alanfromderby v Abbey - 2nd Claim - Judgement awarded

[Spiceskull]

The 16.9% would have to be included within the particulars of claim and therefore in the total amount claimed. However, I am including in the claim the following clauses which would mean the added interest would revert to the CCA 8% if the judge disallows the 16.9%:

 

"The Claimant also claims interest at a rate of 16.9% as set out in the attached list of charges. The Claimant believes this rate to be justified under the principle of mutuality and reciprocity, and is based on the Defendants overdraft interest rate that would be applied under the terms of the above mentioned account.

 

Should the court find that this interest rate is not applicable, then as an alternative the Claimant wishes to claim interest pursuant to section 69........"

So effectively you are leaving the claim open for two different amounts - with 16.9% interest, and without? Do you not think that there is a danger the court would interpret this as uncertainty...although clearly you are leaving the decision to the wisdom of the courts?

[alanfromderby]

So effectively you are leaving the claim open for two different amounts - with 16.9% interest, and without? Do you not think that there is a danger the court would interpret this as uncertainty...although clearly you are leaving the decision to the wisdom of the courts?

 

 

No, the matter of reciprocity is untested, and could be rejected in court. Should it be rejected, then it is important to then be able to fall back on your right to claim interest under the County Court Act.

[Seminole]

Alan- have they acknowledged your claim as well?

[alanfromderby]

Just spoke to the court and they have now acknowledged my DPA claim with intent to defend. So, that would mean they have to file a defence by 15th June. Can't wait to see what it says!!!

[Odd Fellow]

I'd be interested to see the defence too.

 

Bet it will be some form of continuation of the Microfiche coblers - given all the paperwork that's been sent out to so many people dishing this up, it would be difficult for them to argue anything else at this stage.

 

I'm planning a trip to Great Yarmouth Magistrates Court later today to file the same complaint - my N1 is at the ready.

 

Odd

[alanfromderby]

In many respects it would be both dangerous, and extremely stupid, for Abbey to go to court with the microfiche defence.

 

Firstly, if it was difficult to get hold of this information then how does it suddenly become possible at a charge?

 

Secondly, if they were to go into court and lose, it would totally blow their argument out of the water and they could no longer use it as a means of delaying claims.

 

Bring it on!!

[Odd Fellow]

Well, there are a couple of possibilities and one appears not to have been spoken about a lot on here, possibly becasue we don't want to beleive it.....

 

What if the Microflche arguement is actually the case. What if they do archive all old data on to Microfiche and remove it from their systems. What if the Microfiche is so badly arranged that it is not considered to be a Relevant Filing System?

 

Another possibility is that they stick to the argument and dig out some form of evidence to back it up.

 

If they suddenly choose another argument, it would surley raise suspisicion given that they then begin to change their story with so much documentary evidence to hand demonstrating some other reason?

 

In all cases, I think it would be helpful to have signed affidavits from those who got the information without any of these silly arguments to demonstrate that if it's possible for some, it should be possible for others.

[Beaker_smiles]

I don't think the microfiche arguement, as put by oddfellow, would hold water. As LLoyds v Smith concluded, microfiche is considered relevant if it has recently been processed from a computer. Surely if it is covered by the statute of limitations then it cannot be argued to be an old system which is hard to use.

[alanfromderby]

What if the Microfiche arguement is actually the case. What if they do archive all old data on to Microfiche and remove it from their systems. What if the Microfiche is so badly arranged that it is not considered to be a Relevant Filing System?

 

Another possibility is that they stick to the argument and dig out some form of evidence to back it up.

 

Playing devil's advocate for a moment (which doesn't come easy for me). If the microfiche is badly organised, or not properly indexed, it would put Abbey in a position of breaching other parts of the DPA.

 

It would also put Abbey into breach of Inland Revenue regulations which state that records must be kept, and available for inspection, for six years after the end of the particular tax year.

 

My belief is, and also has been, that Abbey originally started to work from an out-of-date interpretation of the DPA - and circumstances have meant that it was convenient for them to stick with that interpretation, whilst they could get away with it!

 

I have no doubt that Abbey's legal department will fully understand the difficulty, and pointlessness, of trying to defend this, and that they will want to seek a negotiated way forward.

 

After all, if they did spend a few grand defending this, and were to actually win, what would it achieve.

 

1) It will cost me £130.

2) I will be forced to put in an estimated claim.

3) They will have to pay me the estimated claim - or provide the actual figures.

 

It will not stop anybody making a financial claim - and it would not set any precedent, as we already know that a District Judge has not got that authority.

 

So, as I have said, it would be pointless.

[alanfromderby]

This morning Abbey finally provided the microfiche information, and I have been able to get a proper total. It is less than I thought, but the claim will still be in excess of £3,500.

 

The letter stated that there was no recorded manual interventions - which, I would tend to believe as all the charges relate to automated actions.

 

So, now I must wait and see just how (dis)organised Abbey are at the moment. They are due to file a defence by next Wednesday to my DPA action - wouldn't it be funny if they actually did!?!

 

Of course I still require them to pay my court fee, and the £5 damages.

 

So, time to prepare my claim, and Friday it will be another trip to Derby County Court.

 

:)

[joneshousehold]

Sounds like our planned trip to the Court won't happen. I know you will probably be a lot happier but I am a bit disappointed. Sorry to be negative, I will stop now - deep breath and....

 

Wow great news! Now you can get that claim in and start the ball rolling. Well done.

 

Looks like the old microfiche argument was just twaddle after all. Well done for calling their bluff

[Seminole]

Alan and I made our DPA claims close together and they haven't satisfied mine yet so one of us might end up in court yet!

[alanfromderby]

Sounds like our planned trip to the Court won't happen. I know you will probably be a lot happier but I am a bit disappointed. Sorry to be negative, I will stop now - deep breath and....

 

Wow great news! Now you can get that claim in and start the ball rolling. Well done.

 

Looks like the old microfiche argument was just twaddle after all. Well done for calling their bluff

 

 

I must admit I was rather looking forward to seeing what defence Abbey were going to manage to cobble together. Mind you, they still have to cough up the £35 they owe me yet.....and Bristol & West may still decide they want to play!!

[joneshousehold]

Alan, I really want to say I hope so but that wouldn't be fair. You know what I mean though.

 

Seminole - I will have to book a hotel if it's your claim in Court. I'll keep my fingers crossed - sorry I probably mean I hope they comply.

 

Perhaps we should just meet outside a branch of the Abbey. Everyone wear a raincoat and a beret and carry a red carnation. Now I am just getting silly!

[Odd Fellow]

Hmm. Interesting.

 

I filed under DPA on Tuesday - still waiting for a case number.

 

In the mean time, shAbbey has sent what looks like the "microfiche" records. Looks terribly like a computer printout though. There's also a letter with it, reproduced in detail in my own thread (oddfellow vs abbey). Now that I have the details and the claim hasn't been acknowledged, have I lost my £30 fee and £25 damages claim?

[alanfromderby]

Hmm. Interesting.

 

I filed under DPA on Tuesday - still waiting for a case number.

 

In the mean time, shAbbey has sent what looks like the "microfiche" records. Looks terribly like a computer printout though. There's also a letter with it, reproduced in detail in my own thread (oddfellow vs abbey). Now that I have the details and the claim hasn't been acknowledged, have I lost my £30 fee and £25 damages claim?

 

No, the claim continues until you are satisfied that they have provided the information AND they pay the costs and damages. The claim was issued because they defaulted on compliance - okay they have now supplied the data but that does not take away the fact that they were late and you were forced to issue a claim.

 

Sit tight and wait for their response.

[alanfromderby]

Finished putting together my N1 ready for filing at Derby County Court tomorrow lunchtime. As previously mentioned I am claiming mutual and reciprocal interest at 16.9% - also included the DPA fee and £25 towards my costs, so it will be interesting to see how this pans out.

 

Total claim is £3547.94 plus £120 court fee.

[alanfromderby]

Just as you think you have your claim completed, another charge appears - so, after reprinting all the paperwork I duly filed the claim for £3582.94 plus £120 fee. This gave me even more pleasure as Abbey finaly sent me the standard get stuffed letter this morning - you know, the one that says:

 

"If the complaint escalates into a claim in the County Court, we will review each case individually, and if we feel that our relationship with our customer has broken down completely, we may decide to give notice to close the account under the Terms and Conditions"

 

So, just have to sit back now and wait for them to play out their usual little game of brinkmanship - Yawn! Yawn!

[alanfromderby]

One interesting point....Abbey have not yet filed a defence to my DPA claim. Whilst they have provided the documents I requested, they have still to pay my court fee and £5 damages.

 

So, they have to either cough up my £35...or enter a pointless defence by Thursday.

[alanfromderby]

So, they have chosen to enter a pointless defence!!!!!

 

Exactly the same as seminole's - but I already have the information. It is going to be an interesting couple of weeks!

[Seminole]

Anything new from them?

[alanfromderby]

Absolutely nothing from either Abbey or the court since receiving the defence from DLA last week. I was going to talk to the court today, but when I remembered it was too late to ring. Will try tomorrow if nothing turns up in the morning.

 

Just want to get hold of the Allocation Questionnaire now - I want my £35!!

[alanfromderby]

Finally got the AQ through the post this morning - and have duly completed it ready to take back to the court tomorrow. All this hassle for £35!!

 

Still haven't had the snotty letter yet though...perhaps they are having a rethink after seminole's response!!

[alanfromderby]

This letter arrived to day from DLA Piper Rudnick Gray Cary, in response to my Data Protection Act Action. It has a number of subtle differences from seminole's letter - the most striking ones being that there is no mention of the Information Commissioner, and also no threat regarding the Judges comments in the Durant Case. This is the letter:

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear Sir

 

OUR CLIENT: ABBEY NATIONAL PLC

 

We note that our client has now supplied to you the statements requested in your proceedings.

 

It has always been our client's position, that they have not refused to supply any information requested, simply that the information is not covered by the Data Protection Act and therefore, does not have to be provided within the 40 day period prescribed by the Act.

 

As the information has now been provided, please confirm that you will agree to withdraw your claim on the basis of no order as to costs.

 

If you do not agree to withdraw your claim, then we shall be left with little alternative but to advise our client that an application to court should be made to strike out the claim. Our client's position is that the information, stored in the manner, in which our client has stored the information, does not fall within the definition of a relevant filing system under the Data Protection Act and as such, none of the provisions of the Act apply.

 

If you require legal authority to support this position, then may we suggest that you refer to the case of Michael John Durant and the Financial Services Authority (2003) EWCA CIV 1746.

 

You will have now received an allocation questionnaire from the court, which will require you to file the same by 6 July 2006, and pay an additional fee. In the circumstances, to avoid further costs and fess being incurred, please confirm that you are agreeable to withdraw the claim on the basis of no order as to costs.

 

Yours faithfully,

[alanfromderby]

This is the response I sent today:

 

 

 

Dear Sirs

 

Your ref: xxxxxxxxxxxxxxxxxxxxx

Court Claim: 6DE03832

 

I am in receipt of your letter dated 21st June 2006.

 

Whilst I can confirm that the outstanding data has now been received, I do not agree with your client’s attestation that the information in question falls outside of the scope of the Data Protection Act.

 

Indeed, I believe that the explanation of the process for retrieval of microfiche records, as outlined in your client’s defence, proves conclusively that this is indeed a “relevant filing system” as per Durant v FSA.

 

As the information was not provided until 7th June, your client failed to provide it within the 40-day timescale. I would also point out that prior to this, I sent your client a letter disputing their view that Microfiche is not a relevant filing system. It is also worth noting that this letter was sent after seeking the advice of the Information Commissioners Office, who also advised that I should make a formal complaint in this matter.

 

A Letter before Action was also sent.

 

Your client therefore had plenty of time to supply the information and avoid county court enforcement action, therefore my claim will not be withdrawn until your client settles the outstanding issues.

 

I would advise that the Court Allocation Questionnaire has been completed today and delivered to the Court Office this afternoon. I have noted on the form that your client has now complied with my Data Subject Access Request, and that I am just seeking payment of damages and the court issue fee.

 

Should your client be so eager to avoid further litigation expenditure – perhaps you will bring to their attention my other action (6DE04574) for the refund of unlawful charges. It is worth noting that the recent OFT statement, included the view that excessive penalty charges are unlawful, and that this included charges made by banks, as well as credit card companies.

 

Finally, I would suggest that it may be worth informing the writer of your letter, that no additional fee is payable with the Allocation Questionnaire, where the value of the claim is less than £1500 – I would not like to think that you could be inadvertently misleading, or giving unnecessary concern to other litigants.

 

Yours faithfully,