Very Old Barclaycard Charges ***Settled by way of Tomlin Order***

[craigten]

Not really answering your question but aren’t they infringing / breaking GDPR by effectively saying they ‘might’ have your data but can’t be sure?

HSBC did this with me and paid me £750. Worth pushing back on this?

Edited November 26, 2019 by craigten

[tnook]

Attaching the PDF of their witness statement. @BankFodder @Andyorch any ideas on how to counter this? Court date is next week, just got their witness statement.

tnook.pdf

[slick132]

I've asked for further input for you from Site Team.

[tnook]

Thanks Slick!

[AndyOrch]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part33#33.2

 

The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph. They must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

http://www.legislation.gov.uk/ukpga/1995/38/section/2

[tnook]

Thanks Andyorch, does this mean they can't rely on the hearsay evidence since they served no notice?

Also reading those links I should be able to cross examine the hearsay witness if I am not wrong?

 

Is there a real risk they can claim costs?

I have offered to settle and attend mediation and they ignored me.

So I have tried.

 

They set a 'deadline' of 14:00 tomorrow (27th Nov) settle and accept the £150 or they will pursue costs at the hearing.

 

[tnook]

I questioned the notice of hearsay and their solicitor responded:

 

We can confirm that we served the notice of hearsay on yourself and the court on 26 November 2019  (copy attached). The notice can be found on the first page of the document.

 

The Banks offer of £150 in full and final settlement of your claim, remains open until 2.00pm on Wednesday 27 November 2019. Please therefore confirm whether you are willing to accept the offer of £150,  following which we will prepare a draft settlement agreement for your consideration.

[noomill060]

If they ask for costs they will be disappointed. Costs are not awarded in Small Claims. Fear not.

[tnook]

I just replied to their solicitor:

 

Without prejudice save as to costs and subject to contract

 

Dear XX,

 

My claim about the cancelled mediation is direct feedback from the mediation service who when I tried to confirm the session informed me you had withdrawn from mediation and it was being passed back to the courts.

 

When I was asked for clarity on the missing data I did reply and your solicitor replied to my email saying she would ask the bank to find the data. Your assertion that I did not reply is wrong, I will be happy to provide evidence.

 

In September I further wrote to you to ask for clarification and discuss settlement. You ignored this and did not respond.

 

Barclays have previously claimed not to have my data and then later produced it. There are other precedents where Barclays have withheld statements until court action has required they be produced. I am an IT Consultant and have worked with several organisations on preparing for GDPR. I would likely want to cross examine your witness to establish the nature of the data storage and the relevant referencing system.

 

[AndyOrch]

So they did...... its page 1 of the witness statement.

 

With regards to costs...costs are a small risk and could possibly be given in Small Claims Track...albeit Fixed Costs.

 

https://helix-law.co.uk/business-law-blogs/what-costs-can-be-recovered-on-the-small-claims-track/

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14

 

Andy

[tnook]

If I settle. Does that mean I can’t bring a claim to get the statements again at a letter date?

 

I’m just aware of the time left and since they say they might have the data but can’t reference it. I might need to to work out a way to ask them to prove how they can’t access it. Why would a bank delete or forget a way to access their own data?

[noomill060]

Yes, if you settle you wont be able to reopen your claim.

 

[tnook]

Their whole defence is around their old microfiche system is no longer indexed. They can’t access the records because there is no way of linking my account numbers to their reference. 
 

I need to find a way around this or we will never get legacy statements from Barclays. 

[tnook]

So they admit having a database (microfiche) with personal data that is over 6 years old that they can’t use. Isn’t this wrong. Surely they are not supposed to keep data and should delete it. I should ask what the purpose of the microfiche ‘beyond use’ database is. 

[AndyOrch]

All perfectly valid arguments...so what have you decided....?   Settle or proceed ?

 

Have they served you their anticipated costs bill yet ?

 

Andy 

[tnook]

No they haven’t. They’ve given me till 14:00 to settle. Really want to fight it. But not sure. 

[craigten]

I sincerely hope you fight it.

my experience with ICO is that if an organisation say they’ve got the data ‘somewhere’ means that they have it. Period. 

[tnook]

Just asked the solicitor:

 

Is it unclear why Barclays have a significant data source (microfiche) full of personal data that is ‘beyond use’. What is the purpose of retaining this data source. Data that of this type is supposed to be deleted. 

[tnook]

Is their 14:00 deadline something I need to worry about or can I push back on their timeframe. 

[AndyOrch]

Im alway suspicious when a timeframe is imposed...mediation and settlement is and should be available up until the hearing day if genuine..Of course if you were to settle they would not need to instruct counsel to attend.

[tnook]

I just wrote and said I can’t commit to a 14:00 deadline. As I am in meetings. Which I am. 

[tnook]

On the ICO website I found a document about putting data beyond use. This data is not subject to a SAR request. But it must be provided in response to a court order. 
 

So I need to establish a way to search the data source. 

[tnook]

Their solicitor just replied:

 

Dear xx, 

 

To clarify, not all of the data held on microfiche is ‘beyond use’. As we have previously explained, the microfiche storage system uses references locate documents on a particular tape. This is followed by a manual search of the microfiche records based on the reference.  For some customers, such a reference is retained, and the Bank can locate personal data in the microfiche system. However, for other customers, such as yourself, and especially where the relevant account has been closed for an extended period, this reference number is no longer available. The lack of reference number means that the Bank cannot locate your documents.

 

As a result of the time that has elapsed since the creation of the documents you have requested, there is no longer any billing date reference available that would allow the Bank to search for the documents. 

 

In any event, any requested documents dated prior to January 2001 are not available because the microfiche system only holds statements from 2001 - 2004.  

[tnook]

Think I’m losing this one. 

[Old Cogger]

Their problem???