Tesco Bank - CIFAS Placed 2016 - Advice On How To Handle?

[L33noa]

do they not have 1 calendar month to get the SAR to me?  I sent your letter on 16th March 

[L33noa]

Hi 

See attached reply from Tesco 

Final letter.doc

[L33noa]

Id like to continue to small claims route and keep going - no they have never offered compensation for failing to observe the procedures?

 

 

I never reported it to the Police but I did register it with Action Fraud 

 

[L33noa]

Happy and ready to continue and take any intimidating correspondence that comes my way.

 

I will go through the BCOBS and get my head around this as quickly as I can. 

 

I have a reference number from Action fraud who last updated on 2nd April 2021 - We have reviewed your case and have not been able to identify a viable line of enquiry. If you have further information with respect to your crime and have not yet provided it please update your report.

 

Is it worth sending a letter to Tesco now with our intention to proceed under unfair treatment under BCOBS or now procced straight to submitting claim in small courts?

[L33noa]

I will do , thanks, one quick question as I've just looked do we lodge the county claim in the English or Scottish court? as Tesco Finance head office is based in Edinburgh? does this complicate things?

 

Thanks again 

[L33noa]

it was online but I live in England, its only when you go through the claim it asks ; 

Does the person or organisation you’re claiming against have a postal address in England or Wales?

[L33noa]

ok thats good. thanks. i will get reading the BCOBS stuff and drop a message back here end of the week if thats ok then 

[L33noa]

I've trawled through the BCOBS material which is a mine field in its self! So, I hope I am the right track. As always, your help and guidance is appreciated greatly!

 

I see below possible causes for action.

 

BCOBS 

a. Failure to communicate properly

 FOS found that Tesco took the decision to place the markers and close the account without ever speaking to me.

 

Tesco have acknowledged that they have not acted in compliance with the GDPR in this case as they did not discuss their concerns with me before the CIFAS marker was applied

 

Tesco Bank have accepted that this was not fair and have now changed their process as a result in order to prevent any reoccurrence of this issue.

 

PRIN 2.1 The Principles

A firm must pay due regard to the interests of its customers and treat them fairly.

 

FOS found that Tesco bank did not carry out a sufficient investigation thus not treating me fairly.

 

Tesco have acknowledged that they have not acted in compliance with the GDPR in this case as they did not discuss their concerns with me before the CIFAS marker was applied

 

failure to produce the review which effectively recommended that the marker was not placed against you – was unfair. – Tesco have found that “we’ve not been able to locate a copy of this email”

 

failure to produce new DSAR – Tesco response - “a full new DSAR. Under the GDPR regulations there’s no requirement for us to provide you with information/documentation we’ve already sent”

 

 

BCOBS 5.1 Post sale requirements

5.1.1

 

Failure to follow correct procedure and rules – ICO and FOS findings on unfair treatment

 

Notes;

 

Also, I was thinking surely, they should have made the account dormant it was never used and hadn’t been for well over a year.

 

Tesco permitted a payment to be paid out of the account even though the account was unused for a considerable period and had no pattern of funds going into it. Was irresponsible for the Tesco to pay out against what was essentially a dormant account leading to personal data been processed unfairly resulting in a CIFAS being being filed

[L33noa]

I can see you can submit it online or a paper copy with a fee dependent on the amount of claim

I have set up an account to do it online or is it better to do a paper version? 

[L33noa]

Morning hope you have had a good weekend

 

What's the next step now for me please @BankFodder

[L33noa]

that's great thanks I will get onto this today. so to be clear i now go straight to the small claims (which i can do online) and I dont need to send a letter prior to Tesco informing of my intentions? 

[L33noa]

Quote

 

Dear Sir/Madam

 

Letter of Claim

 

I am writing in compliance with the practice direction on Pre-action conduct with regards to the following matter which have arisen between us:

 

On 10th October 2016 you treated me unfairly by placing CIFAS entries against me with the relevant authorities.

• Tesco Bank have treated me unfairly and not acted in compliance with the GDPR in this case as you did not discuss your concerns with me before the CIFAS marker was applied. 
• Tesco bank did not carry out a sufficient investigation thus not treating me fairly
• Failure to produce the CIFAS review which was unfair.
• Refusal to produce new DSAR requested 16th March 2021.
• It was irresponsible for Tesco to allow the account to be used fraudulently on what was essentially a dormant account. The account was unused for a considerable period of time and had no pattern of funds going into it.
• Tesco Bank have acknowledged that they have not acted in compliance in this case as they did not discuss their concerns with me before the CIFAS marker was applied treating me unfairly.
• Tesco Bank have accepted that this was not fair and have now changed their process as a result in order to prevent any reoccurrence of this issue.
• ICO have considered the information available in relation to this complaint and are  of the view that Tesco Bank have not complied with their data protection obligations.
• Tesco Bank failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied.

This is a breach of your statutory obligation under BCOBS, which require you to treat your customers fairly and to have regard to their interests when making your decisions.

 

Furthermore, you have breached Principles 4 and 6 of the Data Protection Act

 

I am giving you an opportunity to address these concerns within 14 days. If you fail to do so then I shall see you in the County Court and without any further notice.

 

As a result of these matters I am entitled and intend to claim for compensation

 

In addition, I also claim the that the CIFAS markers are removed with immediate effect and erased from my personal records.

 

If you dispute my claim, I can confirm I would be agreeable to mediation and would consider any other system of alternative dispute resolution (ADR) in order to avoid the need for this matter to be resolved by the courts.

 

In this regard, I would invite you to put forward any proposals.

 

I look forward to hearing from you within 28 days. Should I not receive a response to my letter within this time frame then I anticipate that a legal claim will be commenced forthwith

 

Yours sincerely faithfully

 

 

 

[L33noa]

Hi @BankFodderthoughts on proposed letter please? am I on the right track with that?

Many thanks 

[L33noa]

Thanks for the edits I will send today with those proposed edits

so to be clear in my head once the 14 days has passed from date of the letter I submit the claim online

 

I am ready for the fight and want to continue I have battled them for nearly 4 years i don''t want to give up now! 

 

thanks for the support as always 

[L33noa]

these were my notes re the court action I just wanted to make sure wasn't missing anything, 

 

1.     Issue a letter of claim (28^th April) giving 14 days before the issue of the proceedings

         Ø  no response by 13^th May ----> move to Step 2 or…

         Ø  See what response I receive

2.     Claimant sends a claim form using MoneyClaims online on 14th day if no response (13th May)

3.     Defence or an acknowledgement of service must be filed with the Court within 14 days of receiving the claim form

         Ø  If an acknowledgement of service is filed, the Defendant then has 28 days from service of the claim to file a defence.

         Ø  If no acknowledgement of service or Defence is filed within the time permitted an application for judgment in default can be made by the claimant

 

Note:

When the Court receives a defence it will send a copy to the Claimant, the claimant will have 28 days to respond and you will be informed of this on notice form the court.

[L33noa]

@BankFodderi have attempted a first draft POC please can i get your thoughts , am i on the right lines ? I need to add costs etc but at this stage i wanted to make sue i had the content idea right first many thanks as always  

 

Those sentences in red are the ones I am unsure of the wording or what would have biggest impact I have tried to lok for someguidance here but its difficult to find. 

 

 

IN THE XXX COUNTY COURT

 

 

Between

                                                                                                          Lee XXXXXX - Claimant

  

 

 

and

 

  

 

Tesco Bank - Defendant

 

 

 

 

Particulars of Claim

The claimant Mr Lee XXXXX of United Kingdom

 

The defendant is a firm regulated by the FSA under the Financial Service and Markets Act 2000 and as such is subject to the Banking:Conduct of Business Regulations (BCOB) 2009 which requires among other things that firms treat their customers fairly (R.5.1.1).

The defendant is also subject to the General Data Protection Regulation & The Data Protection Act 2018. Aswell as abiding by National Fraud Database Principles.

 

From 28^th February 2015 – 11^th November 2016 the defendant supplied current account services to the claimant - account reference number Sort code 40-64-20 – Account number 10139362 - subject to contract being the “General Terms and Conditions – Current Accounts and Savings Accounts (including Cash ISA’s) and the implied conditions of contract contained in the Banking:Conduct of Business Regulations (BCOB) 2009 and the Payment Services Regulations 2009.

 

In breach of contract and their statutory duty to the claimant, the defendant acted unfairly in that they:

°       Have not acted in accordance with GDPR regulations as you did not discuss your concerns with me before the CIFAS marker was applied

°       Have not carried out a full and sufficient investigation as found by the Financial Ombudsman service dated 12^th November 2019

°       Failed to demonstrate enough to apply for the CIFAS marker as found by Financial Ombudsman service dated 12^th November 2019

°       Failed to produce under SAR request the CIFAS review document highlighting the decision to place the marker and overrule a previous decision

°       Failed to provide me with a FULL DSAR request

°       Acted Irresponsibly by not recognising “a sudden increase in spending”, (No previous transactions on the account) and “a payment to a new Payee”.

°       Have not acted in compliance to discuss their concerns with me before the CIFAS marker was applied acknowledged by Tesco themselves

°       Have failed to follow their own internal process and procedures as in normal in these cases

°       Have not complied with their data protection obligations as found by Information Commissioner's Office dated 3^RD July 2020

°       Failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied

°       Failed to communicate to the claimant in that The Claimant was unaware of the CIFAS marker for 2 years

°       Failure to communicate to the claimant giving no opportunity for the Claimant to defend and allegations or assist with any enquires or allow the Claimant to report to the Police

°       Failed to meet the National Fraud Database Principles in particular those below:

* Principle 3: Transparency - Subjects have a right to know how data will be used and how any decisions related to them have been made.

* Principle 4: Lawfulness (Searching and filing) - Subjects must only be searched and filed if they have been legally informed of how their data may be used via a Fair Processing Notice

* Principle 4: Lawfulness (Standard of Proof) - Cases filed to the National Fraud Database must be supported by evidence and meet the ‘four pillars’ of the Standard of Proof. The Standard of Proof Pillar 2 has not been met.

That the evidence must be clear, relevant and rigorous such that the member could confidently report the conduct of the Subject to the police.

 

By virtue of the above unfairness the claimant has suffered loss, inconvenience, and defamation.

 

Particulars of loss

Cost of Telephone Calls - £

Cost of Transcription - £

Cost of Postage and Special Delivery £

Cost of Research £

 

Total - £

Particulars of inconvenience

The claimant has had to spend much time in dealing with the defendant by telephone calls & correspondence.

 

Particulars of Defamation

 

The claimant has suffered immense distress as well as being unable to obtain basic credit facilities, the Claimant has had credit facilities removed and cancelled, Insurance products cancelled and has had to decline job opportunities as a result.

 

 

And the claimant claims £XXX compensation for actual loss plus damages not exceeding £XXX for inconvenience to be decided by the court plus damages not exceeding £XXX for defamation plus exemplary damages as the court sees fit plus interest pursuant to s.69 County Courts Act 1984

 

 

I believe that the fact laid out in this particulars of claim are true

 

 

Signed

 

 

 

Date

 

[L33noa]

Morning as expected no reply from Tesco, tomorrow id the 14th Day (due to bank hol)

 

I have taken note of your amends and this fits into the money claim limit.  I have saved the form ready to send first thing tomorrow. 

 

I will go for claim amount of £500 as this only asks for a £35 fee. 

 

anything else I need to know at this stage?

 

Many Thanks 

[L33noa]

In breach of contract and their statutory duty to the claimant, the defendant acted unfairly in that they:

·       Have not acted in accordance with GDPR regulations as you did not discuss your concerns with me before the CIFAS marker was applied

·       Have not carried out a full and sufficient investigation as found by the Financial Ombudsman service dated 12^th November 2019

·       Failed to demonstrate enough to apply for the CIFAS marker as found by Financial Ombudsman service dated 12^th November 2019

·       Acted Irresponsibly by not recognising “a sudden increase in spending”, (No previous transactions on the account) and “a payment to a new Payee”.

·       Have not acted in compliance to discuss their concerns with me before the CIFAS marker was applied acknowledged by Tesco themselves

·       Have failed to follow their own internal process and procedures as in normal in these cases

·       Have not complied with their data protection obligations as found by Information Commissioner's Office dated 3^RD July 2020

·       Failed to meet their obligations under the GDPR in this specific case with regard to fairness and transparency, prior to the CIFAS marker being initially applied

·       Failed to communicate to the claimant in that The Claimant was unaware of the CIFAS marker for 2 years

·       Failure to communicate to the claimant giving no opportunity for the Claimant to defend allegations or assist with any enquires or allow the Claimant to report to the Police

·       Failed to meet the National Fraud Database Principles in particular those below:

* Principle 3: Transparency - Subjects have a right to know how data will be used and how any decisions related to them have been made.

* Principle 4: Lawfulness (Searching and filing) - Subjects must only be searched and filed if they have been legally informed of how their data may be used via a Fair Processing Notice

* Principle 4: Lawfulness (Standard of Proof) - Cases filed to the National Fraud Database must be supported by evidence and meet the ‘four pillars’ of the Standard of Proof. The Standard of Proof Pillar 2 has not been met:

That the evidence must be clear, relevant and rigorous such that the member could confidently report the conduct of the Subject to the police.

[L33noa]

I am happy to be led by your expertise and judgement on this. I have never been down this road before so your guidance is much appreciated happy to revise it if you think it will be more effective. 

[L33noa]

Yes I am more than happy with this if you feel its a better approach   the name was Tony O'Donnell which i can amend 

 

                                                               

[L33noa]

I've submitted the claim 

[L33noa]

well lets see what happens now I suppose. you would think given the ICO and FOS have and Tesco them selves acknowledged the investigation was flawed that some common sense will prevail. but like you say who knows it may well stir up a hornets nest instead. 

 

claimed for £500 as that was only £35 to do that 

[L33noa]

Thanks I will keep you informed - fingers crossed! thanks your all your help so far 

[L33noa]

**Update**

 

Tesco yet to issue any response. 

2 working days left to do so.

[L33noa]

on Deadline day and Tesco has responded asking for extra time to respond. 

Tesco Bank has been given an extra 14 days to respond to your claim.

They need to respond to your claim before 4pm on 21 June 2021.