The defendant has made an application to strike out my claim

[mars3424234]

The defendant has made an application to strike out my claim, they are requesting that my claim is struck out without a hearing.

 

How do I request the Court to make a Hearing so I can dispute their application?

 

They have sent me a copy of the application, do I wait for the Court to set a hearing date? When do I write my witness statement?

 

Thank you

[honeybee13]

Hi.

 

Is this to do with your dispute with a builder that you posted about?

 

HB

[mantis shrimp]

Begin work on your statement now. 

 

You will receive from the court a notice giving the date and time of the hearing. But if you have been sent a copy of the application and supporting statement, make good use of the additional time you have been given. 

[mars3424234]

34 minutes ago, honeybee13 said:

Hi.

 

Is this to do with your dispute with a builder that you posted about?

 

HB

Hi, no it is unrelated to my building claim

[mars3424234]

The Defendant is applying to strike out my claim because they are saying that my particulars of claim do not demonstrate a cause of action.

 

They are incorrectly interpreting my particulars of claim to mean something else. (I believe on purpose to argue that my claim isn't clear) and they are claiming £1000 in costs although my claim is very low  in value.

 

They just fired off an application to strike out as soon as they saw my claim without communicating with me.

 

My letter of claim to them was clear and elaborated on the claim fully, however they did not respond to my pre action letters and I assume they are going to argue that they did not see this letter although I have proof of postage...

 

I am intending to argue the following in defending the application to strike out my claim :

 

they have received my letters and therefore it is clear what my claim is relating to

they did not communicate before they fired off their application to strike out (they did not respond to my letter of claim which I believe is a breach of the CPR rules, therefore had they complied with the pre action communications they would not be able to manoeuvre in saying they did not understand my particulars of claim)

 

Thank you in advance

 

 

[AndyOrch]

Post a copy of your Particulars here (verbatim) and a copy of their N244 and statement for opinion.

 

Andy

[mars3424234]

The costs are £1k, if there's a Court hearing and they come all the way to my city can it increase up to 2k or more? I am really scared and I wish I did not begin any court claim...

 

I have attached my Particulars of claim and the Defendants strike out application.

 

Context:

 

1. I sent a DSAR in 2021 by email in which the Defendant company responded. I wasn't satisfied at first with the response and I complained, however I did not take it further after I read the response to my complaint.

 

2. I sent another DSAR in 2022 by letter to the Defendant in order to view any new data relating to me (its an insurance company, a fraudulent claim was made on my insurance a while back without the outcome and I was checking for any new data)

 

3. My new SAR letter in 2022 was accompanied by a letter of claim (saying that if they dont provide my data within 30 days i will make a claim)

 

4. As there was no response I made my claim (with the particulars of claim attached)

 

5. The Defendant made an application to strike out my Claim several days later. I have attached their application.

 

Basically they're saying that my Claim has no cause of action, and they are incorrectly referring to my DSAR I made in 2021 , they argue that they already provided all the data and there is no statutory breach.

 

However I am not claiming for this, I am claiming for the breach of my DSAR in 2022 because they did not make any response within 30 days (and still no response).

 

My Particulars of Claim:

 

The Defendant has breached their statutory duty under the Data Protection Act Section 45 Subsection (3) for the Claimant's request.

 

The claim amount is being claimed pursuant to
Section 168 Subsection (1) of the Act.

 

(S 45 states must provide data within 30 days, and S 168 states compensation for distress)

 

Defendant's Legal representative:

 

 

Application notice

 

What order are you asking the court to make and why?

 

We X on behalf of the Defendant intend to apply for an order (a draft of which is
attached) that:

1. Summary Judgment is entered for the Defendant.
2. The Claimant’s claim is struck out.
3. The Claimant shall pay the Defendant’s costs of this action, summarily assessed in the sum of
£960.80, within 14 days of the date of this Order

because the Defendant has complied with its statutory duties and the Claimant has no cause of action against the
Defendant.

 

 

WITNESS STATEMENT
1. I make this statement in support of the Defendant's application for summary judgment and/or to
strike out the Claimant's claim.
2. I am a partner in X and have conduct of this matter on behalf of the
Defendant.
3. The Claimant has presented a claim seeking damages for alleged breach of the Data Protection
Act 2018, Section 45 (3), following a subject access request he made in 2021.                         < Incorrect, my claim is for my latest DSAR in 2022. my letter of claim was sent to them with no response)

4. I exhibit to this statement marked "DMW 1" a series of emails dating from 7 June 2021 to 18 July
2021 between the Claimant and the Defendant's Information Rights Team in relation to the
Claimant's subject access request.

5. The Claimant presented a subject access request, to which the Defendant's Information Rights
Team responded on 7 June 2021.

6. Section 451) – (3) of the Data Protection Act 2018 provides as follows:
(1) A data subject is entitled to obtain from the controller—
(a) confirmation as to whether or not personal data concerning him or her is
being processed, and
(b) where that is the case, access to the personal data and the information set
out in subsection (2).
(2) That information is—
(a) the purposes of and legal basis for the processing;
(b) the categories of personal data concerned;
(c) the recipients or categories of recipients to whom the personal data has been
disclosed (including recipients or categories of recipients in third countries or
international organisations);
(d) the period for which it is envisaged that the personal data will be stored or,
where that is not possible, the criteria used to determine that period;
(e) the existence of the data subject’s rights to request from the controller—
(i) rectification of personal data (see section 46), and
(ii) erasure of personal data or the restriction of its processing (see
section 47);
(f) the existence of the data subject’s right to lodge a complaint with the
Commissioner and the contact details of the Commissioner;
(g) communication of the personal data undergoing processing and of any
available information as to its origin.
(3) Where a data subject makes a request under subsection (1), the information to which
the data subject is entitled must be provided in writing —
(a) without undue delay, and
(b) in any event, before the end of the applicable time period (as to which see
section 54).

7. This claim is presented not on the basis of a failure to provide information, but instead in relation
to a dispute as to whether the extent of the information provided complies with Section 45 of the
Data Protection Act. The Claimant's claim is premised upon the basis that the data was not
provided without undue delay or before the end of the applicable time period, whereas it is clear
that the information was provided in June 2021 and, as set out in the Claimant's email of 10:09 of
8 June 2021, exhibited to this statement and marked "DMW 1", whether or not the Claimant is
entitled to information in relation to a personal injury claim presented against him.                         >> Incorrect they are talking about a totally different DSAR which I'm not claiming about)

 

8. The Claimant's Particulars of Claim, as set out in the Claim Form do not particularise the alleged
breach. However, the email chain makes it clear that the Claimant seeks information in relation
to a third party's personal injury claim against him. >> Incorrect my new DSAR 2022 asks for all data relating to me

9. The Data Protection Act 2018, Section 3 (2) defines personal data as ‘any information relating to
an identified or identifiable living individual’.

10. Data in relation to the third party's personal injury claim does not relate to the Claimant.

11. Whilst the Claimant seeks access to data in relation to the third party's personal injury claim in
relation to him, the Defendant maintains that it is not lawful, in accordance with Article 6 of the
General Data Protection Regulation, for the Defendant to give to the Claimant information in
relation to the third party's personal injury claim.

12. There are 6 lawful bases for processing data set out in Article 6(1) of the General Data
Protection Regulation, as set out below:
a) the data subject has given consent to the processing of his or her personal data for
one or more specific purposes;
b) processing is necessary for the performance of a contract to which the data subject is
party or in order to take steps at the request of the data subject prior to entering into a
contract;
c) processing is necessary for compliance with a legal obligation to which the controller
is subject;
d) processing is necessary in order to protect the vital interests of the data subject or of
another natural person;
e) processing is necessary for the performance of a task carried out in the public interest
or in the exercise of official authority vested in the controller;
f) processing is necessary for the purposes of the legitimate interests pursued by the
controller or by a third party, except where such interests are overridden by the
interests or fundamental rights and freedoms of the data subject which require
protection of personal data, in particular where the data subject is a child.

13. The Defendant submits that the Claimant's request for data in relation to the third party's
personal injury claim does not fulfil any of the requirements of Article 6, as it is neither necessary
for the 5 reasons set out in paragraphs (b) – (f), nor has the third party given consent to the
processing of his or her personal data for the purpose of providing it to the Claimant.

14. On behalf of the Defendant, I respectfully submit that the Claimant's claim has no merit and invite
the Court to strike out the claim or grant summary judgment on behalf of the Defendant.

15. The Claimant seeks damages, on the basis of Section 168 of the Data Protection Act 2018.
Section 168 provides that, in accordance with Article 82 of the General Data Protection
Regulation, non-material damage includes distress. Article 82 of the General Data Protection
Regulation provides that a person who has suffered material or non-material damage as a result
of an infringement of the Regulation shall have the right to receive compensation from the
controller or process for the damage suffered.

16. The Claimant has not particularised any damage suffered in this matter, nor has he set out any
distress. The Defendant avers that the Claimant has not suffered material or non-material
damage such as would cause him to be entitled to recover compensation from the Defendant
and avers that the claim should be struck out.

17. I respectfully invite the Court to strike out the Claimant's claim and/or award summary judgement
in the Defendant's favour, and to order that the costs of and occasioned by this matter should be
paid by the Claimant.

 

 

Schedule of work done on documents

1 Drafting Notice of Change HOURS 0.1           £12.60

2 Drafting Defence HOURS 0.2                            £52.20

3 Drafting Application, Order and supporting statement  HOURS 0.8                   £208.80

4 Drafting Costs Form 1 HOURS 0.2                                               £52.20

5 Perusal of Order made HOURS 0.1                                            £26.10

 

£351.90

 

 

COURT FEES £275.00

Others (give
brief description)

Total £ 846.50
Amount of VAT claimed
on solicitors and counsel’s fees £ 114.30

on other expenses

Grand Total £ 960.80

 

 

 

My arguments so far:

 

My letter of claim to them was clear and elaborated on the claim fully, they did not engage/co-operate in any pre action communication. had they done so they wouldn't have been able to manoeuvre and say they believe my claim is referring to my old DSAR

 

on the balance of probabilities they are in receipt of my letter of claim, therefore it is unreasonable their implying that they think my claim refers to another DSAR

 

Edited July 4, 2022 by mars3424234

[mantis shrimp]

Your Particulars of Claim are nowhere near as clear as your summary of events. Did you ever receive an acknowledgement of your 2022 SAR? 

 

As quoted by you, the application notice and witness statement do not appear to comply with Practice Direction 24 para 2.3(b).

 

PRACTICE DIRECTION 24 – THE SUMMARY DISPOSAL OF CLAIMS - Civil Procedure Rules

WWW.JUSTICE.GOV.UK

 

Edited July 4, 2022 by mantis shrimp

[The GodMother]

well l call BS on how long it took to draft the application order and supporting statement and drafting the costs form. 

 

[mars3424234]

My main argument is that they are in receipt (on balance of prob) of my SAR 2022 letter and my letter of claim.

 

Regardless of this they chose to insist that my emails in 2021 are what my claim is about by saying:"

 

". The Claimant has presented a claim seeking damages for alleged breach of the Data Protection
Act 2018, Section 45 (3), following a subject access request he made in 2021.

 

However, the email chain makes it clear that the Claimant seeks information in relation
to a third party's personal injury claim against him"

 

I'm arguing that they're (alleged) confusion is unwarranted as my most recent communications make it clear that I am intending to claim for my newest request dated 2022...

 

it seems to me they are purposefully taking advantage of the fact that my particulars of claim does not mention the exact date of my DSAR referred to in my claim, to pretend to confuse my claim with my old DSAR in 2021. Although my new letters which are on their system are clear.

 

They have:

 

1. ignored my letter of claim and my DSAR 2022 sent by letter

2. viewed their system and see my new letter for DSAR 2022 and letter of claim, and view my old emails in 2021.

3. insist that my claim is about my old SAR in 2021 and without asking for any clarity (on which DSAR my claim refers to) if they required, immediately fire of an application to strike out and supposedly spend hours on these documents.

 

(Also, technically, they are claiming that in my older DSAR dated 2021 that they provided all the data relating to me, that is their claim. However there is no evidence of that. I presume only the ICO can confirm such by reviewing their files...)

 

 

is what I'm writing making any sense? Please can the experts assess my defence, and let me know whether I should just pay the £1k in case the costs increase if it goes to a hearing.

 

My claim is only for a very small amount of money but they're claiming £1k..

 

 

[mantis shrimp]

That is the point. In your claim you do not specify the latest SAR. They think your claim is about the earlier one. It is a misunderstanding that can be easily cleared up.