Me v ‘Them’

[Buster78]

Hi all, I have a case in my local County Court for non-compliance of the Data Protection Act. The defendant did supply most of the info, but no call recordings or info on PPI.

 

I’ve had 2 hearings so far, one for judgement in default and they turned up at the hearing with a defence, so my AN was thrown out. The other was for summary judgement as the defence they submitted only related to the POC with no mention of any of the documents I’d submitted. At that hearing they sent a top London solicitor and again my AN was thrown out.

 

The defendants’ argument so far is that telephone recordings are not subject to the DPA but they some times supply them to their customers as a good will gesture and the PPI is supplied by a ‘sister company’ so they are not responsible for it.

 

My position is that in order for them to record phone calls they have to comply with a number of Acts, one of them the DPA. If they have to follow the DPA to record them then they should be supplied under a SAR as they would CCTV. The calls are also recorded onto a computer, which is a relevant filing system under the DPA and they also contain my name, address and account details etc. The credit card PPI was sold by the defendant (my card is with them) and I’ve made it clear that while it maybe a sister company that supplies the PPI, they must hold some info as they sold it and they also process the premiums.

 

At the last hearing I was ordered to pay £750 costs which is a lot for me. As I didn’t want to risk any more, I wrote to the defendant and said I would drop the case if they agreed not to pursue further costs. They’ve ignored the letter so I have no option but to carry on.

 

I’m waiting for the court to send me an allocation questionnaire for the final hearing, which I’ll chase up tomorrow. The problem is, I’m not sure what info to print out to backup my arguments.

[Buster78]

Sorry, I should have said… I have another thread about this but I think the defendant is watching it so I haven’t said who they are.

[Guest]

hi buster

 

subbing. agreeing with you that identifiable recorded telephone calls are personal data and should be disclosed under a sar, and not just as a matter of 'goodwill'! AFAIK, they may be entitled to ask for the dates of such calls, but once that is provided they should disclose a copy/transcript of whatever they've got. maybe an idea to get a quick email confirmation from the ICO re their view on disclosure of rec tel calls under sar?

Edited October 11, 2010 by Ford
typo

[citizenB]

Thanks for the link,Buster.

 

I would agree with you that the telephone logs should be part of the SAR. Perhaps as Ford has suggested, a quick call to the ICO might clear this up once and for all. Meanwhile, I will look for further information on this.

[Buster78]

Hi Ford, thanks for replying. The data controller did ask me to supply them with a list of dates and times, but at the time I did not have any to give them. Shortly after filing the court papers I found one date in some paper work, which I gave them in writing, but they replied saying that as we were now in litigation, it all had to go through their solicitors.

 

It’s now coming up to a year since I filed the court papers and their solicitors have ignored every single letter I have sent them. In the paper work they sent in reply to my SAR there is a list of mail in/out and phone calls in/out but it looks like it has been edited as parts are out of order. There is one call listed on that and the staff member who called gives a brief description of what was said.

 

I emailed the IC a while ago; this is what they said regarding phone calls…

 

“If the information is held then it should be provided. However, a data controller is entitled to request further information in order to help them locate the information requested. In relation to telephone calls we usually consider it reasonable for a data controller to ask for the approximate date and time of a telephone call in order for them to locate it.”

 

As I don’t have a full list of dates and times I’m working on the assumption that the Defendant has a list on my account, which they edited before sending out to me, so it shouldn’t be necessary to supply the details?!

 

Their solicitor at the last hearing, flat out denied that recordings are covered by the DPA and unfortunately, the DJ didn’t like the fact I was a LIP and basically ignored everything I said.

 

The defendant is trying to teach me a lesson to put me off reclaiming PPI etc, the solicitor even told the DJ that I needed to be taught a lesson.

 

Thanks again for your reply.

Edited October 11, 2010 by Buster78
typo

[Buster78]

Hey Citizen, thanks for the info, I'll go through it now.

[Guest]

..

Edited October 11, 2010 by Ford
duplicate post deleted

[Guest]

..

Edited October 11, 2010 by Ford
another duplicate post deleted!

[Guest]

hi buster

 

As I don’t have a full list of dates and times I’m working on the assumption that the Defendant has a list on my account, which they edited before sending out to me, so it shouldn’t be necessary to supply the details?!

 

agreed. imo. it would not have been unreasonable for the data controller to simply refer to their computerised 'log' on screen (which includes details, including dates/times, of all tel calls in/out) and use that to search for recorded calls!

Edited October 11, 2010 by Ford
typo

[zingy]

The defendant is trying to teach me a lesson to put me off reclaiming PPI etc, the solicitor even told the DJ that I needed to be taught a lesson.[

What?! That is bang out of order! What did the DJ say to that?

[Buster78]

What?! That is bang out of order! What did the DJ say to that?

 

Hey zingy, he didn’t put it as blunt as that. He was making his final argument to the DJ. He said that a ruling in their favour and an award for full costs (£1000) would teach me a lesson as I would be put off from carrying on with the case by the risk of further costs, and make me think carefully before taking on ‘other frivolous court cases’. The DJ didn’t say anything and seemed to love the fact a solicitor from that law firm would grace his courtroom. They were having a laugh about whether VAT could be added to the £750 awarded to him.

 

He was having digs throughout the hearing; I’ll be ready for the smarmy little rat next time!

Edited October 12, 2010 by Buster78

[Buster78]

Hi All, sorry I haven’t updated the thread for a while; I’ve been in hospital with an infection.

Anyway, I managed to phone the court today and chased up the AQ. The woman I spoke to couldn’t explain why it hadn’t been sent out or picked-up before now, but she’s sorting it ASAP.

I also phoned the ICO. They confirmed that telephone recordings are subject to the DPA and should be supplied under a SAR. She couldn’t find any written publications that mention recordings so advised me to email them asking for it to be put into writing.

I have the email stated in post 5, but I am not sure if the court would accept it. I think I have two weeks to submit the AQ? once I’ve received it, so hopefully the hearing will be after Christmas. Can anybody tell me whether there is a charge for submitting the AQ?

[Buster78]

Hi all, well I’m still battling away with this! I filed the AQ before Christmas and I’ve just received a letter from the Court (they are useless) saying the Defendant hasn’t filed one. The Judge has ordered them to file an AQ or they’ll be thrown out and I’ll be free to ask for judgement. It doesn’t give a date by which they have to have it filed so I’ll have to phone the court.

I have a question if anybody can help? Before now I’ve only been able to claim my costs, but at the last hearing the Judge ordered me to pay £750 costs to the other side. Does this mean I can now claim under Section 13 (1) of the DPA that I have suffered financial damages due to Lloyds not complying with the DPA? If it does, then can I also claim distress under Section 13 (2) as typing up all the letters to Lloyds, the court and preparing all the evidence etc. etc. has been extremely painful because I have Osteo and rheumatoid arthritis in my hands and wrists?

I’m really hoping this will be over with soon, I don’t think I can cope with it any longer.

[Guest]

bump

 

hi buster. hopefully they will not reply!

i don't recall the full background details atm (so excuse this if it is wide of the issue), but is there anyway that this can be resolved without going to court, and thus avoiding any poss further liability re their costs? taking 'them' to court is risky, particularly re costs! did you exhaust their internal complaints, and the ICO first?

imo

Edited March 10, 2011 by Ford
typ

[Buster78]

Hey Ford, I’ve checked with the court and they have to file it by 4pm on the 16th, which I think they will do. Unfortunately I have no option but to continue, I’ve written to them saying I’d drop the case if they agree not to seek their costs, but they have ignored the offer along with every other letter sent to them.

I’m hoping the Judge isn’t going to look favourably on them as they’ve basically ignored all court procedures with regards to filing papers. I have the emails from the ICO to present to the court and I’m hoping to make a better impression with my skeleton argument, as the previous witness statements weren’t very professional.

If I can claim under section 13 then hopefully I’ll at least be able to recover the £750 costs I’ve paid.

Thanks for the reply.

[Guest]

hi buster

 

if it does come to the issue of costs against, then hopefully the J will take into account that you tried to settle the matter, plus their non compliance, and not award them any further costs!

 

bump also

[Buster78]

Hi Ford, I’m really sorry, I had no idea you’d replied.

The defendant filed their AQ on the 16th and they also sent me a copy. They had asked for it to be stayed so a settlement could be sought, but as usual I haven’t had anything else from them. I’ve just got a letter from the court and I’m not sure what they are asking me to do.

It says ‘ This is a matter in which the Claimant seeks £** & 'Damages'.

There have already been two hearings. The Court is bound to take into account the overriding objective and proportionality. What directions are sought by each party and how long will the hearing take?

Parties to respond by 14 days and serve their response on the other party as well.’

I’m not sure what he means by directions? Is he asking whether I want it stayed (I said no on my AQ) or is it what I’m seeking in court? The letter is dated the 12th but I’ve only just got it.

Does anybody know?

[Guest]

hi

(I said no on my AQ

have you already sent off your AQ?

 

bump also

[Buster78]

Hey Ford, I hope you're well. Yes I returned my AQ before Christmas, the DJ ordered the Defendant to submit theirs by the 16th March as they didn't do it before the deadline.

 

I think he means whether I'd like the case stayed or carry on, I just don't want to waste the courts time by sending the wrong thing.

 

Thanks for the reply.

[Guest]

hi (am good. hope you are well, despite the antics of your opposition!)

 

oh ok! sorry.

re directions - generally, this would involve any particular requests to the court to direct re any disclosure of docs, witness statements, expert evidence, trial date/location for eg.

imo

have bumped your thread.

[caro]

Hi Buster.

 

Firstly bear in mind that the stay is for both sides to attempt to settle, so I'd suggest that you write to them again, but you might want to think about your directions first. It could be an opportunity for you to push a bit harder. You have given them a chance to have the case dropped and they haven't taken you up on it, so you can only assume that they want to carry on to court.

 

This CPR covers the overriding objective. http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part01.htm

 

On the face of it, I'm guessing that the financial amount you're claiming is small so to have 3 hearings might seem excessive or disproportionate.

 

I guess you have another reason for wanting this information which could be worth a lot more, in which case perhaps to you it is worth it.

 

The directions part is what you want the judge to do. eg

 

1. Provide the outstanding information from your SAR including but not limited to telephone calls as shown on their system as required under the DPA. (attach a copy of the email from the ICO.

 

2. Pay you £xx as per your POC.

 

3. Costs??

 

I would suggest that you also include a letter to the court explaining your reason for why this information is so important to you.

 

Has the case been allocated yet and is it small claims?

 

Write to the solicitors and send them a copy of the email from the ICO confirming that phone calls are covered and invite them to ask their clients to comply to avoid the need to waste any more of the courts time.

 

You need to try and get them to carry their own costs too due to their ommission in complying fully with the SAR in the first place. They should know their responsibilities as a Data Controller.

Edited April 20, 2011 by caro

[Buster78]

Hi Ford and Caro, many thanks for the brilliant help you’ve given. I typed up a letter and dropped it off at the court on Thursday. My dad has had a heart attack so I was late filing it, I included an apology to the court and gave a brief explanation for the delay; hopefully they will understand.

It hasn’t been allocated yet, although at the last hearing the Judge said it would likely be handled on the small claims track and both I and the defendant have asked for that on our allocation questionnaires.

I sent a copy of the directions to their solicitors, I’ll write another letter to them as you suggest. Not heard anything from them yet regarding their directions, but I was expecting that.

Thanks again for your help guys.

[Buster78]

Hi All, just a quick update. The Defendant didn’t reply to the courts letter, so the Judge made the following order…

Upon reading the file and noting the Claimants response to the Court’s letter of…

It is ordered that

The Defendant’s solicitors must reply to the Court’s letter of… by 23rd May 2011.

In the event the Defendant’s solicitors fail to reply, the Court will make such orders as it sees fit.

----------------------------------------------------

I haven’t received anything from them yet, but in the past they have waited until the last second, so they’ll probably fax it to the Court on the 23rd and post it to me the same day.

[caro]

Hmm. I wonder what the court might see fit to do if they don't comply.

 

I suggest that you wait until 24th, then phone the court to see if they've had anything, and if not, ask them what will happen now as they haven't complied with the courts order.

 

BTW, I hope your Dad's on the mend.

[Buster78]

Hey Caro, I would love to know what the Court would order (just out of curiosity) and we may find out! I have just got off the phone from the Court and they don’t seem to have received anything.

The woman I spoke to said it would now be referred back to the District Judge, but as he is only there on Tuesdays, it will be next week at the earliest. If the Defendant sends their reply before then I have a feeling the Judge will accept it.

My local County Court is due to close in September so I think the judge is trying to get all the cases sorted before then.

Thanks, he’s had a quadruple heart bypass but is now doing well.