noomill v Barclaycard- SAR non-compliance**DAMAGES WON**

[noomill060]

I have come to the end of my patience with Mr Whalley and his friends.

 

I made an official complaint to the ICO in December and the IC subsequently wrote back with the standard letter that Barclaycard were in breach of the DPA and had instructed them to supply the info I requested under my SAR. (Transactional data 2001- Sept 2006)

 

After sending a LBA to Adrian Whalley, I recieved about half a dozen statements from late 2003-early 2004.

 

I intend to now issue proceedings to ask the court to order compliance with damages.

 

I dont want Barclaycard to simply deduct these damages and my costs from the outstanding amount.

 

To make it more interesting, Barclaycard defaulted me and have past the account onto a DCA. Last October I sent this DCA (Debt Managers Ltd) a CCA s.78 request which they have failed to respond to in any way and have been in criminal default since early December.

 

Should I make reference to this criminal default on the Particulars of Claim to prevent any damages and costs being knocked of this debt, the agreement of which is now unenforcable?

 

These are the Particulars of Claim, borrowed from the template in the library.

 

(The terms "Applicant" and "Respondant" have been used as these are the relavent terms used in the jurisdiction of Northern Ireland.)

 

 

 

 

PARTICULARS OF CLAIM

 

 

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

 

2. The Applicant has an account number ("the Account") with the Respondent which was opened on or around December 1999

 

3. On 19 September 2006 the Applicant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Respondent .

 

4. The Respondent has failed to comply, despite being directly instructed to do so by the Information Commissioner.

 

5. By virtue of the Respondent's failure to comply with the Subject Access Request the Applicant has suffered damage.

 

6. The damage caused is:

 

Extra costs incurred in addition to Court costs, due to the Respondent’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 £200.

 

7. The Applicant seeks an order that the Respondent do comply with the Applicants Subject Access Request

 

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

 

9.Due to the Respondant being in criminal default of s.78 of the CCA 1974 in relation to the account, Respondant to make settlement of any costs and damages awarded by the Court in the form of cleared cheque/ bankers draft to the Applicant within 7 days of judgement.

 

10. Damages and costs within the discretion of the Court.

 

 

 

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

 

 

Signed:

 

 

Date:

 

 

What do you think?

[tamadus]

I have come to the end of my patience with Mr Whalley and his friends.

 

I made an official complaint to the Information Commissioners Office in December and the Information Commissioner subsequently wrote back with the standard letter that Barclaycard were in breach of the Data Protection Act and had instructed them to supply the info I requested under my S.A.R - (Subject Access Request). (Transactional data 2001- Sept 2006)

 

After sending a LBA to Adrian Whalley, I recieved about half a dozen statements from late 2003-early 2004.

 

I intend to now issue proceedings to ask the court to order compliance with damages.

 

I dont want Barclaycard to simply deduct these damages and my costs from the outstanding amount.

 

To make it more interesting, Barclaycard defaulted me and have past the account onto a DCA. Last October I sent this DCA (Debt Managers Ltd) a CCA s.78 request which they have failed to respond to in any way and have been in criminal default since early December.

 

Should I make reference to this criminal default on the Particulars of Claim to prevent any damages and costs being knocked of this debt, the agreement of which is now unenforcable?

 

These are the Particulars of Claim, borrowed from the template in the library.

 

(The terms "Applicant" and "Respondant" have been used as these are the relavent terms used in the jurisdiction of Northern Ireland.)

 

 

 

 

PARTICULARS OF CLAIM

 

 

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

 

2. The Applicant has an account number ("the Account") with the Respondent which was opened on or around December 1999

 

3. On 19 September 2006 the Applicant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Respondent .

 

4. The Respondent has failed to comply, despite being directly instructed to do so by the Information Commissioner.

 

5. By virtue of the Respondent's failure to comply with the Subject Access Request the Applicant has suffered damage.

 

6. The damage caused is:

 

Extra costs incurred in addition to Court costs, due to the Respondent’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 £200.

 

7. The Applicant seeks an order that the Respondent do comply with the Applicants Subject Access Request

 

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

 

9.Due to the Respondant being in criminal default of s.78 of the CCA 1974 in relation to the account, Respondant to make settlement of any costs and damages awarded by the Court in the form of cleared cheque/ bankers draft to the Applicant within 7 days of judgement.

 

10. Damages and costs within the discretion of the Court.

 

 

 

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

 

 

Signed:

 

 

Date:

 

 

What do you think?

 

First thing that comes to my mind is this is a claim under the DPA but you have tagged a bit about the CCA in it with no explanation. Either make it purely a DPA claim for enforcement or make it a dual claim and give details of the CCA offences.

 

Personally I liek the dual approach as it shows the court their intransigence over the matter, but I'd like a second opinion on that from somebody with more knowledge than me on going that way.

[noomill060]

Thank you for that, Dave.

 

I'll delete the CCA bit and leave that fun for another day, when I'm ready to seriously start playing with them.

[martinhw]

I am in a similar boat with Barclaycard defaulting on my SAR. I have sent them a LBA and they have until Tuesday 06/02/07 to respond.

My thread is http://www.consumeractiongroup.co.uk/forum/barclaycard/63260-martinix-barclaycard.html

 

I will be watching your thread to see the developments.

[fab1969]

Thank you for that, Dave.

 

I'll delete the CCA bit and leave that fun for another day, when I'm ready to seriously start playing with them.

++

 

Hello.

 

Barclaycard now have 2 days left to comply with my 7 day LBA before I issue a court order like yourself.

 

How do I go about doing this????

Also how do I quantify the damages and how much to claim?

[jimmyay]

I've got mine ready to send off tomorrow or Thursday seems like some of us are at the same stage.

 

I am claiming for my time spent issuing letters and swotting up on how to make a claim and charging them £350 + court costs. And of course i want my statements. the costs are based on an hourly rate of £75, which is what a lawyer would charge (at least).

 

I can't claim for any charges at the mo as they haven't given me any statements from which to work, and they refuse to discuss the matter with me - what a friendly bank!

[fab1969]

I've got mine ready to send off tomorrow or Thursday seems like some of us are at the same stage.

 

I am claiming for my time spent issuing letters and swotting up on how to make a claim and charging them £350 + court costs. And of course i want my statements. the costs are based on an hourly rate of £75, which is what a lawyer would charge (at least).

 

I can't claim for any charges at the mo as they haven't given me any statements from which to work, and they refuse to discuss the matter with me - what a friendly bank!

 

I'm in exactly the same position. No idea what they owe me!!

 

Could you give me a link to the template or something similar on how I should fill out the court claim?

[jimmyay]

You need to fill in the 2 page N1 claim form. You can fill the details out on line, remember to read the guidance notes, which are pretty straightforward. You will also need to fill in the court which you wish the claim to be filed in - there is a list of courts on the justclaim website. You can then toddle off to your local court, with the papers (including any copy correspondence you want the court to see to help your case) and then pay the fee ,and the claim will be issued.

 

N1 Form - Heading

 

In terms of the brief details / particulars of claim section, this script (below) may help. adapt it to your own case.

 

 

BRIEF DETAILS OF CLAIM SECTION

 

Order under Section 7 and Section 15(2) of the Data Protection Act 1998

 

 

PARTICULARS OF CLAIM SECTION

 

 

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 has an account number xxxxxxxxxxxxxx("the Account") with the Defendant which was opened on or around xxxxxxxxxxxxxxxxxxxxx

 

3. On xx(day) xxxx(month) 2006 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

 

4. The Defendant has failed to comply, despite having well over the statutory 40 days to respond.

 

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage.

 

6. The damage caused is:

 

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, the cost of this is estimated to be £ xxx to date.

 

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

 

8. 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.

 

9. Damages and costs within the discretion of the Court.

 

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

 

 

Signed:

 

 

Date:

[fab1969]

Brilliant information.

Thank you.

 

Have there been other cases of the courts awarding these damages or have Barclaycard ever defended any cases for failure to comply to a DPA?

[jimmyay]

Barclays / Barclaycard are getting themselves into a real mess here.

 

The information commissioner has recently found against barclays. This was concerning the disclosure of their microfiche files (containing details of charges and statements) which they used to try and claim weren't covered by the data protection act and so didnt have to disclose to the customer - "we don't have to tell you what we've charged you".

 

Pretty blatant and disgusting witholding of information - which they have now been told they have to disclose, thankfully.

 

However our case deals with just a more straightforward delay in getting a response - they have not replied within the 40 day timetable and whether they have issued a "holding" letter or not, they are bound by this statutory timetable and are in breach. A court should therefore rule in your favour. Barclays ( a company with a trillion pounds of assets) errrm, resourcing, i.e their failure to put men on the ground to help with these claims, is not our issue - it is abundantly clear they are just stalling for time , hoping a few more people get bored and decide its not worth claiming. Just as with the microfiche debacle .

 

Their story is that they are snowed under (probbably from the backlog of microfiche file requests which they now have to dig out) and so cant comply with the rules. Sorry, barclaycard, this isn't good enough and i'll see you in court. ( and i want my info NOW!)

[fab1969]

Barclays / Barclaycard are getting themselves into a real mess here.

 

The information commissioner has recently found against barclays. This was concerning the disclosure of their microfiche files (containing details of charges and statements) which they used to try and claim weren't covered by the data protection act and so didnt have to disclose to the customer - "we don't have to tell you what we've charged you".

 

Pretty blatant and disgusting witholding of information - which they have now been told they have to disclose, thankfully.

 

However our case deals with just a more straightforward delay in getting a response - they have not replied within the 40 day timetable and whether they have issued a "holding" letter or not, they are bound by this statutory timetable and are in breach. A court should therefore rule in your favour. Barclays ( a company with a trillion pounds of assets) errrm, resourcing, i.e their failure to put men on the ground to help with these claims, is not our issue - it is abundantly clear they are just stalling for time , hoping a few more people get bored and decide its not worth claiming. Just as with the microfiche debacle .

 

Their story is that they are snowed under (probbably from the backlog of microfiche file requests which they now have to dig out) and so cant comply with the rules. Sorry, barclaycard, this isn't good enough and i'll see you in court. ( and i want my info NOW!)

 

Fair enough

 

How long have you been waiting altogether?

They are currently on 45 days with me, that's the 40 day period gone and 5 days of the 7 day LBA.

[martinhw]

Is this too vague for MCOL - POC:

 

1.The Claimant has an account XXX

with the Defendant, opened XXXX.

2.On 15/12/06 the Claimant sent a

Subject Access Request, pursuant to S.7 of

the Data Protection Act 1998 to the

Defendant.

4.The Defendant failed to comply,despite

having over the statutory 40 days to

respond.

5.By virtue of the Defendant's failure to

comply with the Subject Access Request the

Claimant has suffered damage.

7.The Claimant seeks an order that the

Defendant do comply with the Claimant's

Subject Access Request.

8.Under the terms of S.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 S.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.

9.Damages and costs within the discretion

of the Court.

 

Or should I rather go down the Court House and File the N1?

[jimmyay]

i'm not altogether sure but as your claim is primarily focused on getting them to comply with the DPA, rather than a simple financial claim on money owed, it may be best to do the N1 route, with the damages as part of the claim. moneyclaim best for just monies.

[martinhw]

i'm not altogether sure but as your claim is primarily focused on getting them to comply with the Data Protection Act, rather than a simple financial claim on money owed, it may be best to do the N1 route, with the damages as part of the claim. moneyclaim best for just monies.

 

 

Cheers for that. I will file N1 at Northants CC on Friday morning.

[tamadus]

I've got mine ready to send off tomorrow or Thursday seems like some of us are at the same stage.

 

I am claiming for my time spent issuing letters and swotting up on how to make a claim and charging them £350 + court costs. And of course i want my statements. the costs are based on an hourly rate of £75, which is what a lawyer would charge (at least).

 

I can't claim for any charges at the mo as they haven't given me any statements from which to work, and they refuse to discuss the matter with me - what a friendly bank!

 

I hate to say this but your not a lawyer so the court will not allow you to claim that level. I believe the hourly rate they allow is more in the order of £9 per hour.

[jimmyay]

its actually not the damages i'm after , rather the discolure of the info.

[tamadus]

Ok I am getting a little bit worried here

 

Some of you are at the stage of issuing proceedings for Data Protection Act cases when you really should be reading the FAQ's and similar threads.

 

Also please do not post links to other sites, everything you need is tried and tested on CAG. other sites IMHO can cloud the aims we are trying to achieve.

 

If you make a claim then please make sure you KNOW all the legal arguments inside out. This sort of claim is not as simple as some may think

 

1. No court is going to allow you to claim a grade 4 fee earner level, you will be lucky to get £10 an hour, if you claim a grade 4 level then the court is likely to reject your claim as exhorbitant.

2. You are going to have to have evidence to support every penny of your claim.

3. Why are you filling in an N1 form before the statutory time has even expired? By my reckoning you probably still have at least 3 letters to send.

4. Ok they are allowed 40 days to send the data. BUT have you sent a reminder letter ? have you sent a letter before action ?

5. Without the above letters a court will simply say you have not followed procedure and most likely dismiss the claim under the CPR rules.

 

I have just got data that I asked for in June. I have not issued any court claim but a lot of letters have gone back and forth between me, the company and the Information Commissioners Office. I now have the written evidence to persue a court claim and WIN it.

 

Court should always be seen as a final resort, not an gut reaction. Your going to have to show you took every step possible to resolve the complaint before going to court.

 

As a last thought, they WILL defend a DPA claim, are you ready to go into a court room and argue a case with no solid evidence?

 

If they are at or just over the 40 day limit you will be much better contacting the Information Commissioners Office in the first instance.

[tamadus]

its actually not the damages i'm after , rather the discolure of the info.

 

Jimmyay,

 

Is this Barclaycard ? and how far over the 40 days are they ? have you sent reminder letters and did you send the S.A.R - (Subject Access Request) by recorded delivery including the fee ? Also do you have your own thread rather than hijacking Noomills.

[noomill060]

Hi Guys!

 

Looks like this thread has become something of a lightning conductor for everyone disatisfied with Barclycrud. Dont blame you at all. but I posted this thread in order to illicit info for my own case because I lacked the knowledge myself.

 

Please, please, please, start your own threads for you own particular situations, will all hijackers please leave the cockpit and return to your seats.

 

The worst thing you can do is go off at half cock, make things up as you go along and generally bu99a things up for yourselves.

 

In my case, Barclaycard have been in breach of the DPA since the beginning of December and complaint has been made and responded to by the Information Commissioner who has instructed Barclaycard to comply.

 

I am thus in a far stronger position to nail Barclaycard's blx to the table, at my convienience and at a time and place of my own choosing.

 

Your first action should be to do likewise (complain to ICO) and not fire off N1s at the first opportunity.

[jimmyay]

hi guys just a quick note in response to the above then i'll get out of your thread and do my own. sorry as i'm quite new here.

 

1) yes I did send original correctly worded DPA letter early December recorded delivery, with fee.

2) sent reminder letter early Jan saying you will shortly be out of time, where's the info?

2) they sent me a very snotty letter in response, in early Jan stating what i could and couldnt' claim under the DPA and said they hadnt received my letter until late December so clock started ticking from then - i accepted this.

3) I sent another reminder near the "new" 40 day limit near end Jan.

4) then got letter back saying bear with us but we cant tell you when we'll get the info to you and wont enter into any correspondence about the issue.

5) no joy contacting them on phone about this statement.

5) i then sent 7day letter before action threatening proceedings if they didnt respond, as they are now out of time.

6) at same time reported the breach to the info commissioner with full enclosures of my chasers

7) 7 days now expired and i feel fully justified in taking it to court. Particularly now the microfiche issue (which may have led to other people's long delays, when B'card didn't accept legitimacy of request) has been resolved, there should be no reason for long delays now.

8) point taken concerning fees and i would amend this before sending a claim off. though i am legally qualified and my time is precious!

[noomill060]

Adrian Whalley/ Pete Townsend/ Carl Nuttall- your time has run out.

 

No, I'm not prepared to give you ANOTHER 28 days to sort out the pile of poo your pathetic microfish [problem] has left you in.

 

My Small Claim for damages and an order to enforce my Barclaycrud S.A.R - (Subject Access Request) has now been filed with the Civil Processing Centre in Belfast.

 

(Keep your heads down, do your time, keep your noses clean, but FFS-dont go into the greenhouse, lads!)*

 

*reference to the "greenhouse scene" in the 1978 film "****"

[moose73]

1. No court is going to allow you to claim a grade 4 fee earner level, you will be lucky to get £10 an hour, if you claim a grade 4 level then the court is likely to reject your claim as exhorbitant.

2. You are going to have to have evidence to support every penny of your claim.

 

What sort of figure should we be looking at and how do we prove it?

 

i.e. is 20 hours at £10 per hour ok?

[tamadus]

What sort of figure should we be looking at and how do we prove it?

 

i.e. is 20 hours at £10 per hour ok?

 

If I remember rightly the court allows £9-50 per hour and be ready and capable of justifying every hour you claim for. Probably best to give your local court a phone call and double check with them to be sure.

[noomill060]

Barclaycrud has now been served with my Small Claims notice of application for an order to provide the SAR data requested in October.

[jimmyay]

cool keep us updated. they are half way through the "additional" 28 days which the ICO gave them. After that , i go to court.

really really shoddy behaviour from them . and for you - 6 months and court threats to get your statements. what on earth is the world coming to?