Backdoor Excel windscreen PCN CCJ - Acknowleged defective machine - given code to put on windscreen - SA1 carpark in Swansea

[BankFodder]

This thread is a restart of an earlier thread which started to go badly astray and which is now locked.

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Assuming that you don't get the disclosure from Excel on Thursday, I suggest that you send them an email on Thursday evening telling them that they are now in breach of their statutory duty in respect of the SAR which you sent to them on X X X date and which was acknowledged by them and that they should now consider themselves on notice that if you don't have the disclosure within 14 days that you will issue proceedings against them in the County Court for damages caused by the distress of this data protection breach and without any further notice.

I would also send a reminding email to the DVLA immediately and tell them that despite the fact that you sent an SAR on X X X date, you have received no response – not even an acknowledgement and you are reminding them that the statutory deadline for compliance is X X X date (calculate 31 days after 6 April. Statutory period of 30 days – but give them an extra day.)

[BankFodder]

Yes but this is what came up in the other thread and dragged it down. We are going to try and link them together. At the very least, we have to wait for the SAR to establish exactly what has happened and proceed from there. If we can serve a claim for breach of data protection rules on Excel then this will make them sit up.

[BankFodder]

I believe that today's the day that Excel are meant to come back with the SAR.

Frankly I think that if they don't come back by close of business today then you should send them a letter of claim. No point in beating around the bush any more. They are well aware of the SAR request.

 

Quote

Dear X X X
I sent you a subject access request on X X X date. I received an acknowledgement and a further response relating to it on X X X date.

Despite this – and despite the fact that the statutory deadline for complying with a subject access request is 30 days, I have not received anything from you.
I would point out to you that under the data protection rules, 30 days is intended to be the maximum – not a working standard.

If I do not receive the disclosure from you within the next 14 days and I shall issue proceedings against in the County Court and without any further notice.

 

Please notice that the disclosure must be complete and if I receive an incomplete disclosure then I shall also be bringing the legal action against you

Yours sincerely

 

[BankFodder]

Email is fine – but you could follow it up with the letter if you want. In the letter refer to the email.

Incidentally, you are not sending this by way of a bluff. If you feel that you don't have the time et cetera to bring the action then don't send the letter. On day 15 you must be prepared to click this off. This means that in the intervening period you must read up a little bit on this forum about the steps needed to bring a small claim. You must register on the free government moneyclaim website and begin drafting your claim. You can save your work as you go. Post the draft claim here so that we can have a look. It's very simple it doesn't need to be very long. I would suggest that you claim 50 quid for distress suffered as a result of their breach. That will be enough to get the claim going and to put the ball very firmly in their court. Most big companies don't respond to a letter before claim – but in this case I suspect that once they receive it you will find that your disclosure arrives. However if it doesn't arrive or if it is incomplete then you must issue the papers.

[BankFodder]

Okay. As suggested, register an account with Moneyclaim and start getting your case ready. It will be very short. You don't need any special pompous form of words. Let us see the draft before you click it off.

Read up on the steps to bring a claim on this forum. It's very straightforward but you are better off knowing what happens.

What a nuisance. These people are really stupid time wasters. They don't have the good sense to recognise their mistake and sort it out before it gets out of control.

[BankFodder]

When you get an SAR disclosure, then it would be a good idea if you had a look at these suggestions we have made relating to dealing with a subject access request disclosure or how to deal with your court bundle. This will help you structure your approach

[BankFodder]

Hopefully there should be some references as to how they came by your address, any interrogation they carried out of the DVLA database. There should also be copies of correspondence which has been sent to you over the years in order to chase the alleged debt. There should be evidence that they have satisfied the pre-action protocol and at least have sent you a letter of claim.

Also, the subject access disclosures from DVLA and also from ELMS legal should also reveal or give a hint as to other missing material.

 

[BankFodder]

Also, does the disclosure contain any information relating to the exchange between you in which Excel demanded payment of £155 in order to provide you with a signed consent order?

[BankFodder]

The file should also include copies of your emails as well as theirs. Just because the emails came from you doesn't mean that they are not personal data

[BankFodder]

Maybe it's worth holding fire. There's no particular hurry and you never know the DVLA disclosure might turn up something useful.

[BankFodder]

Yes absolutely. Do you have an email address for them?

I think that it is probably worth sending them quite a stern message. Would you be prepared to begin a legal action against them? I think it all depends on that kind of thing, quite frankly. People who aren't prepared to bring legal actions have to resort to complaining to the ICO and eventually getting into a queue and when eventually they get to the head of the queue, hardly anything is done.

It's certainly worth sending them a reminder but unless you're one of the fraction of a percentage of person that is prepared to take it to an extreme length – meaning a small claim in the County Court – you will just be seen as troublesome but of no import.

[BankFodder]

Quote

Dear X X X

SAR reference number X X X

I am writing in support of my subject access request which was made on X X X date and in respect of which I have to date received no response.

I understand that the DVLA is presently under resourced because of the continuing crisis. However, I would ask you to consider that firstly I am a key worker in that I occupy a position at X X X in X X X role.

I need the statutory disclosure rather urgently because I am currently involved in a legal action and to defend it I need data which you hold on me in respect of changes of address and date of those changes which were made in respect of my vehicle registration number X X X.

I'm asking for this data because the claimant in the case incorrectly addressed a county court claim against me and as a result obtained a default judgement without my knowledge. This has impacted my credit file and my ability to get credit in these difficult times as well as the distress caused by the fear of enforcement for what is effectively an unfair default judgement.

I am not asking you for all data which you hold on me – simply data relating to the address changes logged with you in respect of my ownership of the above vehicle – registration number X X X.

Yours sincerely

 

[BankFodder]

I think also in view of the DVLA delay, that it might be an idea to take up your suggestion which you made a few days ago to send Excel a complaint that there SAR is not complete.

I think things are starting to drag on because of the virus crisis and I think that maybe it would be a good idea if you move it on.

 

Would you mind just listing here the items which you consider are probably missing from the Excel SAR.

[BankFodder]

Okay, well we will draft a letter but we don't want to give them too many clues. We just want to make them realise that they haven't complied with the Act.

Are you prepared to bring a small claim for a modest amount of compensation for distress caused by their failure to comply with the act?

[BankFodder]

Suggested letter to Excel parking
 

Quote

Dear X X X

Letter of Claim


As you know, on the X X X date I served you with a Subject Access Request under the Data Protection Act. This requires you to make full disclosure of all personal data you hold on me within 30 days.

In the event, I received a disclosure of certain personal data from you but on examination of the file and having compared it also to my own experiences, subject access request from ELMS legal and also from the DVLA, it is clear that the data disclosure which you have provided to to me is incomplete.

I'm sure you must realise that my subject access request requires you to produce all data that you hold on me and therefore your partial disclosure puts you in breach of the Act.

I'm considering taking legal action against you. Your breach of your statutory duty was complete at the expiry of the 30 day time limit for providing full disclosure and so therefore you have no defence to a possible action.

However, I'm giving you a further 14 days to provide me with a full disclosure of personal data. If you feel that you have complied with the Act and provide me with all the data that you hold on me then please state this unequivocally in writing – although on the evidence that I have before me, it is clear that this is not the case.

 

I have already pointed out to you that I am a frontline worker involved in the fight against the corona virus crisis and so apart from being an unnecessary distraction, your failure to comply with your legal obligations towards me are exacerbating the level of distress which I'm experiencing in any event.

If I do not receive a full disclosure which you hold on me within 14 days then I shall begin a legal action against you in the County Court and without any further notice.

Yours sincerely

 

Maybe you would like to check this. Suggest any amendments – make corrections. Please let me know if you make any substantial changes.

Also please bear in mind that you are now giving them 14 days to comply and this means that if they do not comply then on day 15 you must issue the papers. If you do not intend to do this or if you have any doubts as to your time constraints then it may be better not to make the threat. Don't bluff. You will only lose credibility and bring comfort to the company.

However, I think it is time to show that they are dealing with somebody serious and who is prepared to assert control and so I would urge you to proceed.

If you're happy to go along with this then you should send the letter and then spend the next 14 days reading up the steps about bringing a small claim in the County Court. It's not difficult but it is worth understanding how it works because that will give you greater confidence.

Also, you should register with Moneyclaim online and start drafting your claim there – but post up your proposed particulars of claim here so that we can have a look. It doesn't need to be at all complicated and doesn't need any special form of words. You can save your work as you go along.

On day 15 click it off and send them the good news.


 

[BankFodder]

Any update on this please?

[BankFodder]

Thanks. Yes probably a good idea to get the paralegals attention as well.

Send everyone a copy – and then they can't pretend they didn't get it.

[BankFodder]

I think it will be worth while sending him a final letter explaining a few of the things which are clearly missing.

 

Dear X X X

Thank you for your confirmation that you have furnished me with all of the data which you hold on file. My records suggest very differently. For instance, there is no communication with ELMS legal to whom you sent the papers in order to bring an action against me.
I have received a statutory disclosure from ELMS legal which shows that there was communication between you but any evidence of this communication is missing from the disclosure which you gave me.

Also, there is no reference to the steps you took to ascertain my address in order to bring the legal action against me. Yet you brought a legal action against me and used an address.

 

Additionally, there is no correspondence or notes referring to the communication I had with the paralegal - Ambreen – save for a record of the communication in the log which was supplied – but no copies of the actual communications. Do you want to say that these communications have since been destroyed?

Do you want to have a further investigation or do you want to confirm that you are absolutely sure?

I hope you can see that I am bending over backwards to give you an opportunity to doublecheck that you have not breached your statutory duty to disclose all data. The evidence certainly suggest that you haven't.

Yours sincerely

[BankFodder]

I think that we are getting close to the point where you are going to have to sue them for breach of contract and also for abuse of process.

The breach of contract would be on the basis that you had paid your money into the machine and done all you could have done in order to carry out your side of the bargain. On the other hand, they failed to carry out their side of the bargain in that they did not allow you to leave your vehicle undisturbed and they caused you serious problems for a considerable time afterwards.

The abuse of process would be that they then "sold" you a consent order for £155 as a means of enforcing the judgement and also in the belief that your concern was to clean up your credit file – but also when in fact it was clear that the judgement which they had obtained against you was unfair because the proceedings had been wrongly addressed and secondly because you had performed your side of the bargain.

Are you happy to go along that route?

 

We could tack on the breach of the SAR at the same time for a very modest additional amount of damages for the distress, say, £20.

[BankFodder]

OK - but the second letter was only sent a day ago.  Let's see if there is any response by the weekend

[BankFodder]

By the way, in addition to no evidence as to how they came by the incorrect address, can you remind me – is there any evidence in the statutory disclosure of attempts to correspond with you in relation to the penalty charge and is there any evidence in the statutory disclosure that they attempted to comply with the pre-action protocol by giving you notice of a forthcoming legal action?

[BankFodder]

I suppose that you will find at some point – but it certainly looks as if they obtained the correct address from somewhere – DVLA – and then somehow or other made the mistake themselves.

What you have found is excellent evidence that – and that is what we are looking for.

This strongly suggests that their error which resulted in any correspondence, any pre-action protocol and any claim documents being sent to the wrong address – which once again is evidence that the default judgement was manifestly unfair – apart from the fact that you had paid the money for the car parking anyway.

The fact that they are now standing by their initial statutory disclosure suggests very strongly that there was no other correspondence to you including no pre-action protocol – not even to the incorrect address.

They are either going to have suddenly to produce those documents and then admit that they breached the statutory disclosure – or else they are going to have to stand by their position that the disclosure is complete and that they did not comply with any pre-action protocols.

Either way, they've made a mistake

[BankFodder]

Thanks. Of course I had forgotten that ELMS legal are involved. Did they satisfy any of the pre-action protocol? Does their SAR contain any evidence of correspondence or letters of claim?

 

[BankFodder]

Yes, I think you should drop ELMS legal an email and tell them that you are concerned that the SAR disclosure which they made on X X X date may not be complete because it doesn't seem to contain anything relating to instructions which they received from their client Excel and it doesn't contain any evidence of any correspondence or any compliance with the pre-action protocol before they launched the legal action.

Tell them that on that basis, that they should confirm that the file is complete and that this correspondence did not occur – or else you will have to assume that the disclosure is not complete

[BankFodder]

Unlikely, but if they have then they should certainly be reference to it in their SAR disclosure