plagiarised from this excellent website. The main objective of this letter is just to get them to give me statements backdated until my account opened in 2003, but also to ensure that if they dont respond, that I can go straight onto a LBA in 40 days and file a claim in 54 days.

 

Anyway, take a look and let me know if its a load of old rubbish or not!

 

Dear Sir/Madam

 

 

 

Data Protection Act 1998

Subject Access Request

ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

 

Please supply me with a complete list of transactions and charges relating to my banking history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. If I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, as they are unlawful at Common Law, Statute and recent consumer regulations. Furthermore, I will also be reclaiming the enclosed £10 Data Protection Act subject access request fee.

My claim for a complete, unconditional refund of charges levied upon my account is on the grounds that your charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the UTCC Regulations 1999. Para.8 and sch.2(1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.

 

It has also been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary. The OFT have determined that any charges over £12 are deemed to be unfair. Please note that the OFT have not said that £12 is a fair amount, they have said that any charges over this amount would be liable to action from the OFT.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

I understand, from correspondence of yours sent to several of your other clients, that all statements prior to May 2004 are held on a microfiche filing system and, as such, in previous instances your company has contended that such data is not covered by the Data Protection Act as it is not a “relevant filing system”.

 

However, I draw your attention to the case of Durant vs Financial Services Authority 2003, of which I am sure your legal team are aware of. The findings of the appeal state in paragraph 46: "As to the 1998 Act, to constitute a "relevant filing system" a manual filing system must: 1) relate to individuals; 2) be a "set" or part of a "set" of information; 3) be structured by reference to individuals or criteria relating to individuals; and 4) be structured in such a was that specific information relating to a particular individual is readily accessible."

 

With the microfiche system in mind, this adheres to all of these criteria and therefore must be considered a relevant filing system.

 

I also draw your attention to paragraph 36 stating "the Judge mistook the meaning of the word "set" in the phrase "set of information" in the Act's definition. She submitted that "set" in this context meant, not an individual file and its structure or lack of, but the whole filing system of which it was a part. It was enough she argued, to show the existence of a filing system in which particular types of documents may be found, for example in an individual file identified by reference simply to the data subject's name."

 

 

You have 40 days in which to comply with this letter. Should you fail to comply, I will lodge a complaint with the Information Commissioner. Furthermore, I will also begin legal proceedings to reclaim the disproportionate charges levied upon my account.

 

Should you fail to furnish the required information within the prescribed time, I will assess my unlawful charges as £2000. I shall then send you a letter before action giving you a further 14 days in which to reflect. Failure to reply, or to reply satisfactorily within these deadlines will result in court action.

 

 

Yours faithfully,

[Bookworm]

A claim for what if you don't know how much to claim? The Prelim is there to reclaim your bank charges. So I don't quite understand what you are trying to achieve...

[thourb]

I'm trying to speed up the process a bit!

 

You're right, I don't know how much i'm trying to claim. What i'm trying to do is get them to act quicker. From reading threads in this section, it appears that BarclayCard are using the microfiche defence to delay things.

 

If I send in the bog standard SAR letter, they are going to fob me off half of my statements and a letter telling me that the stuff held on microfiche doesnt come under the DPA.

 

However, my thinking here is if i tell them that i'm estimating the charges they have applied to my account to be £2000 (of course, I don't know this as i dont have statements), they will either:

 

1) Tell me that my estimate is wrong, and send all the statements (and microfiche statements) to back this up - therefore I get what I wanted

 

2) They send me only the statements from May 2004 onwards. In this case, I am still forced into going to court without actually knowing the amount they owe me (as they wont send older statements). Therefore, I will keep my original estimate of £2000 and start court action. If i can't get all of my statements because BarclayCard will not send them, how can I be expected to give an exact amount?

 

3) They will do nothing at all, at which point I will complain to the information commissioner, and begin court action to reclaim my estimated costs back (after sending a letter before action)

 

Like i said, BarclayCard seem to be doing a good job of telling people that they can't send all statements out because they used microfiche before May 2004.

 

What is the best way to procede? Do I write to them like above, threatening to recover my estimated charges? Or do I just send a bog standard SAR and wait 40 days for them to send me a letter telling me that half of my statements are not covered by the DPA?

 

I'm a bit confused by this all, my LLoyds claim is nice and simple and I can use the bog standard letters etc because their online statements go back to when I opened my account with them and I dont need to worry about microfiche!!

[ninekey]

T, I think you're on exactly the right lines here. It's pretty clear that Barclaycard have set up a mirror strategy to match every step that those claiming a refund follow.

 

I don't really see what we have to gain by waiting for Barclaycard to give the stock answer in every case. It seems to me that we aren't really making the most of the intelligence from the Forum if we take that approach.

 

Much better to pre-empt their arguments up front and try to accelerate through a few stages, as you propose.

 

We need to be adapting our procedures to counter these sort of parallel strategies that the Banks are employing.

 

Innovate or die, I say.

 

One caveat: I do agree that there are difficulties over estimating charges. I suspect that risks undermining the credibility of our claims. The way I have tackled it is to make the claim for the post-2004 stuff (for which the evidence is available) and then expressly reserve my right to make a further claim for the pre-2004 charges, after the disclosure stage in the Court proceedings.

[thourb]

I don't really see what we have to gain by waiting for Barclaycard to give the stock answer in every case.

 

I would agree - as long as we are giving them a 'reasonable' amount of time for them to determine their response, and then perhaps another 14 days after that in case they should change their mind (LBA).

 

Much better to pre-empt their arguments up front and try to accelerate through a few stages, as you propose.

 

Let's hope so!! I don't want to have to wait 40 days for them to tell me only half of what I need to know, then possibly several months for me to find the rest out!

 

One caveat: I do agree that there are difficulties over estimating charges. I suspect that risks undermining the credibility of our claims.

 

Like i said in an earlier post, how am I supposed to know exactly how much they have unlawfully charged me if they wont send me all the statements so I can back it up?

 

The way I have tackled it is to make the claim for the post-2004 stuff (for which the evidence is available) and then expressly reserve my right to make a further claim for the pre-2004 charges, after the disclosure stage in the Court proceedings.

 

I am hoping that they reply with all of my statements so that I have definate proof, without having to make further claims later on - that's where I think it could all get a bit messy! Either that, or they make a good offer or pay me off! Here's hoping!

 

If it were to go to court, I would argue that I had no way of knowing exactly how much they had charged me. They will probably argue that they will happily post out older statement copies for a £3 charge per statement, so I could have found out exactly what they had charged. In my opinion, however, that can only back up the fact that microfiche is an organised filing system, which would therefore fall under the DPA guidelines.

 

My interpretation of the Data Protection Act on disclosure is obviously that data stored on microfiche should be included in the DPA. There are cases in the past that have backed this up. BarclayCard obviously disagree with me on this point and there are cases which could back their opinion too. I guess it would be up to the judge to decide ultimately.

 

I strongly doubt that BarclayCard would want to risk a court appearance in those circumstances, but either way, I'm sure I will get what I want. In fact, i wouldnt mind going to court anyway! The money isnt even important - ive got a £750 LLoyds claim going that will hopefully pay off! - i'm ready to fight them!

[thourb]

Thanks for your reply Karne! Very helpful information there.

 

Couple of questions that I do have.. Sorry for the length of this post, I think its going to be another long one....

 

I think you should, however, time your letters deadlines to coincide so you can file on day 41 of the Data Protection Act request.

 

By this, do you mean that I should change the 40 day DPA deadline to 26 days, then on the 26th day post a Letter Before Action, giving them a further 14 days, telling them "hurry up with my DPA or i'll see you in court"?

AND join the claim with a Data Protection Act section 7 claim. So you can argue the DPA case in court if it comes up.

 

I'm assuming that this means i'm going to have to find even more space on the (already tiny) moneyclaim particulars form to put in a bit about the DPA.. May have to file manually lol.

Bear in mind that if Barclays do send the statements out - you will have to pay non recoverable £35 fee to the courts to amend you claim to the correct figure and remove the Data Protection Act part of the claim.

 

Thats not a big deal, in fact, I don't think it will come to that. Even if it does though, I'll offset the £35 cost against the amount im claiming. I think that £35 is a reasonable fee to possibly speed the process up a couple of months!

 

In fact, I have about another years worth of statements which are stored on Microfiche - and if BarclayCard were to have their way, it would cost about £30 to get them anyway, and there's no precedent to claim that back as costs in a court case.

 

I do agree with you that they will probably not read the letter fully and will probably send out their bog standard microfiche response anyway, but that's to my advantage really if they don't read it. One thing i'm not sure of though.. If they were to respond with their microfiche letter on the 39th day, should I still write to them again to ask them to reconsider? I'm just thinking that a judge would look more favourably on me if I were to give them every opportunity to change their minds...

 

Another way of looking at it, is something I saw on another thread here. On the assumption that they come back to me with their microfiche defence, I could write to them saying something like:

 

You have not supplied the details from xx to xx. I require these as evidence in any future case I bring against this bank. If you do not supply them I will ask the court to order that you supply them as evidence. If after this you fail to supply them any evidence you produce to the contrary I will ask to have dismissed.

 

As the charges are indeed unfair and unlawful, I could ask to have them as evidence for any impending case brought against the bank. If they don't supply them they wouldn't be able to pull them out of the air as evidence as I asked previously. In this case, if it got to court, I have the DPA arguement and the bank has nothing - so if the judge were to rule in my favour about the DPA arguement, the bank would most likely have no choice but to pay back my full estimate of charges brought against me.

 

I honestly cant see them taking the court option, especially in a case like this. I can't for one second believe that they will want to risk their case on the judges opinion of whether or not microfiche comes under the DPA. If it does get that far though, i'd be willing to fight them.

[thourb]

Thanks again for your reply Karne! I will change my letter for the new timescales you have suggested and get it posted off today. I will set my estimated claim at £1400, as this will mean that even after court costs, I don't have to pay out an additional £100 when I fill out the AQ (£100 is a lot of money when you don't have it yet.. hopefully LLoyds will pay up soon!)

 

Working out interest on a figure that i'm plucking out of the air is going to be impossible, so I won't even bother asking for interest. Will have a look at your other thread too.

 

Thanks again!

[thourb]

OK, modified appropriately.

 

DPA letter is now in the post. Lets see if anything happens in the next 12 days...

[thourb]

Will do - and yes, I think thats what i'll get too..

[thourb]

Well, surprise surprise!

 

Got my statements this morning from Barclaycard since May 2004, plus a microfiche letter.

 

They owe me £300 as far as I can see from what statements I have got. I have decided that its probably going to be faster and easier to speak to their customer services dept and order copy statements back to July 2003 when account was opened, at £3 per sheet. I'm sure there are a good few charges on these, and I will claim this back from them anyway afterwards.

 

Will keep you all informed.

[gizmo111]

Well, surprise surprise!

 

Got my statements this morning from Barclaycard since May 2004, plus a microfiche letter.

 

They owe me £300 as far as I can see from what statements I have got. I have decided that its probably going to be faster and easier to speak to their customer services dept and order copy statements back to July 2003 when account was opened, at £3 per sheet. I'm sure there are a good few charges on these, and I will claim this back from them anyway afterwards.

 

Will keep you all informed.

 

I had the same from them today and I intend to reply asking for statements and to pay for them and then add it to my claim - I will inform them in my letter that I shall be reclaiming as they failed to comply with DPA

[thourb]

Well, rather than pay £3 per statement (which I can't really afford anyway at the moment), I spoke to Paul at Barclaycard last week. I have to say that he was very helpful. I explained the unlawful charges to him and insisted that he send me statements FOC. He said that he was going to investigate the charges himself and to do so he'd need the microfiche statements - so he would send those out for free.

 

I got a letter in the post this morning, confirming that he was getting the statements and would get back to me before the 30th August. I have already warned them of impending court action in my S.A.R, so I will wait for his response before sending a LBA.

 

I am hoping for something good, but not expecting much more than "the difference between your charges and £12"...

[thourb]

Well, haven't received any official letters from BarclayCard yet, but checked my statement online - it would appear that i've been refunded £120 (Guessing that this is the difference between what they owe me and the £12 charge recommended by the OFT).

 

Thats certainly a start! I will wait for them to write to confirm what they have done and say that I accept the amount they have credited as partial payment but will give 14 days to cough up the rest, or its moneyclaim time!

[thourb]

OK, I got a letter from Barclaycrap regarding the partial refund, as I suspected they are the difference between what they owe me and £12 "recommended" by the OFT. I sent them a LBA on 30 August, which they have now replied to telling me that I can bog off if I want the rest.

 

Looks like its time to go to court! I will give them a few more days to ponder... Reality is that i'm going to have to wait until I get paid on the 25th before I can file moneyclaim. I hope that they fold pretty quickly... At least this means that I can claim interest too

[thourb]

Moneyclaim filed today.

 

6QZ66669

£209.93 total

 

Will hopefully have my money back reasonably soon! Hopefully they will be less of a pain than Lloyds have been!

[thourb]

Okay, Barclaycard have (finally!) sent me the rest of my statements, the ones held on microfiche. They have also, yesterday, acknowledged my claim against them. I seem to have a slight problem. I'm not 100% sure on how to resolve...

 

These new statements that I have received have got another £100 worth of charges on them, plus further interest of £21.25, total of £121.25. I have also not charged barclaycard in my claim for the £10 SAR refund, so in total, this would add £131.25 to my claim.

 

What would be the best course of action? Would I be best to bite the bullet and amend my particulars of claim - pay the £35 fee and send barclaycard a new schedule of charges, or wait until they want to settle and hit them for the new charges then?

[thourb]

Okay, Barclaycard have (finally!) sent me the rest of my statements, the ones held on microfiche. They have also, yesterday, acknowledged my claim against them. I seem to have a slight problem. I'm not 100% sure on how to resolve...

 

These new statements that I have received have got another £100 worth of charges on them, plus further interest of £21.25, total of £121.25. I have also not charged barclaycard in my claim for the £10 S.A.R - (Subject Access Request) refund, so in total, this would add £131.25 to my claim.

 

What would be the best course of action? Would I be best to bite the bullet and amend my particulars of claim - pay the £35 fee and send barclaycard a new schedule of charges, or wait until they want to settle and hit them for the new charges then?

 

Bump! Could really use a bit of advice on this one??

[gizmo111]

Okay, Barclaycard have (finally!) sent me the rest of my statements, the ones held on microfiche. They have also, yesterday, acknowledged my claim against them. I seem to have a slight problem. I'm not 100% sure on how to resolve...

 

These new statements that I have received have got another £100 worth of charges on them, plus further interest of £21.25, total of £121.25. I have also not charged barclaycard in my claim for the £10 S.A.R - (Subject Access Request) refund, so in total, this would add £131.25 to my claim.

 

What would be the best course of action? Would I be best to bite the bullet and amend my particulars of claim - pay the £35 fee and send barclaycard a new schedule of charges, or wait until they want to settle and hit them for the new charges then?

 

I would do a seperate claim as you cannot reclaim the £35 amendment fee - but entirely up to you.

[thourb]

Grrrr! How irritating is that! Barclays waited until the last day they could enter a defence!

 

Now i must wait to see what it says......

[thourb]

Well, i'd almost forgotten about the entire case - it had gone on for so long without any correspondence... But i got the letter from Barclays yesterday, offering to settle in full.

 

When this is done, i'll be writing to them again telling them that they still owe me more! Woooo