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


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On my list of things to do this weekend-got all my paperwork in order. 

Just one thing I'm not certain about-if I'm including the calls with the Executive Team as part of my evidence how do I submit them as part of my bundle-do they need to be transcripts or copies of the audio files? 

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You should include in the bundle anything that you propose to rely upon in court.

If the conversation you have had are relevant then you should certainly include something relating to them in your bundle. I think putting together a transcript is going to be very onerous for you and so I would suggest that if you are going to use any recordings that you try simply to make some notes of what has been said and use that as the document.
Then I would send a copy of those notes to the other side as quickly as possible and say to them that in order to avoid the necessity for getting a transcript and to avoid the cost of the transcript which will be added to any costs that they will be liable for when you get judgement, you have made the following notes in respect of the recording on XXX date and do they want to disagree with your interpretation of the call.

If they don't respond or if they agree, then you can simply mark the notes as "agreed by defendant".

In the same email to them you can ask them that if they disagree, could they please explain in what respect they disagree. Explain to them that if necessary you will play the recording to the judge.

If this becomes necessary then I would suggest also in your notes of the call you put the timing so that you know whether a particular comment is made is 3 minutes 40 seconds or 5 minutes 6 seconds in et cetera.
Also, you better have some kind of machine which is capable of playing the calls at a reasonable volume and if you have to include recordings then you will have to supply them to the court on a USB stick.

The court was only allowed one hour for the hearing but it seems to me to be a fairly optimistic estimate. Also – note that you are prioritised. It will only be if the timeslot becomes available.

When you supply the bundle to the court and to the other side, include your notes of the call – each call on a separate piece of paper with the date and inserted in the appropriate place in the bundle. I hope you seen my notes on preparing the court bundle. Include a USB stick for everyone

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When you are preparing your documents and also when you are considering your arguments it will be very important to maintain focus on the reason you brought this action and your particulars of claim.

The only reason you brought this action was because of their breach of statutory duty. Their failure to provide you with the documents that you wanted on time or to make a complete disclosure.

Nothing else.

You have seen already that in the chaotic models of their defence, they are trying to bring in other issues which are not part of your claim. I fully expect that either they have lost sight of the purpose of your claim or else they are trying to muddle it up deliberately and to throw in everything else.

If this happens during the hearing then you must immediately interact and point out the judge that with respect this is not what your claim is about and that your claim form makes no reference to any other issues other than their failure to disclose documents as required by the data protection statute.

At some point it may be necessary to remind everyone that the judge has only allocated one hour to the hearing and they are trying to refer to so many other issues which are not part of the claim that they will go considerably over the allotted time.

It will be extremely important to point out the judge that their defence is chaotic and makes almost no reference at all to the substantive issue in your claim which is their failure to disclose your personal data.
Of course they will be helpful as well when you point out the judge the disparity in the dates and the fact that they clearly prepared their defence before they had even received your claim form.

So I expect that that will be the dispute over the substantive issue. They will try to bring everything in and you must prevent them from doing it and you must constantly bring the focus back to the substantive issue in your claim and the fact that they haven't addressed the substantive issue and in fact their defence effectively amounts to an admission because at no point have they actually denied that they have failed to disclose the personal data.

The second issue will be the amount of damages you are claiming. They will try to say that you have no basis for claiming £600. You are going to have to think very carefully to demonstrate how distressing it has been for you not to receive the personal data that you have asked for and furthermore for you to have made such extraordinary efforts to obtain the personal data and that itself has been extremely distressing – and that's what the data protection rules provide for when the statue makes it clear that "distress" is a head of damage.

The other side may well want to have evidence that you have suffered in some way physically – maybe you had to go to the doctor or you have been unable to work et cetera and that your damages for distress should follow on from that physical injury.
This used to be the rule but then there was the case a few years ago – Google against somebody and there the court held that the data protection statute should be read to mean that damages were available for pure distress without any evidence of any other physical injury or damage. You will have to look it up and find the name of the case.

However, £600 is quite a chunk and they will do everything they can to knock it down. If you manage to succeed on the substantive issue that they failed to disclose the data – then virgin will look for a face-saving decision which will mean that they will want to persuade the judge to award you a smaller sum. Virgin may then attempt to say that if you had tried to claim a more reasonable sum to begin with that they would simply have settled and they would have been no need for litigation.

Once again, you will have to remind the judge that this is a statutory breach and then it is serious for a company as well resourced as virgin to act so irresponsibly as to contravene its statutory duties. But you will have to emphasise very much how distressing it has been and you will have to emphasise again to the judge that it was sufficiently distressing for the first two breaches committed by virgin for which you have obtained judgements and in respect of which they have paid without any objection but the serial nature of their continued breaches of your statutory rights have been so gross and so astonishing and traumatic to you that you have been fully occupied with the problem. That it has affected your daily life in the sense that you have been unable to stop thinking about it, to stop preparing about it or to concentrate on other things in your life because you have been preoccupied with the data breach.

A very important point that you must make is that you should point out to the judge that virgin have still not complied despite the fact that they are now fully aware of the issue and they have had lots of opportunity to address the problem and they still have continued to be in breach of their statutory duty.

What will be very interesting will be to see their court bundle. If it turns out that there court bundle contains some personal data which had not been disclosed to you up to that point then that will be further excellent evidence that the litigation has been necessary simply to start teasing out some of the information that you have been seeking.

So in conclusion – for the moment –

  • make sure your court bundle is focused only on the data breach. Do not be diverted to starting to prepare documents which relate to the real problem of the Phantom account. If you start to make any references to that or if your court bundle contains any references to that substantive problem then you will have allowed yourself to be led away from the real issues behind this particular piece of litigation which is their failure to disclose your personal data.
  • Being completely prepared for their arguments which will dispute the amount that you are claiming on the basis that either you have suffered no distress or else the distress which you have suffered really doesn't add up to £600 worth.


I can fully imagine that when you receive their bundle it will have all sorts of references to the dispute over the Phantom account. You will have to go through their bundle quite carefully and you may well find that a very large chunk of it is not at all relevant to this particular dispute over their failure to disclose your personal data.

When you receive their court bundle, it will probably be worth making your own index sheet to it and identifying documents which you consider are relevant to the current litigation distinguished from documents which you consider are not relevant but probably are relevant to the dispute over the Phantom account

 

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Additionally, they may try to make references to the previous payments of damages in relation to the earlier litigated breaches. They will try to say that you've had enough money. Once again, it must be pointed out that you are dealing with a completely fresh breach.

However, references to the previous breaches can be used against them to emphasise that they are serial offenders in terms of a breach of statutory duty. Also I seem to recollect that the ICO instructed them to contact you with certain information and they have so far failed to do so.
Although this failure to follow the ICO instructions is not part of your present litigation, it certainly helps to show how dismissive they are of their statutory obligations and how even this blatant disregard of ICO instructions in the face of previous statutory breaches has helped to compound your level of distress.

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Court has been sent the email address that will be used for the case and autoacknowledgement received.

 

Am now filling out form for assistance with court fees and preparing our argument focusing only on the failure to respond to the SAR.

If they dispute that it is really worth £600, I shall use the email sent by their Executive Team in December offering £500

It will be difficult for them to persuade the judge that my distress was worth £500 at Christmas 2020, but not worth £600 eight months later.

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How are you getting on with the court bundle? I'm afraid I've forgotten all the various deadlines. Maybe you could remind us.

I was going to suggest that you included all the screenshots from people who are complaining about the same problem of having had phantom phones setup in their name. I suddenly realised that this would be a mistake because this then moves away from the substantive issue which is simply that they didn't comply with the SAR.

It would be helpful if you could post up a copy of your court bundle index sheet in PDF format please so that we can get an idea of what you are going to give them – which of course is what you will be relying upon in your case.

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  1. DONE-sent and confirmation received*By 20 July,each party must send to the court an email address to which invite to the video hearing will be sent.
  2. *WORKING ON NOW-By 23 July(4pm) claimant must pay £80 or file a properly completed application for help with fees or the claim will be struck out and claimant will be liable for defendant's costs.
  3. *By 27 July(4pm) claimant and defendant must exchange and send to court copies of all documents to be relied upon and written statements of all persons due to give evidence,including the parties themselves.
  4. *By  3 Aug(4pm) parties will liaise and agree contents of trial bundle
  5. *By 13 Aug(4pm) claimant must file and serve a paginated indexed digital trial bundle
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Thanks.

I would suggest that you send them an email – with a copy to the court informing them that you have now complied with points number one and number two on the court order and that you are preparing to comply with number three.
Do they expect to be able to comply with the order to exchange documents by the court's deadline?

 

I think it will be helpful to you to be a bit pushy and show them that you are being very proactive.

If they reply then that will be interesting. If they don't make any reply then that is something else to show the court that they have been uncooperative whereas you have been sensible about it all.

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  • 3 weeks later...

We have moved on somewhat-court bundles were exchanged-

mine focused specifically on the SAR requests I made, their replies when they confirmed receipt of them and their compliance or otherwise and the lack of a signed agreement included,the failure to put in a defence for any of the previous claims,=the acknowledgment by their team that they did not have the original invoice and the acknowledgement from the Executive Team that they had failed and the offer that was submitted.

 

Theirs consisted of a statement by Beverly from the Executive Team and a 'Sharon' from the call centre mainly blaming the pandemic for their failure to comply with the time limits-interestingly in their defence they specified only three SAR requests had been made,but here several requests have been mentioned. They have also not included any SAR requests or answers including any dates,but generic identical replies..

 

Since then, I have attempted to liaise with them to agree the contents of the trial bundle as per the court's instructions-this should have been completed by 4pm today.I have had no contact from them at all and this has been brought to the court's attention that they have failed to comply.
 

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Thank you.

How did you inform the court? Was it my letter? Did you copy virgin in? Did you copy their solicitor – what's her name? The one who signed the statement of truth on a defence which predated the claim.

The fact that they are generic replies – I think is important and that you should bring this to the attention of the court.

When is the next date for something to happen?

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On 10/07/2021 at 16:47, BankFodder said:

The other side may well want to have evidence that you have suffered in some way physically – maybe you had to go to the doctor or you have been unable to work et cetera and that your damages for distress should follow on from that physical injury.
This used to be the rule but then there was the case a few years ago – Google against somebody and there the court held that the data protection statute should be read to mean that damages were available for pure distress without any evidence of any other physical injury or damage. You will have to look it up and find the name of the case.


Google v Vidal-Hall

 

https://www.judiciary.uk/wp-content/uploads/2015/03/google-v-vidal-hall-judgment.pdf

 

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@BankFodder I informed the court by email and copied in their solicitor Nicola Smith and to the Virgin Media contact email from which I received a reply stating they do not accept emails at that inbox and giving contact details for how to get in touch with them.

 

This morning I had an email from Nicola Smith, stating that

'Upon considering our file of papers we note that no draft bundle was provided by you for consideration, rather than an email submitted to the Court by you on 27 July enclosing documents in readiness for the hearing listed for 20 August.

Notwithstanding the above however we confirm that the contents of the bundle should be in accordance with paragraph 12 of the order of District Judge _____ on 29 June 2021. We would be grateful if you could provide a copy for perusal if it has been prepared.'

So they are saying

:they never received a draft bundle,

:then they did receive it but despite it being in exactly the same format as theirs, they did not term it a draft bundle

:then despite having acknowledged receipt of it, they need another copy to be sent to them.

I'm not doing their work for them-they have a copy which they have acknowledged,they can peruse that.

 

Next deadline is 13 August for the claimant to file and serve a 'paginated indexed digital trial  bundle' whatever one of those might be when it's at home...

 

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They are obviously completely in a mess.

I expect that she will contact the court and say that you haven't complied so you need to deal with this urgently.

I think you will to reply back to her and simply saying that she is completely wrong.

That they have received that bundle and that you sent it on XXX date, that it was acknowledged by them and to put it beyond doubt you are enclosing a copy of their acknowledgement.

I think that it may as well be reasonable to point out that clearly they are in a complete mess, they have been in a mess ever since the saga started, that she clearly has no control over the situation and this further inaccurate processing will also be brought to the attention of the court

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By the way, are you saying that they supplied you with an email address for documents – as required by the court and the email turns out not to accept documents?

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The email they supplied me with was for this Nicola Smith, who is their solicitor and works for someone called Liberty Global. The Virgin email I sent it to ([email protected]) is the address that has replied to all my previous SAR requests and queries. Perhaps they think this Nicola Smith's email will be sufficient.

 

On the bundle-it will be very hard for Virgin to claim non-receipt as it was sent to the court,Virgin and Nicola Smith together. The court has autoresponded to confirm receipt-furthermore as Nicola Smith and Virgin were included as CC's,the court will not only be able to produce the original email, but proof that the other addresses it was sent to were correct. The chances of only 1 out of 3 correctly addressed emails reaching their destination must be remarkably small! 

 

 

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Sounds good but I still think that it be worth telling Nicola Smith that she's had the documents and she doesn't know what she's talking about.

From what we know about the handling of this case so far, she really doesn't seem to be in control of it at all. I wonder if she's relying on some paralegal and the work is not being properly checked.

I'm sure she's generally good at her job and I suppose that in this particular case she can only be as effective as the information which is supplied to her, but it certainly seems to me that nothing is being checked. When you see that the barrister who drafted the defence doesn't seem to have engaged with the claim at all and nobody at Liberty Global seems to have appreciated that, it really makes you despair about the whole shooting match.

 

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Preparing paperwork for the next deadline. What is a 'paginated indexed digital trial bundle?'-just a posh way of saying everything I need for the trial online with index and page numbering? 

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It is a very specific way of presenting your documents. It needs a full copy of Adobe acrobat. If you search YouTube you will find a good tutorial on how it works.

I'm out at the moment but when I get back I will try to find you a link to the tutorial

 

Have you got a full copy of Adobe acrobat?

 

It's a bit unfair because this is the kind of thing that professional law firms have and litigants in person generally speaking don't have this level of software

 

 

 

 

 

 

 

 

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Thanks for that-very useful. I've downloaded a free trial version of Adobe Acrobat(making sure to cancel it as soon as I've finished so as not to get charged) and am ploughing through it whilst watching the video. I assume I just submit any document that I want to be considered and then divide them into suitable categories (eg data access requests, previous claims)?

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I'm not too sure of the answer to your question – but I think the most important thing is that it is a well-organised/classified/categorised bundle and fully indexed so that even if it doesn't conform to the standard "professional" way of presenting the documents, that it makes sense very easily even to Nicola and the mob from virgin – but the most important thing is got to be accessible to the judge and also you've got to know your way around it completely so that you can find any document within a matter of seconds and direct other people to by reference to the page number.

One thing that judges hate is somebody not knowing their bundle and fumbling around with – it must be here somewhere, maybe it's there I think I found it – no that's not it blah blah blah.

You need to be able to access anything that is being referred to by anybody lightning quick.

When is the date for submission of this bundle?

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Just got to put documents in place! 

Couple of points that I've noticed whilst looking at their statements:

1.In their DQ,Nicola Smith says that she will be the only witness-yet interestingly in their defence she did not identify herself as being the composer of it.

2.In the statement from Beverley,she refers to at least seven SAR requests yet in their defence they only specify three were ever made(and one rejected).
3.And just for entertainment value,in the statement from Sharon, the exhibits are labelled SJ1-SJ8. Yet in the statement itself,there are only references to SJ4-8. The first three exhibits are actually referred to as JS1-3 🤔

 

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