Tanzarelli V's Barclaycard

[Glenn UK]

Right oh,

 

first off as far as i can tell there is nothing to stop them destroying your data, I haven't found a bit of legislation which specifically says they have to hold data for a specific period of time, even when i spoke to the inland revenue they couldn't substantiate a particular bit of legislation or period beyond three years.

 

The ICO felt six years post account closure was reasonable for the whole account history, but again no bit of information highlighting any specific legislation. Ive asked before but had no response, if anyone can substantiate a bit of legislation then please do so, otherwise I'm afraid theres nowt.

 

Having said all that don't give up hope.

 

If you are asking for statements then i think you are asking for the wrong thing, you should be asking for your data, they say your statements were destroyed and not your data.

 

I would write back and say that Barclaycard have made a mistake, you want transactional data for the period in question, copy statements would have been acceptable but any relevant format will be acceptable.

 

Personally i wouldn't invite them to explain, i would simply say that failure to supply the relevant data within 7 days will result in court action asking the court to order Barclaycard to supply the relevant data. In the event that they claim your data has been destroyed can they supply a copy of their policy which allows the destruction of your data to save you requesting the court to order disclosure.

 

I don't expect them to supply the data off the back of this letter. I would expect you to have to enter a claim into court.

 

When you do, ask the court for an order instructing the defendant to supply the relevant data or to confirm if they hold data but you are not entitled to it, and if so by what reasons, or if they do not hold your data and if so when and how it was destroyed.

 

You might like to include in the comments in the letter that you are aware that microfiche records hold a number of persons details and that are they saying that they wholesale destroy everyones data.

 

Anyway hope that gives you some ideas.

 

HTH

 

Glenn

 

PS the co-op 'are not required to hold data for more than six years'. I now have data more than nine years old

[Glenn UK]

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/19031-glenn-co-op.html#post259285

 

Tanz have a look at this these were my poc but i would revise along the lines i suggested above.

 

hth

 

glenn

[Glenn UK]

Hi Glen how does this look?

 

Mr Adrian Whalley -The Data Protection Manager

Data Protection Team

Department LRC

Barclaycard

Northampton

NN475G

 

15th January 2007

 

 

Dear Adrian Whalley,

 

 

Account Number: **** **** **** ****

 

 

Thank you for your letter of the 12th January 2007. I am disappointed that you are no longer in possession of the statements for 2000. However you will remember from my S.A.R - (Subject Access Request) that I requested you to, “supply me with a complete list of transactions and charges relating to my banking history with your organisation. Alternatively, a complete set of statements for the period of January 2000 until my account was closed on 29/06/2004 will be acceptable”.

 

I feel that Barclaycard has made a mistake, as what I actually require is the transactional data which you hold in relation to the period of January 2000 to December 2000. I was happy to accept copy statements in the alternative, but any format will be acceptable. I am also aware that microfiche records hold a large number of peoples account information on them, so does this mean you have destroyed, on block, a number of other peoples data as well as mine?

 

I have already issued you with a Letter Before Action but as a gesture of goodwill I will give you a further 7 days to provide the information I require. If after 7 days you still fail to provide this information then I will file a claim with the County Court asking for an order instructing Barclaycard to supply the relevant data, also if there is a reason why I am not entitled to this information, I will ask for the reasons to be made clear. I will also ask for Barclaycard to provide details as to how and when this information was destroyed.

 

I hope this clarifies my position

 

Yours faithfully,

 

Ive suggested some very minor changes

 

HTH

 

Glenn

[Glenn UK]

with estimated claims there are risks if it ever gets to court IMHO.

 

If you want to estimate then IMHO you should file for non compliance with your estimate as damages, i don't know anyone who has done this and there may be risks with this approach. Its not something i have thought a lot about but it is something that has been suggested to me in conversation. the person that provided that idea is someone you know and trust, i hope at least, i don't want to quote them because it would be up to them to comment.

 

Personally i would sue them for the data, i have again been trawling the web for info on retention periods a nd six years keeps coming but with no reference to an act.

 

One reference suggests six years for institutions to a bank after the instruction ceases to have effect, another suggests six years for statements full stop.

 

As I have said, i believe they are playing with words and are misleading you, if they are the court action will bring it to an end with virtually no risk of court attendance on your part, especially if you construct the POC well. mine was good, but not quite as good as it could be, the Co-op have failed to give a good clear statement about why they wont provide data, despite three requests, we now have a directions hearing on Friday, i cant see the court being happy about it.

 

Anyway I recommend the letter followed in seven days by action in court.

JMHO

 

Glenn

[Glenn UK]

i would ask for a very small amount of charges, say a fiver the claim value then becomes the moentary value of the claim ie £5.00 fee payable 35 i believe.

 

if you dont put a value on the claim then the fee payable is 150

 

HTH

 

Glenn

[Glenn UK]

Sod you then !

 

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/19031-glenn-co-op.html#post498940

 

Hope it helps

 

Glenn

 

PS drop me a pm if theres anything i can do

[Glenn UK]

Its interesting and telling 1) that he said they are destroying data because of this issue and 2) that he says they don't hold your data but that he doesn't know for certain.

 

Re telling the courts no they don't have your data, that is of course one of the options but they have to enter a sworn statement so if they do you can be reasonable certain they're telling the truth.

 

Of course if it isn't the truth then they provide the data as the Co-op did for me.

 

At the very least it makes them look for your data very hard, rather than what is obviously being done is a stock answer with no basis behind it.

 

JMHO

 

Glenn

[Glenn UK]

A point worht considering is that ultimately its up to the claimant to prove their case to the satisfaction of the courts, in this case the standard required is based on the 'balance of probabilities'.

 

So in other words you have to be able to convince the judge that your claim is better than 50:50 as to whether you incurred charges in any given month.

 

Hot sure it does but HTH

 

Glenn

[Glenn UK]

Tanz

 

Don't want cause any grief but I believe that an estimated claim is likely to get thrown out of court in a trice if it gets anywhere near.

 

The defendant will not have to argue about the lawfulness of the charges, the rate of interest, they will simply argue that you have no proof that they charged you anything.

 

As much as your estimate will no doubt be reasonable, it wont constitute proof in a court. I suppose its a debatable point, but on a personal note I wouldn't go to court with a large portion of estimated charges in a claim. one or two scattered between months of high charge activity yes.

 

Where I'm going with this is that if you have a period where you don't have statements for but are sure you have incurred charges then I think you are in a difficult position, I haven't really seen how people are getting on with estimated claims, all i know is that if it gets to court you could be on a sticky wicket.

 

Another approach may be to sue for non-compliance with the DPA and claim your estimates as damages. There is no requirement for proof there but the estimate, being a reasonable assessment of your losses over the period you do have statements for would be reasonable.

 

Of course it also has its drawback, since if you don't win the claim for the data then you wont get the damages.

 

I know lots of people have spoken of estimated claims in the past, i just don't know anyone who has actually done it all the way through.

 

I could be wrong and would be pleased to hear otherwise.

 

Sorry if this is peeing on your fire, but i think it best to let you know my thoughts rather than keep quiet and maybe you get a 'kicking' from the bank in court.

 

Glenn

 

Good point T4FF,

 

Unfortunately was never that organised to set this up if I remember rightly, just used to take slip of bottom of statement into bank and pay cash (when I got it together to do this. lol).

 

So this would be no help.

 

I would feel confident argueing that they should have supplied the info and that I am inly estimating because of this, I will argue the section 32 point as and when it arrises for this 2000 period, as well as argueing that the held up the S.A.R - (Subject Access Request) from sept 2006 which also affected the time it took me to bring the case to trial. I would argue that the estimation is based on what I have said in a previous post which I beleive to be fair, and if they then turn up with any form of transactional data, then as bill said they will be shooting themsevles in the foot. If I have not got any charges for the estimated period, then I will also be claiming the estimated charges in the alternative as damages, due to the fact that Bcard has been spinning a yarn, telling porkies, blatently lying, deliberatly concealing, call it what you like. But as a result of their action I have suffered financial loss due to postage, stationary, ink as well as having to spend vast amounts of time researching this case and preparing. All this will be carefully worded in my POC as to avoid the arguement they tried to hit Bong with in her claim re paymeny of damages. I truely beleive that a judge would see that I am being reasonable and that Bcard have acted totally unreasonably for a long period of time and that they are continuing to do so on a daily basis.

 

Any thoughts Glenn/Bill et al?

 

Tanz

[Glenn UK]

Bill

 

why do you say you cant go back further than 2000?

 

Under the DPA if they have data they have to supply it, I know of someone who has spoken to Barclay's today and been told they have data going back 12 years, OK not quite the 20ish you have in mind, but the point is if they don't provide the data or some proper statement as to why they don't have to, then as far as i can see you can claim damages for non-compliance.

 

clearly a very speculative claim would be frowned upon by the courts, but if you say valued your damages at a value 'not exceeding 5K or 15K' then i don't see what the problem would be, in principle at least.

 

Using this approach you don't have to prove the actual charges since it is damages, then you need to be working very hard to convince the court as to the scale of any damages.

 

It would be interesting to hear if anyone else has any thoughts on this matter since i haven't seen it tried, but it seems a better bet, should it end in court, over an estimated claim where the burden of proof for the scale of the losses is on the claimant.

 

JMHO

 

Glenn

[Glenn UK]

Tanzarelli sorry for the hijack but you know what Bills like?

 

I guess if they have provided an unequivocal statements specific to your account data then you may be right. So far i have only heard or seen what can only be described as generic letters which are very carefully worded to make you believe them without actually referring to your data.

 

if you have something which is unequivocal be good to see it.

 

Glenn

[Glenn UK]

I would agree a written confirmation of the status of your data wold be ideal, however, a verbal comments with good handwritten notes provided by the claimant can be in principle as good, especially if you can get the same info from more than one source.

 

Glenn

[Glenn UK]

A small point but there is nothing that restricts a bank from holding data for longer than 6 years, nor is there anyhting that says they have to hold it for a minimum period in law as far as I can determine.

 

Ive looked reasonably hard and have posted this comment in a number of threads and no one has yet contradicted me, if anyone can point to some bit of law which gives timescales that would be good.

 

And info wherever you can get it has to be good, if its verbal of course you shold make some notes with all the details, where, when, who and content.

 

HTH

 

glenn

[Glenn UK]

Tanz

 

i don't know if you have seen it I'm sure someone posted details of a letter from Barclay's stating they held data for 6 years post account closure for the whole account history.

 

I cannot now find the post but i would keep my eye out for it if i was you.

 

Glenn

 

Ps if you or anyone else finds the post which refers to this letter please let me know its very important to a lot of people.

[Glenn UK]

Bill

 

would say this week, prob since Monday. i am sure it was a letter that they confirmed the y held dated for six years post account closure and i was certain it was related to Barclay's/Barclaycard.

 

i might even have posted something on it, but right now i am subscribed to over 100 threads and i delete loads of subscriptions every few days because otherwise i cant keep tabs on the ones that are current.

 

Now i cant find the damn thread, ahhh.

 

Glenn

[Glenn UK]

Tanz

 

my thought was it was barclaycard but i cannot be certain i have posted something but have not had a response yet.

 

glenn

[Glenn UK]

THere is no provision in the Act as far as i am aware for extension to the statutory period allowed for complaince with a SAR.

 

If carl works for Barclays then ask him which bit of law is being applied?

 

THe 40 days is set out in the law its your right to get your data. Barlcyas problems are a matter for themselves and no one else. The ICO doesnt have the authroity to change the law or give extensions of time to the statutory period unless you know of a section of the DPA that gives them that power.

 

HTH

 

Glenn

[Glenn UK]

Maxine

 

I took the Co-op to court and my POC are listed in my thread Glenn Vs Co-op (see link co-op in my signature)

 

I used a slightly different approach to yours but it worked for me and reduces the chances of having to go to court IMHO but still achieves the objectives.

 

Re damages, whilst i don't suppose for one minute your claim isn't genuine, however, i don't think costs are in fact damages, could be wrong mind.

 

I would put down notional damages of £5, this is how the claim will be valued for fee purposes (i have heard of one claimant being told by her local court that she couldn't file for less than £50!)

 

Anyway please feel free to have a look at what i posted I'm not sure what post it is but i revised the POC for future use from that i actually submitted, this is made clear in my thread and there is a post where i highlight what i would do for the future.

 

HTH

 

Glenn