Martinix v Barclaycard

[martinhw]

Sent S.A.R - (Subject Access Request) on 15th December 2006.

 

Yesterday I got this letter from them in response to the S.A.R - (Subject Access Request).

 

Further to your request for copy statements (I actually requested a full SAR with recorded calls and all manual intervention, not just statements - when are you going to learn to read?), we are writing to inform you that the legal time limit for supplying this information is about to expire. (It just did!) If your initial complaint was through the Information Commissioner the time scale is 28 days. If this is your first request the legal time limit is 40 days.

The reason for the delay in our providing this information is the very large number of identical requests that we have received, all of which we are obliged to respond to within the same timescale. The recovery of some of the information you have requested from archive is a lengthy and laborious process and we are reviewing our staffing position to put us into a better position to deal with the demand. (Yet when millions of us went overlimit or paid late - you have the staff to charge us)

We have made the Information Commissioner's Office aware of the volume challenges we face and that we are writing to you in these terms. We are sorry for the delay but assure you that we will let you have your statements as soon as we can. (I suggest hiring more people)

We regret that we are not able to enter into correspondence with you about this issue.

 

 

As their time for SAR is up, I am going to send the non compliance letter.

[martinhw]

SAR sent recorded delivery on 15/12/2006.

[martinhw]

SAR reminder letter sent 22/01/2007:

 

Data Protection Team

Dept LRC

Barclaycard

Northampton

NN4 7SG

22/01/2007

Data Protection Act 1998

Reminder Letter (Section 7)

 

Dear Sir/Madam,

Account No. 1111 1111 1111 1111

You have 5 days remaining in which to comply with my Data Protection Act Subject Access Request dated 15/12/2006. This item was sent via Royal Mail Recorded delivery with the tracking number XXXXXXXXXXXX.

 

If you do not comply within the next 5 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

 

 

Yours faithfully,

Martinix

Enc: Copy S.A.R dated 15/12/2006

[martinhw]

Received a response to my reminder:

 

Dear Mr XXXXXXX

SUBJECT REQUEST ACCESS NUMBER: 310

Further to your request for copy statements, we are writing to inform you that the legal time limit for supplying this information is about to expire. If your initial complaint was through the Information Commissioner the time scale is 28 days. If this is your first request the legal time limit is 40 days

The reason for the delay in our providing this information is the very large number of identical requests that we have received, all of which we are obliged to respond to within the same timescale. The recovery of some of the information you have requested from archive is a lengthy and laborious process and we are reviewing our staffing position to put us into a better position to deal with the demand.

We have made the Information Commissioner's Office aware of the volume challenges we face and that we are writing to you in these terms. We are sorry for the delay but assure you that we will let you have your statements as soon as we can.

We regret that we are not able to enter into correspondence with you about this issue. Yours sincerely,

Adrian Whalley

Head of Privacy & Data Protection

Legal Counsel

Data Protection Team

Legal and Regulatory Compliance

Dept LRC

[martinhw]

Sent a response on 30/01/2007:

 

Adrian Whalley

Head of Privacy & Data Protection

Legal Councel

Data Protection Team

Dept LRC

Barclaycard

Northampton

NN4 7SG

30/01/2007

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

 

Dear Mr. Whalley

 

Account No. 1111 1111 1111 1111

 

You have failed to comply with my Data Protection Act Subject Access Request dated 15/12/2007, and also my reminder letter dated 22/01/2007.

You have however sent a letter dated 25/01/2007 in acknowledgement of my Subject Access Request. I would like to point out that my request was not merely for copies of my statements, as you have indicated. I have quoted from my original request below:

“Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.”

 

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

 

Yours faithfully

 

 

 

Martinix

Enc: Copy S.A.R dated 15/12/2006

[martinhw]

Today Barclaycard has defaulted by not responding to my

- SAR dated 15/12/2006

- SAR reminder dated 22/01/2007

- SAR LBA dated 30/01/2007

 

What is the next action I am required to take or how do I get a court order forcing Barclaycard to comply?

[jimmyay]

ok martin well seing as we're at the same stage with barclaycard i shall follow your case with interest.

[steve2603]

Hey Guys I'm in exactly the same boat. Sent Barclaycard a LBA on the 29th Jan giving them 7 days to provide me with SAR or I'd take them to court.

 

Deadline now passed & although I'm clued up on MCOL I'm not exactly sure what I am claiming for as I don't have a definative figure (cause the wont give me my statements). I've looked & looked but cannot find a standard claim to use in MCOL. Any ideas??

 

Cheers ---------- Steve.

[martinhw]

I wanted to use MCOL, but this is a request for an order of disclosure and additionally for compensation of non compliance. MCOL is purely for claiming money and I am using the N1 form to obtain the order and compensation.

 

There are some that are asking for around 350.00 in compensation, but I am basing my claim on 9.00 per hour plus court fee and travel expenses. I am more interested in getting my info than claiming compensation.

[segaman]

The Subject Access Guide which is available for download from the Information Commissioners website states:-

WHAT CAN I DO IF THE DATA CONTROLLER DOES NOT COMPLY WITH MY SUBJECT ACCESS REQUEST?

If the data controller fails to respond to your request within 40 days, or fails to respond

to your satisfaction, and you have sent all the information required to the data controller to enable him to deal with your request, including the fee, you should send

the data controller a reminder by recorded delivery, keeping a copy of your letter.

If you still do not receive a reply fairly quickly or if you think that the information you

receive is wrong or incomplete you may:

• ask the Commissioner to carry out an assessment as to whether it is likely or

unlikely that the data controller is processing your personal data in compliance with the terms of the Act;

• pursue the matter yourself through the court. For information as to how to do

this please refer to the leaflet called “Taking a case to court”.

An assessment will inform you as to whether the matters that concern you are likely to involve a breach of the Act and may help you in making a decision as to whether to take legal action against a data controller under the Act. However, an assessment from the Commissioner is not necessary to take a case to court.

WHAT ORDERS CAN THE COURT MAKE?

If a court is satisfied that a data controller has failed to comply with a subject access

request contrary to the provisions of the Act, the court may order him to comply with

such a request. The court also has the power to award compensation. Please refer to the leaflet called “Claiming compensation”.

Therefore you should be able to get an order from the court ordering Barclaycard to comply with your SAR and you may also be awarded compensation for the delay.

The above documents can be found here:-

Subject Access - A Guide for Data Subjects - http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/subject_access_-_guide_for_data_subjects.pdf

Taking a Case to Court - http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

Claiming Compensation - http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/claiming_compensation.pdf

[fab1969]

The Subject Access Guide which is available for download from the Information Commissioners website states:-

 

WHAT CAN I DO IF THE DATA CONTROLLER DOES NOT COMPLY WITH MY SUBJECT ACCESS REQUEST?

If the data controller fails to respond to your request within 40 days, or fails to respond

to your satisfaction, and you have sent all the information required to the data controller to enable him to deal with your request, including the fee, you should send

the data controller a reminder by recorded delivery, keeping a copy of your letter.

If you still do not receive a reply fairly quickly or if you think that the information you

receive is wrong or incomplete you may:

• ask the Commissioner to carry out an assessment as to whether it is likely or

unlikely that the data controller is processing your personal data in compliance with the terms of the Act;

• pursue the matter yourself through the court. For information as to how to do

this please refer to the leaflet called “Taking a case to court”.

An assessment will inform you as to whether the matters that concern you are likely to involve a breach of the Act and may help you in making a decision as to whether to take legal action against a data controller under the Act. However, an assessment from the Commissioner is not necessary to take a case to court.

WHAT ORDERS CAN THE COURT MAKE?

If a court is satisfied that a data controller has failed to comply with a subject access

request contrary to the provisions of the Act, the court may order him to comply with

such a request. The court also has the power to award compensation. Please refer to the leaflet called “Claiming compensation”.

 

Therefore you should be able to get an order from the court ordering Barclaycard to comply with your S.A.R - (Subject Access Request) and you may also be awarded compensation for the delay.

 

The above documents can be found here:-

 

Subject Access - A Guide for Data Subjects -

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/subject_access_-_guide_for_data_subjects.pdf

 

Taking a Case to Court -

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

Claiming Compensation -

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/claiming_compensation.pdf

 

Having read the leaflets, do I then send in my N1 form for a SAR request claiming Unliquidated damages?

 

I really only want the information!! Or should I just file for a Part 8 procedure??

[jimmyay]

i think its a case of just go to the court with the N1 form, though i have been slightly put off by others saying that court action shouldnt be taken until you have exhausted info commisioner route, ( who can take months to respond now they are being deluged with cases) but others ( and guidance on this site) disagrees and says you can jsut go for it.

 

i am about to send off the N1 but have hesitated , despite barclays being beyond 40 days and having sent my letters. i just want the info too. grateful.

 

i have taken on board claims of others and will also be charging £9p/h rather than £350 i originally thought, if i go with the N1.

 

Would appreciate like you martin some guidance from experts on this site.

[martinhw]

I finally got my statements and Data requested.

 

It's only 20 days LATE ! - but they are all there.

 

I got my info after sending a Final Demand as below:

Adrian Whalley

Head of Privacy & Data Protection

Legal Councel

Data Protection Team

Dept LRC

Barclaycard

Northampton

NN4 7SG

12th February 2007

Final Demand

Section 7 – Data Protection Act 1998

 

 

Dear Mr. Whalley

 

Account No. XXXXXXXXXXXX

You have failed to comply with my Data Protection Act Subject Access Request dated 15/12/2007, my reminder letter dated 22/01/2007 and my letter before action dated the 30th January 2007.

I now STRONGLY urge you to respond immediately with the information I have requested. Failure to produce this information within the next 7 days will result in legal action taken through the County Court.

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice. I will also register a complaint with the Information Commissioners Office.

 

Yours faithfully

 

Me

[martinhw]

Just drafted my prelim letter and is ready to post:

 

Request for repayment of charges

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: XXXXXXXXXXXXX

My request

I am writing to ask you to refund to me the charges which you have levied from my account over the last 6 years.

I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

What I require

I calculate that you have applied £600.00 in levies and charges, further, I also claim interest at a rate of 27.95% APR as set out in the attached list of charges. I believe this rate to be justified under the principle of mutuality and reciprocity, and is based on your Purchase interest rate that would be applied under the terms of the above mentioned account. Therefore the total amount owed as of today’s date is £1140.62.

I am enclosing a copy of the schedule of the charges which I am claiming.

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosities caused directly by the taking by you of penalty charges which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above, I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

 

 

Yours faithfully,

 

[martinhw]

Got the following response from BC today.

 

Thank you for your recent letter, your details have been passed to me in order that I may respond in my capacity as Customer Relationship Manager.

I am sorry you feel the charges you have incurred are unfair. We believe that our charges are both fair and transparent, and we make them clear in our Terms and Conditions, and on the reverse of every monthly statement.

In your correspondence you have outlined a legal argument which you say supports your view. As I am sure you will appreciate Barclaycard is aware of all the information you have drawn to our attention. I must inform you however, that we disagree with your legal analysis.

Putting the above to one side, as a goodwill gesture and without any admission of liability, I am prepared to credit your account with the difference between the charges that you have incurred and the £12 fee recommended by the OFT. This would amount to £300.00. The credit will be reflected on your next statement.

May I take this opportunity to remind you that the best way to avoid similar charges in the future is to remain within your credit limit and ensure that your monthly payment reaches us with the required timeframe.

Should you have any further questions regarding this matter please do not hesitate to contact me. If my reply does not meet with your expectations you may ultimately be eligible to refer to the Financial Ombudsman Service. Further details of this service are available on request. If I have not heard from you within 8 weeks from the date of this letter, I will close my complaint file in accordance with our usual practice.

Yours sincerely

Tracy Burgess

Customer Relationship Manager

[martinhw]

Sending rejection letter today:

 

Thank you for your letter dated 20 February 2007.

 

I respectfully decline your offer of settlement and request, once again, that you return to me all charges imposed on this account, totaling £1145.87.

I will accept the sum offered only as part settlement and on the clear understanding that I will pursue recovery of the remainder, with a County Court claim if necessary.

Deducting your part settlement offer of £300.00, the balance payable immediately by you is £845.64.

 

I will accept the sum offered only as part settlement and on the clear understanding that I will pursue recovery of the remainder, with a County Court claim if necessary.

 

My Letter dated 15/02/2007 indicates that you have until 02/03/2007 to respond before I commence legal action. My deadline remains the same despite this offer.

I have also attached a relatively small schedule listing cases that have been filed against your company in their respective county courts. These cases have all been brought against your company in respect of your unlawful charges. You have constantly claimed that your charges are lawful and yet before any of these cases have been heard by a judge, your company has settled all claims in full calling them “Gestures of Goodwill”. I believe the courts will frown upon the constant waste of the Court resources and time. I urge you therefore to take this matter seriously and not treat it with the same contempt displayed prior.

Your letter goes further to reject my request to remove the default from my account. Again I urge you to reconsider your position on this matter, as court action will commence if I do not receive a satisfactory outcome to this matter, in both payment for the unlawful charges AND the removal of the default on my credit profile.

If you do not accept my conditions, or you do not respond within 7 days, I wish to stress that I do not accept your offer and the money transferred to my account should not be viewed as my acceptance. I hereby authorise you to remove this sum accordingly.

 

I trust this clarifies my position.

 

Martinix

Enc: Revised Schedule of Charges

[martinhw]

Got the following reply today for rejection letter:

 

I write further to your letter dated 21st February 2007. Your correspondence has been passed to me in order that I may investigate and respond in my capacity as Customer Relationship Manager.

I note that you are dissatisfied with our offer to refund £300.00, however, our position remains that we believe it is fair when customers' break the terms of their agreement with us, we recover the costs. Therefore, I am not prepared to consider your request for any further refund.

You have suggested in your letter that the charges levied by Barclaycard are penalty clauses and thus unenforceable. Although you have also outlined case law which you say supports your view and raised the operation of the Unfair Terms in Consumer Contracts Regulations 1999, we do not believe that the charges levied under the contract that you have with Barclaycard equate to penalty clauses. We equally do not agree that the contract between us is unenforceable or that our terms are unfair.

As previously advised, when your Barclaycard account was opened, you signed and agreed to our Terms and Conditions and this included details of our charges. The information provided at application stage clearly explains our obligations to our customers, as well as their obligations to us. If we make any changes to the Terms and Conditions we provide details of these to our customers.

I appreciate that this may not be the outcome you expected, however, I trust that the information I have provided has clarified Barclaycard's position

Should you remain dissatisfied you may ultimately be eligible to refer to the Financial Ombudsman Service. Please note that if I do not hear from you within 8 weeks from the date of this letter, I will close my file in accordance with usual practice.

 

My LBA still goes on the 5th of Feb.

[jimmyay]

Best of luck i'm keeping up with your story.

Barclays have til 12 march to respond under the "additional" 28 days that the information commmisioner told them they had. if not then i go to court and will also have to estimate the charges i have incurred and put it to barclycard and hopefully they'll refund me.........

[martinhw]

My post 12 letter actually got them to respond within a day or two.

Good luck with getting your info jimmyay. They were never the quickest to respond.

[sgr1234]

Martin I am at the same stage as you with Barclaycard, they sent me the same letter as you. What do we do now about getting the balance back. Do we wait until the LBA letter has run out and then file at court claiming balance plus interest?

[martinhw]

I will be sending my LBA on the 5th of March.

Once I have written it up, I will post it on here. I am claiming contractual interest and my claim also requires the default removal.

 

I know it will be removed, as Littlewoods, MBNA and Capital One have all suddenly disappeared from my credit profile last week. Not just the entry removals, but the entire account was taken off experian.

[jadebarton]

hi Martinix, I am at the stage of sending prelim and would like to know what figure you are using for contractual interest? and which spreadsheet you used? From what ive been reading it seems you need to use the cash advance rate but thats only 12.9%. So any help would be appreciated so I can get going with this claim.

 

Ive also just read martin lewis' latest news letter and hes saying we need to get in there with our claims as OFT will rule in March/ April that the charges should be £12 and banks will start to defend in court once they have these guidelines.

 

Thanks

 

Jade

[martinhw]

I am on 27.95%.

This figure is taken from my monthly purchase interest rate.

I am using Vamps Google spreadsheet. I understand Vamps chambers are undergoing a change and are unavailable, but I managed to save them before it closed.

 

As for the OFT - they are a body that may well investigate various issues, and issue GUIDELINES to the banks. The OFT guidelines are NOT LAW. This is a common misconception and Mr. Lewis does not explain it fully enough either in his newsletter or on the program with Trevor McDonald. If the OFT findings were law - we would now only be claiming the difference between 12 pound and whatever we are charged now. My opinion would be ignore Mr.Lewis and his comments until a law on charges has been passed, if it ever happens.

 

Banks may however change their policies and charge us via other methods, but it will not affect our claims. If you have started claiming, they can not retrospectively adapt a ruling or law.

 

What are your monthly purchase and monthly cash interest rates? I will work out your PER and APR's for you.

[jadebarton]

hi martin,

from looking at a actual statement ie december 2005. it states : Purchase annual rate 12.6% and cash annual rate 12.6%.

From looking at the printouts ie their copy of statements the only interest rate i can see is purchase interest which is 1.873% or 1.000% later on.

The card is a barclaycard initial visa card and i remember when getting it had one of the highest APRs.

 

So how on earth you begin to work out the rate of interest we should be charging them from those figures i dont know. if you could work it out for me could you explain how its worked out becuase im confused and need to do the same thing with cap 1 and egg.

 

thanks for your help and look forward to seeing the result.

 

Jade

[manchestman]

Hi Martin

thanks for your support and hope i can help here too. I will also be requesting removal of default notice as part of my claim for unfair charges.

 

I noted that steve2603, fab1969

Although Its several months since first SAR request and i now have all transactions (eventually), i am still missing data from my request. I am proceeding with my claim for non compliance under DPA and have filled in 'the gaps' from alanfromderby's great template and will submit a claim for the following, unless ALL my remaining personal data is forthcoming:

 

I believe that the contents of these particulars of claim are true

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

 

2. The Claimant had an account number 4929494849379008 ("the Account") with the Defendant which was opened at some time in 2003 and closed on or around 11th October 2006.

 

3. On 3rd March 2006 the Claimant sent an initial Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant. Further requests have been made.

 

4. The Defendant has failed to comply.

 

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has been unable to validate the purpose & legality of numerous amounts of money applied to the account; unable to validate the existence or legality of an alleged default notice; or to ascertain what, if any, notes, notices or documents have been passed or transferred to third parties; failed to supply a true copy of the original document and suffered damage.

 

6. The damage caused is:

 

Extra costs incurred in addition to court costs, due to the Defendant's failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £156...........

 

7. Compensation under s13 of the Data Protection Act 1998 at the discretion of the court.

 

8. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

 

9. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.