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Shell Energy - Failure to disclose data


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55 minutes ago, Intrepid said:

I'm not talking about myself and I'm talking 4 hours notice.

 

I never inferred you were....as long as the above form has been submitted and processed in time then I really cant see a valid objection.

 

Notice of change of solicitor

2.1 Rule 42.2(1) sets out the circumstances following which a notice of the change must be filed and served.

2.2 A notice of the change giving the last known address of the former assisted person must also be filed and served on every party where, under rule 42.2(6):

(1) the certificate of a LSC funded client or assisted person is revoked or discharged,

(2) the solicitor who acted for that person ceased to act on determination of his retainer under regulation 83 of those Regulations, and

(3) the LSC funded client or the assisted person wishes either to act in person or appoint another solicitor to act on his behalf.

2.3 In addition, where a party or solicitor changes his address for service, a notice of that change should be filed and served on every party.

2.4 A party who, having conducted a claim by a solicitor, intends to act in person must give in the notice an address for service that is within the United Kingdom5.

2.5 Subject to paragraph 2.7A, practice form N434 should be used to give notice of any change. The notice should be filed in the court office in which the claim is proceeding.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part42/pd_part42

 

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Posted (edited)

Ombudsman Services lost the hearing, the judge awarded the sum claimed of £100 for distress, plus the fixed costs related to bringing the claim.

 

The hearing was held via Cloud Video Platform.

The pin to enter the video call was invalid until a few minutes prior to the hearing.

4 hours prior to the hearing The Ombudsman served notice that they had appointed a representative to defend them as it turns out by way of attacking my claim rather than making any significant points of defence, quite simply because there were none.

 

To my surprise the Defendant did not submit any further documents to the Court beyond their defence, when I asked the Defendant's solicitor about this prior to the hearing they rather obstinately responded "what do you think a witness statement is?". Perhaps those more experienced at hearings would comment on how common it is for a Defendant not to provide a WS beyond their initial defence. I was just making sure I was not about to be blindsided.

 

Despite only being provided with a paper copy, the Defendant's representative had obtained an electronic copy of the bundle.

The judge also had a copy of the e-bundle despite the court's admin team indicating they would not and did not process the e-bundle provided due to it being in excess of 50 pages.

The first point of contention was the right of action. The Defendant's representative disputed the right of action under section 168 on the basis my claim was in breach of the Act itself and not GDPR thus I should have referred to section 169. I pointed out that as the DPA 2018 is the UKs implementation of GDPR that where the breach occurs under the act it must also have occurred under GDPR. The judge did not dwell on the point and accepted that section 168 applied and I expect in future I could make the claim under both sections in order to avoid the point in future.


The Defendant's representative attempted to misrepresent my evidence, that the data that was missing from the disclosure did not fall within the remit of the disclosure, however perhaps due to me interrupting at this important point the judge very quickly and perhaps deliberately and kindly made it clear that what the Defendant's representative was not correct on this point. To avoid this being an issue in the future, issuing a request without limitation would probably be the best course of action at the low risk of a request being overly arduous as to warrant a fee.

The judge did hone in quite deliberately on definitions of the DPA 2018 in particular "data" and "processing" which then directly defer to the definitions in GDPR Article 4. The Defendant's representative tried to argue the definitions did not apply to the missing data, however these definitions are incredibly wide and it would be very difficult for data not to be captured by these definitions.

I was denied a request for costs on an indemnity basis under 27.14 (g) stating the Defendant did not respond to my letter of claim.

Points for the future would be to include more statutory material in the bundle to perhaps avoid wasting time with questions from the Defendant's, representative who obviously had read my witness statement but in view or their role asked every question as if they hadn't.

Please do not close or mark this thread just yet as there is still the claim to heard with reference to Shell Energy.

 

 

Edited by Intrepid
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Settlement offer received from Shell Energy regarding the claim for their breach of the Data Protection Act 2018 ("DPA") attached below.

 

A few points of interest.

 

1. The letter was sent by post - signed for. Delivery was signed for without my permission by Royal Mail while I was out of the country. I expect the Shell Energy will attempt to present this offer in reference to my claim for costs should I be successful, however I will show that the signature is not mine and have proof that I was out of the country.
 

2. The settlement offer does not satisfy the total amount of the claim as it does not include an amount for the hearing fee. I would expect that any serious offer days before a hearing would also include the cost of the hearing fee as it will be known to have been paid.

3. The settlement offer explicitly states without admission of liability. Shell Energy's breach of the DPA is ongoing and so I do not think justice is served by giving away my rights to data access indefinitely for the sum claimed.

If Shell Energy do not provide the data requested and evidenced to have been withheld then I expect that a further claim will be brought. In addition Shell Energy have made further effort to withhold data following a subsequent access request. A successful judgement will cement that Shell Energy has yet again breached the DPA in response to the later Subject Access Request they received.

4. As the offer was received via post there is no time to respond and I will simply present my case to the judge which I am hoping will be even more straight forward than the hearing vs The Ombudsman Service Limited last week which resulted in judgement in my favour.

5. Shell Energy have now accused me of being vexatious, as a result of their accusation it is now significantly more important that I secure judgement successfully and present this to the Court in response to their Defence in other matters.

CAG - SE - Incomplete Disclosure - Settlement Offer 10.05.22 - Redacted.pdf

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The interaction with the Court was an interesting experience.

 

In brief the hearing has been adjourned.

 

The offer made by Shell Energy and referred to above was enough for the judge to decide not to hear the claim and it will be adjourned to the first available date in accordance with available dates to be provided by myself.

I advocated for the fact the hearing should take place in any case as the offer will not be accepted but the Court could not be persuaded.

This now means I have time to respond to their offer and reject it in full on the basis that they have not resolved the outstanding issues within the claim and that they still are withholding missing data.

 

I also reject the offer on the basis that it was made clearly after further costs had been incurred such as paying the hearing fee.

Below is a proposed rejection of their offer.

 

Quote

Dear xxx,

 

Claim reference xxxx.

 

I write in reference to the letter sent on behalf of Shell Energy Retail Limited (“Shell Energy”) dated 10th May 2022.

 

Your offer in full and final settlement of the claim referenced above is rejected in full.

 

Any payment received will be returned.

 

Your breach of statutory duty is on-going and your failure to comply with your statutory obligations is an important matter of record. The Court will understand that your offer made with no admission of liability is nothing more than an attempt to wriggle out of your obligations.
 

Your offer, which was made only after significant time and costs have already been invested by the Claimant and received hours prior the claim was due to be heard, does not account for the costs that have been incurred by the Claimant and could have been avoided should you have acted reasonably and in accordance with the law.

 

Yours,

 

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On 15/05/2022 at 14:11, Intrepid said:

A few points of interest.

 

1. The letter was sent by post - signed for. Delivery was signed for without my permission by Royal Mail while I was out of the country. I expect the Shell Energy will attempt to present this offer in reference to my claim for costs should I be successful, however I will show that the signature is not mine and have proof that I was out of the country

 

 

Thanks for the update. Just a comment on the Signed For service.

 

Royal Mail have never been required to deliver letters only to the named individual. They say they deliver it to the address and ask for the signature of someone resident at the address to sign for it on behalf the person named on the letter.

 

But during Covid they made a further change in their generall T&C  to reduce the risk of Covid spreading through contact with their signing pads. According to their website:

 

"Temporary Coronavirus-related changes. All Signature services. 

 

We’ve put in place a temporary procedure for those services where we would normally capture a recipient’s signature on delivery in the UK. For items delivered on or after Saturday 14th March 2020, our postmen and women will not request a signature but will capture the recipient’s name and will ensure they take in the item. You can still check that we have obtained confirmation of delivery and who we delivered to by tracking your parcel at www.royalmail.com/track-your-item (where you may see a special code, ‘XP1’ instead of signature).  As a result, we will not consider refunds or compensation requests for not capturing a signature for items delivered on or after Saturday 14 March 2020 and until further notice."

 

Was it signed for by XP1?

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Thanks I am aware of these changes but you have certainly saved me the time in searching for them again.

 

The item was not signed for by XP1 nor was it signed for by anyone at the address. It most almost certainly signed for by the post-person.

I have recollection that this could only be done with your agreement and it is not something I have agreed to.

I will address the matter at some point but for now other priorties exist.


I have to say, having thought more about the adjournment that something doesn't sit right about the fact a Defendant can avoid judgement when failing to attend Court simply by way of having made an offer. Otherwise every Defendant in the land would make offers at the last moment and then exercise their liberty to not attend a hearing on the basis of sorry guv' I thought we'd settled the matter.

I decided not to raise the issue of the Defendant's accusation of vexatious litigant so as not to plant the idea in the mind the Court, however that is certainly one of the strongest motivators in order to refuse any settlement without admission of liability. I don't think the Court will take such accusations that seriously and given the Court awarded in my favour against the Ombudsman it's pretty clear at least to one member of the Court that the previous claim I have brought had merit.

Perhaps I didn't advocate strongly enough for the hearing to proceed, perhaps I was under the incorrect impression that the judge could not be persuaded in any case to hear the claim or I lacked the credible arguments in order to do so, either way the day in Court will eventually happen.

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Attached below is a settlement offer received from Shell Energy regarding the claim for harassment.

 

A few points of interest.
 

The settlement offer is made in full and final settlement and without admission of liability.

The claim was issued at the time when Shell Energy had sent three harassing messages to my phone.

Shell Energy eventually sent in total 20 harassing text messages.

I am unsure whether accepting their offer will forgo my right of action to the remaining messages and currently I do not wish to give this up.
 

To summarise the options are:

 

1. Accept the offer, then issue a claim for the remaining 17 messages or in order to keep the claim small a further 3 messages.

This risks Shell Energy claiming the matter was settled in full and where they have stated they do not admit liability I can see how they would attempt to construe an acceptance of their offer as agreeing they are not liable, even if I explicitly state that I reserve my rights.

2. Reject the offer, continue the claim and should it be successful this makes the likelihood of success in respect of the remaining messages much higher.

Considering Shell Energy have already used the opportunity of an offer to dodge one hearing I do not intend to provide them with an opportunity to do the same again.

Shell Energy have accused me of being vexatious, as a result of their accusation it is now significantly more important that I secure a successful judgement and present this to the Court in response to their defence in other matters.

Despite Amy Franks writing the letter for Shell Energy she does not appear to be an employee of Shell Energy and instead appears to be a senior associate solicitor for Eversheds Sutherland. This is probably an indication that Shell Energy are taking advice on the matter rather than using their in house compliance manager who submitted and signed their defence.

Shell Energy state that settlement has been offered for economic reasons, maybe that is true or maybe they have been advised that they will lose or that no one will take their case for the sums involved on a claim allocated to the small claims track.

As with the Ombudsman I now expect that Shell Energy will duck out of any future hearing and instead eventually notify me much closer to the time that they have appointed a representative.

I propose the following reply.
 

Quote

Dear XXXX,

 

Claim reference XXXX.

 

I write in reference to the letter sent on behalf of Shell Energy Retail Limited (“Shell Energy”) dated 10th May 2022.

 

Your offer in full and final settlement of the claim referenced above is rejected in full.

 

Any payment received will be returned.

 

You will be aware from your own records that Shell Energy ignored the Cease and Desist letter you received and continued its campaign of harassment. Shell Energy sent a total of 20 harassing text messages to my personal mobile phone on a near daily basis, over a number of weeks.

 

If you are serious about seeking an out of court settlement in respect of this dispute, I expect that you sensibly compensate me for the distress you have caused me and the value to you of avoiding a court judgement against you.

 

CAG - SE - Harassment - Settlement Offer 10.05.22 - Redacted.PDF

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