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

[noomill060]

jimmy- stuff 'em. I have.

 

Take action now, the ICO didn't "give " them any more time, the ICO cant change the law.

 

They had 40 days to comply and are in breach of the DPA.

[noomill060]

Barclaycrud simply informed the ICO about their self inflicted nightmare.

 

The ICO have no powers to alter the law set by Parliament and instructed Barclays to comply with the law, which they are treating with contempt, risking jail for the guy in charge of data protection.

[jimmyay]

see your point.

well i am being magnanamous on this one and allowing them the "extra" time, though obviously i will pursue vigoorously when that runs out - have written and told them this.

 

Don't worry i will go in all guns blazing at the deadline and will try and get Mr Whalley in jail!

[ladybird17]

not through a civil court you won't!

[Glenn UK]

FWIW

 

Dont forget you can only claim costs outside of small claims track generally.

 

the figure i have is 9.25 per hour or 6.75 per letter written.

[noomill060]

ladybird- In November a judge in Poole made an order against the Royal Bank of Scotland ordering it to comply with the DPA, the judge said that if the claimant had been able to supply him with the personal name of their data controller he would have made a threat of imprisonment.

 

The DPA makes the provision for damages to be awarded for non-compliance.

[noomill060]

I'm not claiming costs as such. The claim is for damages, court fee and an order that Barclaycrud complies with the law..

[Glenn UK]

Noomill060

 

Sorry if i misread things i thought there was a discussion taking place over costs and what could be claimed.

 

FWIW i took the Co-op to court using DPA and got more data than they said they held originally, Im on the threshold of taking GE Moeny to court over the same thing too.

 

HTH

 

Glenn

[noomill060]

My claim has been deemed served on Barclaycrud and they have until 6 April to respond.

[biker babe]

Hi noomill

 

The 40 days limit for Barclaycard is up today. I have sent them LBA also advising that I have reported to ICO and given 7 days to respond b4 court action.

 

I am prepared to go that far but how would I prove the level of damages as most of the time spent researching has been online in the privacy of my lounge? What evidence would I need to provide?

[noomill060]

Barclaycard have now responded to my court action, demanding damages for their non-compliance and a order that they be made to comply with my SAR.

 

But theres a twist.

 

They have also hired a different DCA (Wescot) who have sent me a final demand LBA for the the outstanding balance, which I have been defaulted on. This balance is at least 50% madeup of penalty charges and interest charged thereon going back to 1986!

 

(New info from bankfodder- defendents cant hide behind 1980 Limitation Act if they have concealed vital information- like claiming that penalty charges are lawful simply because their of their T&Cs!)

 

I phoned the court and they confirmed that no action can be taken against me until the SAR default and Barclaycard's breach of the DPA is resolved.

 

Naturally, once Barclaycard complies with my SAR, I will be in position to begin action for return of all charges and interest charged thereon.

 

Another twist is that back in December, the previous DCA failed to comply or acknowledge with my CCA request in way.

 

I have sent a CCA request to the new DCA, it was delivered this week, so will see what drops through the letter box over the next couple of weeks!

 

(If the original DCA wasnt able to supply a copy of the agreement, what are the chances of the new one being any more sucessfull?)

[noomill060]

Suprise suprise.

 

My CCA request sent Recorded was signed for on Tuesday. Received letter from Wescot today acknowleging my request, saying the account is now on hold they will be in contact in due course.

 

In other words, they dont have a copy of the agreement either.

[noomill060]

Received a Without Predudice letter from Barclaycard this morning.

 

 

Dear noomil

 

Your County Court Claim has been refered to this team ti deal with and as you will be aware a Defence has been filed with the Court contesting your Claim.

 

You will note from the Defence that the Bank does not agree with your claim and that it lacks legal merit. In particular, as will have been explained by Barclaycard, thr eason for the £3.00 charge for statements being requested before the date of June 2004 is because statements prrior to this date are held on Microfiche and therefore are not within the meaning of a relevant filing system within the ,meaning of the data protection Act. Your claim for extra costs of £200 is unquantified and you have not made any attempt to set out how you arrive at this figure or what this could represent if it alleged to be some form of loss to you.

 

It is, however, recognised that the sums in issue between yourself and the Bank are modest and as such, it is not cost effective for either party to take this matter to a final hearing. Therefore in order to avoid the inevitable time and costs associated with persuing this claim to a hearing, the Bank is prepared to settle your claim with you in the terms set out on this letter.

 

In full and final settlement of your claim, the Bank is prepared, on this occasion and subject to your signing and returning the enclosed duplicate of this letter by way of agreement tio its terms, to supply you with the copy statements that you requested, free of charge and therefore without the need to pay the charge £3.00 per statement. the Bank would also be prepared to pay your Court fee of £36.00

 

This offer is made in full and final settlement and is strictly without any admission of liablitity on the part of the Bank.

 

If you agree to the terms of this offer, then please sign and return a copy to the above address within 5 days.

 

I reserve the right to draw this letter to the attention of the Court should you not accept this offer.

 

Yours bla bla,

 

Adrian Ruffhead.

[noomill060]

ADrian is correct in that I didnt include my calculations as to where my costs came from, I understood that this would be adjudicated on presentatio to the judge at a hearing.

 

The letter is marked "Without Predudice" how on earth can they "reserve the right to draw the court's attention to it" without my consent?

 

Should I have incuded my damages calculations with the Particulars of Claim?

 

As I did not, is it now too late to send this info to the Court and Respondent?

[alanfromderby]

I am rather unclear as to what the £200 damages relate to - it does seem a rather large sum, and I would be amazed if a judge agreed to such an amount.

 

However, breaking things down, if the letter has been headed "Without Prejudice", rather than "Without Prejudice save as to costs" then I cannot see how they can present it in court.

 

As for their offer, I would be inclined to respond saying that they have a legal obligation to provide the information that is non-negotiable. When they meet their obligations under the Data Protection Act, you will then be prepared to discuss the other issues within your claim.

 

Although please remember that this is just my opinion based on no legal training - please seek legal advice if you are unsure what your next step should be, especially bearing in mind the issue over the damages.

[noomill060]

£200 damages to cover my time at a small hourly rate, postage etcsince last November when they exceeded their 40 days.

 

Pushing it I know, but the judge can only say "no, sorry, youre not having £200"

 

If the judge tells Barclaycard to get off their well upholstered behinds and comply with my SAR, I''l be happy.

 

Another chat with the ICO today, the case worker has told them (once again) to comply.

 

They better hurry up, they are booked for an appearence in Court on the 15th of May!

[noomill060]

see below

[noomill060]

Update- I recieved a letter from Adrian Ruffhead promising to provide my missing statements and an offer to pay the amount I am claiming in damages for their non-compliance. (£242.56)

 

i have recieved all statements bar three of them. Oct, Nov and Dec 2000.

 

Adrian Ruffhead says that all im going to get because they only keep them six years.

 

My S.A.R - (Subject Access Request) is dated 4 October 2006.

 

Ruffhead has said in an email sent today that £242.56 will be deducted from my outstanding balance rather than in the form of a cheque, as stated on my Small Claim form.

 

I have been defaulted for the amount of £8000+.

 

On two occasions, with two different debt collection agencies I have sent CCA requests, and on both occasions they have defaulted, the first one has now been in criminal default since December, the second is well over the twelve days.

 

As the agreement is now unenforceable, can this be used to demand damages in the form of a cheque, rather than simply deducting this from my outstanding balance?

[noomill060]

Latest news:

 

Ruffhead must be getting very concerned about the fast approaching date of the hearing.

 

Dear noomill060,

Thank you for your e-mail, I have given instructions to Barclaycard to refund to your account the amount you have claimed in your Claim of £242.56 & this will be paid over to you shortly.

As regards the statements you referred to, of October to December 2000, Barclaycard only keeps back copies of statements, going back for a period of 6 years, which means that the statements that you have referred to are not available to be produced to you. Barclaycard has therefore produced all the copy statements that it has and as you will recall, default charges were not intoroduced by Barclaycard until 2001.

In the circumstances please confirm that you will write to the Court withdrawing the Claim & hearing.

Regards,

Adrian Ruffhead

 

Litigation & Disputes Team,

Level 29,

1 Churchill Place,

London,

E14 5HP.

020 7116 7532

C/W 7 6006 7532

[email protected]

[noomill060]

Next email from Ruffhead:

 

 

 

Dear noomill060,

Barclaycard has confirmed to me that the sum of £242.56 has been remitted to your account, therefore this sum has been paid to you.

I need to have confirmation from you by midday that the hearing & action is withdrawn as I will be instructing the Bank's Solicitors in Belfast on whether they need to arrange attendance at the hearing that is still fixed in the Court List. The Solicitors have advised mt that they will need to instruct a Barrister to represent the Bank, which they will have to do by at least midday today.

If a Barrister has to be instructed then his/her fee will become payable, even if the hearing is withdrawn at a late stage & in the event that the Bank has to instruct a Barrister or attend a hearing, then it will seek its costs of attendance from you for having to attend a hearing that was unnecessary. These could be in the region of £1,000. but could more or less according to the Barrister's fee required by the Barrister concerned.

Please therefore reply to me, by return, confirming that the hearing & proceedings have been withdrawn.

Regards,

Adrian Ruffhead

Litigation & Disputes Team,

 

I checked with Wescot, but they werent aware of any credit to my (defaulted)account.

[noomill060]

I sent this email to Ruffhead:

 

 

Dear Mr Ruffhead,

 

Regarding our phone conversation of today. Apologies for not responding to your email promptly this morning.

 

On the assumption that Barclaycard has credited my account with the amount asked for in my Small Claim to my account (£242.56), I will contact the Court this afternoon withdrawing my Small Claim in it's entirety.

 

I will require written confirmation of the credit to my account within 7 days.

 

I reserve the right to inform the Court and reintroduce my claim if Barclaycard have acted in bad faith in any way.

 

I am aware that this is a Small Claim and that costs are not normally awarded to either side.

 

I regard your statement regarding your legal costs as intimidatory and reserve the right to bring this to the notice of the Court should the occasion arise.

 

Providing that payment of £242.56 has been made to my account, you may consider the matter of this Small Claim closed.

 

 

Yours Sincerely,

 

noomill060

[jimmyay]

Barclaycard are outrageous and they try every trick in the book, delaying, threatening, etc they are spending far more defending the claims than the claims are worth, but they dont care. But do not give in. I waited for months too for my info and eventually got my statements. I have been given part refund 25% of my charges( diff between OFT limit and what they charged) but so dissatisfied have i been with their attitude towards this i am taking them to court for the whole £1000. best of luck to you.

[noomill060]

Ruffhead then realised that his porkies about the £242 already having been paid over had been rumbled and admitted that it had not been possible to pay this as my account was had already been defaulted and was with Wescot.

 

The hearing is next Tuesday and Ruffhead cannot guarantee payment before then. (yeah, right!) so he says he has authorised a cheque to be sent to me, and I will ask the Court to adjourn the case to allow the cheque time to arrive.

 

 

 

Dear noomill060.

Thank you for your reply and for your calls. As discussed I have been advised that the Barclaycard account that you have has an outstanding amount owed on it.

As a result we have agreed that I will arrange for a cheque to be sent to you, for the agreed amount, within the next 7 days. This is as per the agreed settlement and paid without admission of liability on the part of the Bank.

We have also agreed that the hearing fixed for 15th May, be adjourned pending the receipt of the cheque and that thereafter the action will be discontinued.

I will fax the Court & note that you will taking a letter to the Court confirming the adjournment also.

Regards,

Adrian Ruffhead

[noomill060]

Dont forget- this money is just for damages claimed as a result of BCard's non-compliance with my SAR.

 

I havent even started to claim my charges back!

[noomill060]

Charges which go back to 1985...

 

Oh, Mr Ruffhead, what fun we will have over the next few months...