Tanzarelli V's Barclaycard

[TANZARELLI]

Scrap that Glenn, found it.

 

Cheers.

 

Tanz

[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

[TANZARELLI]

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

 

Thanks Glenn theres a click on the way for your help.

[TANZARELLI]

I just phoned Barclaycard, and spoke with Adrian Whalley:

The conversation went something like this (please note these are not all direct quotes):

AW: Hello AW

T: Hello this is T how are you?

AW: Fine thankyou and you?

T: Did you recieve my letter?

AW: Er yes, um let me just grab it, er yes you said that you were not happy, er and you felt that Barclaycard had made a mistake. Er you mentioned LBA, and we spoke following this.

T: I am aware that you have said that my statement info has been destroyed, and to be honest I am sort of taking this with a pinch of salt if you like, however what I stated in my letter is that I actually require transactional data for this period, and that I was requesting copy statements in the alternative.

AW: Mr T could I just ask why it is so important for you to obtain this info for 2000 as time is now passing and the limitations act has an effect, I have previously explained to you that your information has been destroyed apart from Dec 2000 which you have been supplied with, you should know if you have defaulted on your account or if you are a serial defaulter. We used to keep account info for 6 years until recently because that was the “legal liability period under the limitation act”. I have now stopped this due to this issue.

T: I know but as you know we have had from you the microfiche story, which came and went and I have been trying without success to obtain this info from you so that I can establish the level of charges you have taken form me. When you say destroyed, how is this done?

AW: well it’s just destroyed, done away with. (What do you get a hit man onto it?)

AW: Can I ask have you compiled a list for the charges of £12, which you have got from your statements so far?

T: Well yes I have compiled a list of all the charges in full total not just £12.

AW: You should know if you have made default on the account.

AW: Could I ask how much this is in total because we will check this information when/if you make a claim against us.

T: Well that’s what I am trying to establish and I would hope that you would check this info but it’s around £620 so far, as I deducted £75 as they had been previously refunded. (Didn’t tell him it’s got contractual interest on)

AW: So you have made a few defaults.

T: Well I have had a few charges put onto my account by you, yes.

AW: I have told you that we no longer hold this information, but you don’t seem to agree and feel Barclaycard has made a mistake. If you wish to pursue legal action thorough the courts it would not actually get you this info as we would only tell the courts that we no longer have it.

T: well I am only a layperson if you like and will be a litigant in person,

AW: A what?

T: a litigant in person.

T: All I am trying to do is to establish the correct total of charges you have levied to my account, and I would think that a company like your would be able to provide some record of transactional data and charges applied to accounts .

AW: All I can say is that I will enquire, and I am not sure who to yet, but I will enquire at the highest level to check that, when we destroyed your account statements for 2000 no other electronic copies of this info was made in any form, but I would expect that the answer would be no.

T: Thank you for your time.

AW: Thanks Mr T bye.

[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

[isidore]

Mr T could I just ask why it is so important for you to obtain this info for 2000

Makes me laugh that bit........

[TANZARELLI]

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. (I WOULD HAVE THOUGHT AS THE PERSON IN CHARGE OF DATA PROTECTION HE WOULD BE ASKING HIMSELF NOT ANYONE ELSE. i AM NOT EVEN SURE IF THERE IS ANY CHARGES ON THIS AS AT THE START OF THE NEXT YEAR I WAS MAKING PAYMENTS UP UNTIL ABOUT AUGUST 2001. iF i WAS TO PUT IN AN ESTIMATED CLAIM THEN I AM HOWEVER CONFIDENT THEY WOULD BE ABLE TO COME BACK AND STATE THAT NO CHARGES WERE APPLIED TO MY ACCOUNT FOR THIS PERIOD. THIS IS THE INFO I WANT NOW TO AVOID HAVING TO AMEND MY CLAIM AT A LATER DATE.)

 

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. (I'm sure your right about this)

 

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

 

Actually considering estimating these chages on the basis that they have failed to supply this info and then claiming in the alternative them as damages as they have said they were unable to provide this info as they had been destroyed, and after repeated requests for transactual data they said they didn't have it. If they then came up with it i would argue they should have been able to provide it when first requested and that they had caused me to pursue it over a period of months ie from sept 2003 when the SAR was sent to them. Causing me to spend time and money ie postage, paper, ink and causing me undue agrivation.

 

Any thoughts?

 

Tanz

[bill-k]

Just PM'd you, Tanz, but seems better to post it here for Glenn have a look at, too:-

Hi Tanz- Yeah, nice style, mate. FWIW, I would consider this as well:-

 

Make sure you get clear and unambiguous confirmation that the data in question is no longer available ie., when & how it was destroyed/deleted - "For the Avoidance of any Future Doubt."

 

Then bl**dy claim the estimated charges anyway. If they bring up one single pieice of relevant data in court they will have literally inCRIMinated themselves by breaching the Data Protection Act. Porridge for somebody, methinks ? !!!

 

You decide, though, mate. Either way, you will need to get that estimate sorted, so let's do it. I am expecting to claim estimated at some point in the future (somewhere over the rainbow !!), and have thought a little about this. I think one has to have a good explanation ready as to how one arrived at the estimate(s), so that in itself forces some thought. Of course, it must seem reasonable - as yours does. I personally, would enter in a separate line for each estimated charge, and give it a nominal monthly date, based on your regular statement dates. This will then enable a fair estimate of interest to be made.

 

If you are also claiming interest actually charged, in the further RH columns, then I think you can just apply a similar rationale to these.

 

How does that sound ? Do let me know if it seems a go-er.

 

Cheers mate. [unquote]

[TANZARELLI]

Yes it a goer. I will have to work out whats fair and reasonable first though, for example, the account was opened in Jan 2000 so my balance would be low and for a few months unless i hit it hard straight off (which I more than likely did), so to include over limit charges would be, i feel unreasonable. However i may have had late payment fees from about Feb onwards all the way to Nov 2000 all at £15. I might have hit my limit by about july 2000 so could argue that from July-November 2000 i could have had over limit charges as well all at £15. (I have just checked my Dec 2000 statement which they have supplied me and my credit limit was £1200 and the present balance shows as £1223.26 on this statement it also says "closing balance of last statement £1122.69 so i was under limit here.) So it may be wotrht just using late payment fees and perhaps a couple of over limit fees.

 

I would say this is a fair estimate. We just need to work on putting it on the sheet. Any thoughts on this as you know me and spreaddies, they might as well be writen in chinese.

 

I'm knackered now so am gonna hit the sack, but will pop online tomorrow first thing before work.

 

Thank

 

Tanz

[isidore]

Tanz, just a thought, but do you have any DDs unpaid during 2000 on your current account (where CC is paid from)?

 

My thinking is that you can back any estimated late payment charges using this theory. If you direct debit wasn't paid, you didn't pay your bill. Obviously you might have, but if they haven't got the information to disprove it.

 

Just a thought.....

[bill-k]

Nifty idea, T4FF. I guess this is something like "forensic accountancy."

Worth a go, I reckon. Cheers.

[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

[TANZARELLI]

Tanz, just a thought, but do you have any DDs unpaid during 2000 on your current account (where CC is paid from)?

 

My thinking is that you can back any estimated late payment charges using this theory. If you direct debit wasn't paid, you didn't pay your bill. Obviously you might have, but if they haven't got the information to disprove it.

 

Just a thought.....

 

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 SAR 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

[TANZARELLI]

Tanz, just a thought, but do you have any DDs unpaid during 2000 on your current account (where CC is paid from)?

 

My thinking is that you can back any estimated late payment charges using this theory. If you direct debit wasn't paid, you didn't pay your bill. Obviously you might have, but if they haven't got the information to disprove it.

 

Just a thought.....

 

What I could show is the statements from those months from my Barclays account anyway and if there are paid referrrals, unpaids out showing then it could persuade the judge that i was struggling to pay outgoings so the likelyhood of a late payment is significantly higher.

 

Just a thought.

[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

[TANZARELLI]

Thanks Glenn,

 

That useful to see the other side of the arguement. I will have to do some thinking, and as you say it may be better to do this part as a seperate action as I dont want to jepordise the other claim.

 

I will mull it over, but would also wecome some info from anyone who has been in a similar situation and been successful.

 

Nice one.

 

Tanz

[bill-k]

Interesting alternative pathway, Glenn. I have an estimated claim going back to 1983 which I'm sitting on, but they have (finally) almost complied with my DSAR back to 2000, so I can't really claim damages for further back, can I ? I have telecon recording and true copy of contract to go.

 

Certainly worth considering in your case, though, Tanz ?

 

It does keep the issue separate from your primary claim, lessening any risk, presumably.

[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

[bill-k]

Temp Hijack again, Tanz - hope we're still mates !!

If they have provided data back to 2000, and said that's it - there is no more - how do we go about proving otherwise ? I have badgered them for every last drop of data (and still going), but if they say it's not there, then I have to accept that, don't I ? The only last piece of info left is the clear statement to that effect, detailing time & method of disposal, etc. ?

 

How do we "shoe-horn" any more out of them ?

 

If I just need a thread-link, please post (or give ma clue !!!)

 

Cheers guys.

[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

[bill-k]

Well, I s'pose this is a bit on-topic, really.....

 

Yes, Glenn, so far the Grail hasn't turned up - just imitations, as you say !!

 

Do I just keep badgering, then ?

 

Sorry for spoonfeeding request.

[TANZARELLI]

Feel free, i like a good debate, just grabbing 5 mins as at work

[isidore]

Would there not be any benefit from just anonymously walking into a branch or ringing customer services and simply trying to worm an answer out of them?

 

I don't know how you could get enough of an answer to be proof enough to use in court but from my experiences reading in the RBS forums, branches seem to be a lot more helpful / customer friendly than our friends in the data protection team.

 

Ultimately, you would need to have something signed and I can't see anyone being stupid enough to sign it without wondering why it's needed. RE what Glenn said about Barclays, I guess if you at least had word of mouth confirmation of exactly HOW far back their data goes it's better than where you are now?

[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

[TANZARELLI]

This is the same as what I want from Bcard, and Adrian Whalley states he will ask someone at the top if any electronic copies have been made when my stuff was destroyed in relation to transactional account data. However I would have thought that if he didn't know then who else would, or does the person who shreds the info/burns it secretly take notes for a higher being? lol