Virgin, mystery extra line: 2 judgments for Data Protection breaches - so far!!

[BankFodder]

Interesting. I'd suggest that you tell them that you won't do anything on the telephone and that everything must be in writing and that meanwhile the clock is ticking and the timeline is nonnegotiable

[lemon_martini2]

Well since they haven't specified how the legal team will contact me I shall just wait. They've already used one week of their weeks to answer the claim and haven't done anything so far...

At the moment, it's a win-win situation for me-if they reply with an offer worth taking, I shall consider it. If they don't, then I just wait for the claim to become a judgment and collect the money.

[BankFodder]

Also they must understand that the SAR failures – including the present one – are distinct from the substantive issue of the misuse of your account details, the setting up of a mystery account, the trashing of your credit file, sharing of your personal data with third parties (yet to be verified by an SAR) – the actual damage and reputational damage caused by that as well as the distress caused by that.
They need to understand that these all issues of inaccurate/unlawful processing of your personal data.

They must not confuse the issues or the compensation.

Also, I'd advise that in any negotiation you tell them at every step that you will come back to them – and then we can discuss it here.

I'm trying to figure out what it's all worth and am wondering whether £5000 is achievable in addition to complete deletion of all data, a written admission and explanation. The problem is that we don't know yet with whom they have shared this data. That's another thing we need to find out

[BankFodder]

I would suggest that if they come up with an offer – that of course, it must include full deletion of but also we need to know who they have shed the data with and they will have to delete and correct everything.

 

In any contact now, best to insist that the conversation is limited to the question of the ongoing SAR.

I think they need to understand that you are not in a position to discuss anything else or to negotiate anything else until you have seen all the information you need so that you are on an equal footing with them. They are perfectly informed. You are imperfectly informed.

Once we understand exactly what has happened and have seen all information, then you are in a position to discuss with them how the matter will be handled.

If it is clear that they have inaccurately/unlawfully process your data then this itself is a breach. I will say that the way forward is to issue proceedings on it once we understand the situation, and then be prepared on certain conditions to allow them to sign the Tomlin order which if they comply completely with the conditions laid down, would prevent the matter going through to a judgement.

The Tomlin order would basically means that they would know that a judgement would be hanging over their heads and it will be up to them to address everything properly in order to avoid judicial scrutiny of their behaviour

[BankFodder]

In case you get a judgement on this one

 

https://thesheriffsoffice.com/

 

https://thesheriffsoffice.com/instruct-us/instruct-us-money-judgment

 

and don't hang around

[lemon_martini2]

Quick question-does the date that Virgin have to reply by include holidays or is it standard working days?

 

Their deadline is the 5th which is Monday.So far I've heard nothing from them.We won't get post for the next two days being Easter Day and Easter Monday and as the offices will be closed Easter Day and it's very unlikely they will respond on Easter Monday then their time will have run out-again!

 

Or is it best to wait a day or two after in case something turns up and they claim it was sent well before the deadline but was delayed due to the holidays?

[BankFodder]

I have a feeling that it is straight days – but keep on checking with money claim and when they lift the gate then you know it's the time to go for judgement.

How amazing

 

[lemon_martini2]

OK Moneyclaim has now updated itself and it is showing Virgin as having filed an acknowledgment of service on 1/4 so that should give them until 15/4 to do something....

[BankFodder]

Well I suppose this revenue stream was a bit too good to last.

I suppose you had simply better keep an eye out. You never know they might miss the deadline for filing a defence.

If they do file a defence it will be interesting to see on what basis they are doing that.

Maybe they are starting to engage and the mystery will begin to unravel

[lemon_martini2]

Another bit added to the puzzle... I had filed a Dispute with Equifax three weeks ago- it has been updated with the finding that since Virgin have stated that the information is correct it will remain there.

 

Most entertaining with Virgin's reply stating that since they issued the Deadlock Letter (this would have been last summer) they have received no communications from me and do not know what I want them to do.

I can assume that in that case the three members of the Executive Team who rang me in the last three months were just bored and wanting to pass the time of day with a random customer...

 

I love it  when they get caught out and you can point out 'you managed to reply to a letter,dealing with all the points raised in it, when you claim that you have received no correspondence from me. Your company's predictive skills must be amazing...'

[lemon_martini2]

So Virgin filed their acknowledgment of service on Apr 1 and their fortnight is up to submit a defence. 

I have heard absolutely nothing from them apart from the tumbleweeds rolling down the streets, a coyote or two howling on the lonely plains and one copy of their acknowledgment of service which arrived on about April 5.

Having checked Moneyclaim this evening is it now stating 'a bar was put in place for Virgin Media 15 April, Virgin Media filed a defence on 15 April, DQ sent to Virgin Media 15 April'. 

Do I just wait and see if their defence turns up as I have no idea what it will be. And what are a DQ and a 'bar put in place'? 

[BankFodder]

The DQ is the directions questionnaire.

The "bar" prevents you from applying for judgement.

So this means that a defence is on its way to you and you should receive it very soon. When you do receive it then please will you post up in PDF format. It will be very interesting to see what they say.

 

[lemon_martini2]

OK we have various bits of a defence-even though it states 'By post and email',nothing has arrived by email and the postal arrival has been filleted down so it's more slender than it should be. I wasn't able to get them into PDF format so I'm hoping JPEG will work as well.

 

There are several points that I have noted straight away from their defence- 

 

*they refer to no other correspondence apart from the SAR's'-yet I have ample evidence of correspondence with them both by mail,phone and webchat

*they state that payment has not been made since November 2019-their account ledger itself states a notice of default was issued on 2/1/2020 with the default date on 3/2/2020 and yet I have evidence from my bank that DD payments were taken until February 2020 when it was cancelled.

*most confusingly, their defence is dated 6 March 2021- some ten days before the claim was actually submitted!

 

They also include a credit agreement which goes through sections 1-6 and then lays out the pre-contract credit information and then rather confusingly hops from section 6 straight on section 11 so something has been omitted or misnumbered either accidentally or deliberately.

Shall I upload the credit agreement and account ledger too or was it just the defence you needed to look over?

 

 

 

virgin sar defence.pdf

[BankFodder]

Will have a look but please could you try to get them into PDF format using a telephone app – Adobe Scan. If you don't have an ordinary scanner then that will probably do the trick.

[BankFodder]

I've had a quick look.

It certainly seems to me that their defence has nothing to do with your claim. They seem to be basing the defence on the substantive issue which as far as I know you haven't raised with them in any claim at all.

To save everyone going back again, maybe you could just post up your claim for us to see please.

As you say, the defence predates the claim –!!! Incredible.

Secondly, they seem to be saying that you haven't followed any pre-action protocol – and so far as I am aware, you certainly have.

Thirdly they don't seem to have addressed the point of your claim which is that they are in breach of your subject access request.

Is there anything I've missed?

Also, is there anything useful in what they say that points to documents which you haven't received at all in previous SARs?

Any other points that they make?

I'm going to ask you to perform an exercise with this – and the approach might come in useful in the future.

If you could open up a Microsoft Word document – tabulated into columns.

In the first column, please could you reproduce each paragraph that they have presented in the defence and in the right-hand column please can you put your comments in respect of that particular paragraph.

I think that will make it much easier for us to see exactly where we are – and as I say, I think this will be a useful approach later on.

[BankFodder]

So, any comments?

Also, have they inadvertently let slip anything which helps us to understand the substantive issue of the mystery phone? Have they made any inadvertent admissions?

[lemon_martini2]

Sorry for delay-we had a bit of a health scare here. I've gone through and tabulated them and there's a couple of things that leap out.

*They have ignored all the pre-action correspondence including two previous CCJs-one of which was actually paid.

*The dates for the SARs are incorrect even according to their own records as web transcripts and letters show that they do not mesh up with the dates given.

*They claim that I failed to make payments from 4 November 2019-bank statements show this to be incorrect as the DD payments went out in November,December and January.

*For the first time they have actually identified the store where the phone was sold.

*They admit that the SIM card for the mystery phone shows no evidence of ever having being used at all but get round this by claiming that I used a different SIM card with a different provider-again bank statements show that I did not use a new provider(with a handset they provided-and have receipts for) until after the contract had finished.

 

And then the Court sent their copy which includes everything including the portion left out of my copy including what Virgin purport to be the signed Credit Agreement.

I can see why they did not send me that section as they have fallen into a killer trap.

I changed my signature in 2020 and the only documents Virgin have with the 'new' signature on are the cover letters I sent with the SARs. If they used that signature from the cover letter to put on the agreement it would be instantly obviously as it would be the 'wrong' one-which is exactly what they have done!

 

 

[BankFodder]

Thank you.

The two CCJs are not relevant to this. They don't form part of the pre-action protocol for this particular action.

The rest of it is interesting and we will have to think about it.

What is very interesting is that they've identified the store where the phone was sold. Can you please tell us where store was and also send them an SAR. I think this SAR can relate quite specifically to this particular account/phone.

If this means that for the first time they have identified the store – this means that this information has been missing in respect of previous SARs. That itself is evidence of a breach of the data protection rules.

I think that the fact that the Sim card has been used or not used is irrelevant. Not having been used is not evidence that you didn't order it. It is any evidence that you never used it.

In terms of this signed credit agreement – is that something which you have seen previously as part of previous statutory disclosures?

The final part of your post relating to change a signature – I don't fully understand the moment.

Also, please could you attach your tabulated file so that we can actually see your responses to the point they are making in the defence.

You haven't addressed the point that I made that their defence doesn't seem to respond at all to your claim. Is this correct?

[BankFodder]

Also, we have to be careful to separate issues which relate to their failure to respond to your SAR – and which is the substance of your most recent claim – from the other information that they have provided in the defence which has nothing to do with this statutory breach claim.

We must be very careful to keep these completely separate. They obviously have not appreciated the distinction between the two issues and we can use this to our advantage

 

I now understand the point that you are making about signature.

You are suggesting that if there had been an agreement originally it would have been signed with your old signature. You changed your signature – can you please give us the date – and also can you please explain what prompted you to change your signature and why you are so aware of the date.

What you are saying now is that they have supplied an agreement which apparently is signed by you but which bears the signature which you were not using at the time. The inference is that the document has been deliberately forged.

This is an extraordinary and very dangerous allegation. We have to be very careful

 

[lemon_martini2]

OK here's everything-afraid it took a bit longer than I expected-not helped due to having to race into A&E overnight and then the computer deciding to delete my whole file and replacing it with something blank!!

 

The store-this is the first time they have specifically named the store-it was Exeter(my home city).The problem we have with that is that when the lockdown hit in March 2020,that store closed for good and has never reopened.

 

The defence is vague and generic and does not respond specifically to my claim except to ask to have it disallowed for 'acting unreasonably in issuing it without engaging in pre-action correspondence'.

 

I change my signature regularly as a security check-if I have a specific signature for a time period then it makes it easy to tell when documents etc were issued-this normally changes when I move address(every 2/3 years or so). On this occasion as it had not been changed for almost 4 years, I opted to change it on 1 January 2020. Since then all new documents and details have been using the new signature.

 

I've included their defence points and my comments as instructed.

 

 

VirgDef2.docx

Edited April 20, 2021 by lemon_martini2

[BankFodder]

Here is the particulars of claim which I believe you filed – which I have taken from your post dated 18th of March

 

Quote

'The claimant submitted a valid Data Protection Subject Access Request to the defendant on XXX

Despite being fully aware of this and acknowledging the claimant's complaint on several occasions,the defendant has failed to submit a complete disclosure. The claimant has extended the compliance date twice with no effect. 

This is a continuing failure by the defendants of their statutory data protection obligations, who have already breached two previous subject access requests and as a result have had County Court judgments awarded against them.

As a result of the defendant's failure to completely provide the personal data held about him and his account,despite being granted two time extensions,the claimant has been put to great trouble and has suffered enormous distress which has continued for a considerable time,and according the claimant seeks damages of £610 plus costs.'

 

[BankFodder]

Am I right that their defence makes absolutely no reference to your present claim for non-compliance with your SAR – except for a reference to the damages you are claiming?

In other words, there is no denial at all that they failed to comply with your statutory request.

Also, could you just confirm the date that you supplied the SAR so that we can get rid of the XXX above

[lemon_martini2]

POC in post 221 are correct.

 

With reference to the SARs in post 222.-In their defence they claim 3 have been submitted and each 'responded to fully'

Mar 2020(replied to in June 2020),Nov 2020(replied to in Dec 2020) and Jan 2021(replied to in Feb 2021). A fourth SAR was rejected in October 2020 as 'not following procedure'.

 

However,these were either inaccessible or lacking data. The latest SAR was submitted in Feb 2021.Despite email acknowledgment of them receiving it(17 and 22 Feb),I have not received any reply and it is not mentioned in their defence.

 

[BankFodder]

I have three burning questions.

you say that they have identified the shop where the mystery handset/account was set up. It's in Exeter you say but it is now closed down.
Do you happen to know the date that closed down?

Is this where you bought your own legitimate handset?

 have any of the SARs produced your own legitimate subscription agreement?

 

[lemon_martini2]

*The shop closed for lockdown in March 2020 and never reopened-it was confirmed in June 2020 that none of Virgin's high street stores would reopen. So last day of trading was sometime at the end of March 2020.

 

*That is indeed where I bought my legitimate handset

 

*None of the SARs have so far produced my own legitimate credit agreement, but I still have a copy of the order details and purchase summary stored in my emails.