Express Solicitors @ExpressSols- Breach of Contract, court summons *** Claim Dismissed - with costs!!!***

[Stormy1976]

Thank you for your  thoughts. There’s a lot to consider with this case. 

[Stormy1976]

Hi all

 

Just a bit of an update.  I am about to submit my defence, which will be posted this week end ready for Monday, and this morning I received an email response to my SAR request from Express Solicitors.

 

I am not satisfied with their response and the information provided based on my request, and would appreciate any thoughts on this.

 

I am uploading the two documents sent by express today. The second attachment is supposed to contain the information they have provided in response to the SAR- however i specifically requested details of all of my records, telephone calls with them, communication etc.

 

I am unhappy with the information received from Express solicitors.   I will certainly look at the ICO for guidance too but would appreciate thoughts on here.  

 

Many thanks

 

 

sar reply.pdf

[London1971]

They are making fun of you.. Report them to the ICO. Total failure under GDPR.

 

This is why I said in the first place to contact the managing partner because he is the one who should be poo ing his pants about a massive bankrupting fine. Not the Straight out of university lackey who is dealing with your case

 

Actually I’d be onto him explaining why you

reported him and exactly what is required! 

[Stormy1976]

Thanks for your response @London1971,

 
Yes I will report them to ICO. I will write to Managing partner as well tomorrow- but I am not holding my breath as the firm seems to be rotten, the person who's dealt with the  response to my SAR is in fact a partner at the firm and yes larky...how embarrassing and I can't believe I am dealing with such bullies.

 

And before anyone says I am being harsh, this is precisely why I couldn't handle them any more - because of the way they conducted business, called like sharks, were rude on the phone- particularly their legal executive who dealt with the case.

 

I have believed in the British judicial system and  that only the best and those with a high degree of honesty go to study to become lawyers and work in a law firm, but this is not the case.

Ok now off  to the ICO website.

[Manxman in exile]

I don't think there'll be any self-soiling going on.

 

AIUI, a SAR request can be refused if the person/organisation it is addressed to considers that the dominant purpose of the SAR is for use in litigation.  So the solicitors obviously do not need to comply with it as the request would not have been made but for the threatened action.

 

Stormy - presumably you've either decided not to try to negotiate a settlement (or restart the claim with Express), or you have, but they won't play ball?

 

Presumably you think you have good grounds on which to base a defence?

 

Stormy - we've crossposted!

 

Before complaining to the ICO you may first want to check whether what I've suggested above is correct.

 

EDIT:  FWIW, I see nothing in their reply to you to complain about.  They are simply suing you for money they think you owe them under the NWNF agreement you freely entered into.

[Stormy1976]

Hi @Manxman in exile and thank you.

 

No I haven't contacted them at all. 

In fact, I did consider it, for a very brief second- and that was yesterday- but so glad i went with my gut instinct which told me not to-  as subsequent to that, i received the SAR response- which has even more reinforced my thinking that  I will go ahead to defend the case.

 

 

[Manxman in exile]

Before you do anything else I would check whether they were obliged to respond to your SAR if they consider it's for your use in litigation - which it obviously was.  I may be wrong, but I think they are entitled to ignore it.

 

I think you may also be making the mistake of taking this too personally because you don't like the approach they are taking.  Again I see nothing wrong in the tone of their response to you.

 

I think you need to consider what your defence is going to be based on - just saying "I think they're bullying me" will get you nowhere.

 

I think you may have rejected the idea of settling (or reactivating the original claim) a bit prematurely.

[Stormy1976]

@Manxman in exile  No- the defence will not based on they are bulling me! Good grief, the defence will be on other matters - primarily of their business conduct which became unbearable,  including their bullish attitude.

 

I have checked the exemption rules from ICO and I have emailed ICO with my reason for complaining.

Edited July 21, 2020 by Stormy1976

[London1971]

Law enforcement exemption = police, border force, maybe Customs and Excise, HMRC.

Not a slightly disreputable, regional bunch of ambulance chasers.

 

Report them!

 

 

[Manxman in exile]

I'm not thinking of law enforcement, I'm thinking about making an SAR where the dominant or sole reason for doing so is for the information to be used in litigation.  I was pretty sure the High Court had held that SARs made in those circumstances could be ignored.  It's not a statutory exception - it's judge made.

 

There are ways of getting disclosure in civil proceedings , but it's not by a SAR.

 

But I might very well be mistaken.  (However, that would mean the solicitors were mistaken too, which seems unlikely to me if they are in the middle of suing Stormy - They'd have to be very incompetent to ignore a SAR they are obliged to comply with during legal proceedings.  It's not as if they're only threatening to sue - they are).

 

If I were Stormy I'd want to find out what the definitive answer is in respect of a SAR in these circumstances.

 

Stormy - seriously, how does their "bullish attitude" strengthen your legal defence? 

Their attitude and their behaviour is legally irrelevant. 

It's going to depend on the terms of the NWNF agreement you voluntarily signed up to, and if it says you are liable for their costs and expenses to date in the event that you decide to discontinue the original claim, that's what you need a defence against*.  I think you need to forget what you perceive as their bullying/harassing/annoying behaviour, because even if they had behaved like that, it's not relevant.

 

As I posted earlier on this thread,

my main concern is that you don't come away from here having only read posts that seem to be encouraging you to defend this claim because the solicitors haven't answered a SAR, or because people don't like solicitors and have had bad experiences with them in the past, or because the consumer must always be right.  I'm simply saying you may not be in as strong a position as some others may be suggesting, and I think you shouldn't lose sight of that.

 

*I haven't read back through all the thread, but that's what I seem to recall this is about.  Apologies if I've got the wrong end of the stick.

 

PS - are you intending still to pursue the original accident claim yourself?

 

 

[Ganymede]

5 hours ago, Stormy1976 said:

Thanks for your response @London1971,

 
Yes I will report them to ICO. I will write to Managing partner as well tomorrow- but I am not holding my breath as the firm seems to be rotten, the person who's dealt with the  response to my SAR is in fact a partner at the firm and yes larky...how embarrassing and I can't believe I am dealing with such bullies.

 

And before anyone says I am being harsh, this is precisely why I couldn't handle them any more - because of the way they conducted business, called like sharks, were rude on the phone- particularly their legal executive who dealt with the case.

 

I have believed in the British judicial system and  that only the best and those with a high degree of honesty go to study to become lawyers and work in a law firm, but this is not the case.

Ok now off  to the ICO website.

Report the to the ICO on what grounds? 

 

What specific paperwork did you ask for? 

 

You are not entitled to the entire file of papers under a SAR and the Civil Procedure Rules cover disclosure of documents in litigation. 

[London1971]

They have given her nothing. 

 

Not saying that any of this will make any difference to the OP’s defence though.
 

As an aside she has nothing to lose by reporting them to the ICO, that she was not given what is requested in the text of an SAR.

 

Personally , I’d be all over them like a rash on everything, alongside filing a defence. Managing partner, ICO, Social Media. Anything to make it less worthwhile for them to pursue me for a few measly grand.

 

Lets face it , the exemptions on GDPR are incredibly murky and a complaint might just have some traction.

 

 

[Stormy1976]

Hi @Ganymede

 

I didn't ask just for my file from express-  I made it very clear in my letter that I wanted records and transcript of my telephone calls with the organisation .

 

I have just been advised by the ICO (and i have explained my case to them) that the above information- records of dates of phone calls and transcripts -  fall under the Data Protection Act and that the organisation must comply with the request.

 

The ICO has advised that I go back to Express today and if they don't provide me with the information - as I am running out of time too- I need to go back and file  a complaint with them- which they are happy to investigate.

 

The ICO explained that in cases like this some solicitor firms submit a response to buy time and they don't expect the requestor to go back to them- as they can just claim that they are covered by the exemption rule.

 

 

 

 

[Manxman in exile]

They've given her nothing because they don't believe the Act entitles her to see what she's asked for.  They specifically say so in their response to her.  I see nothing to complain about in the tone of their response (this is after all in the middle of litigation) but Stormy feels so offended by it that it made her decide not to approach them with a view to negotiating a settlement.  I think that that is ill advised and would counsel her to re-consider.

 

As I've already pointed out, and Ganymede has reinforced, there are ways of getting disclosure during litigation via the civil Procedure Rules, and I suspect the view of the courts would be that that is the appropriate way to do this, and not through a SAR.  (I'm not a lawyer but is it Rule 31?  I don't know.)

 

If I were Stormy I'd be questioning why a firm of solicitors who have initiated legal proceedings against me have refused to answer a SAR I submitted, which I think they are legally obliged to answer.  I might conclude that they know more about the law than I (and perhaps you) do.

 

What worries me is the possibility that all this is giving Stormy a false reassurance that she has a winnable defence.  Her winning this case will depend on persuading a judge that she has a good defence.  It's got nothing to do with how SARs were dealt with, or whether the OP has been suffering from depression or anxiety, or whether her perception of "bullying" is correct.  She won't win because you or I feel sorry for her.  She'll only win by demonstrating to the court that she was not in breach of contract.

 

I've got no problem with suggesting that she has nothing to lose by complaining to the ICO or initiating some sort of social media assault, but (1) I think there's a danger of focusing on that diverting her from the main task of putting together a sound legal defence, and (2) what is the likelihood of success?  You've already admitted in #105 that you'd take a gung ho and optimistic approach even if you had only a 10% chance of winning.  Well that may be all very well for you, but unless you clearly spell that out for the OP every time, I'm not sure it's a very responsible approach and I think there's a very real chance of misleading her.

 

I'm also a bit concerned that your own apparently jaundiced view of lawyers might not be helpful to Stormy in this instance.

 

EDIT:  We've cross-posted.  OK - if the ICO think that there's no exemption whilst in the middle of litigation I'm clearly wrong.  See what you can get out of them.

Edited July 22, 2020 by Manxman in exile
ICO says I'm wrong!

[brassnecked]

Perhaps the ICO is concerned that ambulance chasers among other bad actors, are using litigation to reinforce demands for money that a claim for is dubious, and are using Litigation as a way to avoid providing that information. Just something to ponder, Agree that if ICO says will investigate, is worth a go.

[Ganymede]

What has a breach of contract Court claim got to do with the ICO?! 

 

It's interesting that the ICO think that Express should disclose transcripts of telephone calls though. 

[London1971]

Actually, my view on lawyers is excellent in general. My view of nasty no win no fee ambulance chasers is very jaundiced indeed.

 

The reason why GDPR exists is the very essence of the right to know. For example , the OP’s right to know what was said in her phone calls. Or even screen shots, with notes. Otherwise she is at an unfair advantage.

 

So we are in a situation now where the OP knows nothing, and the law firm knows everything . This is against the very essence of GDPR.

 

It’s more likely than not is that Express deliberately wasted her time for 30 days, and didn’t comply. Unfortunately for them there are huge fines for this, and the OP would be wise to report it.

[brassnecked]

16 minutes ago, Ganymede said:

What has a breach of contract Court claim got to do with the ICO?! 

 

It's interesting that the ICO think that Express should disclose transcripts of telephone calls though. 

Perhaps they sense a GDPR issue within that Law you and Manxman have highlighted

 

 maybe something in the Phone Records and other info they are refusing to issue completely undermines their litigation claim, and OP is denied any defence due to it. 

 

Might be some unlawful processing issue,  within the actions of Express Stormy has highlighted.  Only ICO can answer that after they investigate.

[Manxman in exile]

The point about NWNF lawyers is that they provide a service to litigants who don't want or aren't capable of suing a third party themselves.  The lawyers in this case didn't volunteer to intrude on Stormy's life, she went to them because she wanted their help to sue somebody, and then she freely entered into an agreement with them which presumably entitled them to recover costs and expenses they incurred before she (allegedly) breached the contract by discontinuing the case.

 

If the OP has, by discontinuing the original claim,  prevented the solicitors from recovering the expenses they have already incurred from their "success fee", then it seems perfectly fair* to me that they should seek to recover those costs from Stormy under their NWNF agreement.   And I'm talking there about legitimate costs and expenses.  I think Stormy is entitled to make them justify what they are claiming.

 

I'm not a fan of NWNF arrangements, but unless a litigant can afford to pay a retainer and pay as they go, how else will people have access to legal advice?

 

It's still not clear to me how a SAR assists Stormy in putting together a defence.  If the NWNF agreement included terms where she agreed to co-operate fully with the firm and to comply with reasonable requests to assist in making the claim, it might backfire if the SAR reveals that the solicitors were having to chase her constantly for information and instructions.

 

*And that is still fair whether they are "ambulance chasers" or not.  If they can't recover from a Stormy, they'll have to recover from other clients who may be posters here...

 

London1971 - apologies if I've misunderstood your views on lawyers.  There are good and bad lawyers like in every other profession.  I'm just concerned that some of your comments (which could be described as derogatory) might colour Stormy's approach to this.  You were, after all, in an earlier post surprised at the positive reviews this firm got on social media...

Edited July 22, 2020 by Manxman in exile
Asterixed comment

[brassnecked]

Yes NWNF is very much a double edged sword, given the sobering advice from Ganymede and yourself that is realistic and follows the accepted law and practice.  it is interesting that ICO has seen fit to take on a complaint.  Must be some compliance issue outside the accepted norms of operation. We can only surmise on that.

[Ganymede]

@Manxman in exile

 

Good post. 

 

[London1971]

Hey, no worries.

 

i just think it’s worth a shot. For example, does the OP even know how many billable hours she’s being sued for?. It seems that she’s flying blind and Express knows everything.

 

 

[Ganymede]

The OP was recommended to ask for a breakdown and formal bill of costs earlier in this thread. 

 

However, it seems that the OP has focused on the DSAR and complaint to the ICO instead. 

[London1971]

Yup, SAR should have included that but it didn’t. Which circles back to where we were.Screenshots, emails conversations etc.

 

Troubling also that the data controller was not involved, and that the SAR request was handled by the solicitor dealing with her case. 
 

A data controller is supposed to be neutral. That’s why companies need to appoint one or outsource.

[Manxman in exile]

The two words "no fee" are the important words; it's not "no cost"

 

If you enter into a NWNF agreement and you lose your case, you may not have to pay a fee but you will almost certainly end up paying your solicitors' expenses in bringing the case.  And you may have to pay the other side's costs too.

 

All this should be explained to the client beforehand.  They should also be told about insurance arrangements to cover these costs if they end up losing the case.  I think it's called "After the Event" (ATE) insurance.  (Or maybe it's "Before the Event" - I can't remember!).

 

Of course it might be that the SAR is helpful to Stormy if it reveals that these points were not discussed at the outset.*

 

 

Just to add - the "exemption" I think might exist in respect of pending litigation comes from a High Court decision.  (I think.  Maybe I've made it up).  It's not in the legislation.  Now I'm sure staff in the ICO are familiar with the statutory exemptions, but perhaps they are less familiar with decided case-law.  But perhaps I have made it up and am completely wrong...

 

* Maybe not where the client simply decides not to continue with the case.  A bit like "Decisions not to travel" not being covered by travel insurance.

Edited July 22, 2020 by Manxman in exile