1970 vs The Woolwich - over 6 years with CCI £23,000

[1970]

Hi,

 

Sent off my S.A.R - (Subject Access Request) and they received it on the 25th April. On the 29th May they wrote back saying there have been no charges in the last 6 years so they will not be sending any data. Here's my response which is a combined prelim and DPA compliance request. It's going in the post today by special delivery:

 

31st May 2007

 

YOUR REF: 3210980 ACCOUNT 0xxxxxx – Mr and Mrs 1970

 

 

Dear Ms. Parker,

 

IMPORTANT – YOU SHOULD READ THIS CAREFULLY. REQUEST FOR YOU TO COMPLY WITH THE DATA PROTECTION ACT 1998 AND REQUEST FOR PAYMENT OF £23,833.27 BY 15TH JUNE 2007.

 

 

I have received your letter dated 29th May 2007 where you state there have been no bank charges applied to our account in the last six years.

 

I must inform you that I have evidence to the contrary.

 

Please be advised that the subject access request delivered and signed for at your offices on the 25th April 2007 specifically requested a complete list of transactions and charges relating to the entire banking history with the Woolwich for account 0xxxxxx.

 

The request was not limited to charges applied to the account in the last six years.

 

In addition, I asked for information that relates to any manual intervention by any member of your staff.

 

Whilst not exhaustive and for the avoidance of doubt I shall list what I require:

• Full copies of all contracts that exist between myself and your organisation; including copies of any documents you hold in support of same.
  
• Copies of all statements relating to the above accounts.
  
• Copies of all correspondence, including all letters, faxes, emails and memos sent and received between ourselves, and any other third party in relation to any of the above accounts. This must also include internal communication that relates to my personal banking business.
  
• Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.
  
• Full details and copies of any documents upon which you relied when you have provided my personal or financial information to any individual, organisation or third party.
  
• Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information.
  
• Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.

• Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, reason for deletion, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

My I remind you of your obligation to respond to this request within 40 days. Our request was delivered to your offices on the 25th April and I expect the request to be complied with no later than 5th June 2007.

 

In the absence of the data I have requested, it has been necessary for me to read through my personal bank file and collate a schedule of penalties based on the limited number of statements I have retained. As I do not have a full set of statements covering my entire banking history with you, the attached schedule is a sample of the penalties levied.

 

I now understand that the regime of fees which you applied to my account in relation to direct debit refusals, returned cheques, 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 true costs.

 

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair according to 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.

 

I would draw your attention to the terms of the contract, which you agreed to at the time that we opened the accounts. 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.

 

It is clear by your letter to me that you feel that any charges that date back more than six years are statute-barred by the Limitation Act 1980.

 

I must inform you this view is incorrect.

 

It is clear you have continued your charges regime after the date of the first OFT report and you have continued to conceal the true nature of your costs and therefore have lost the protection of the Limitation Act.

 

In particular, I would like to draw your attention to s32. (1) (b) of the Limitation Act 1980:

 

32.--

• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
  • (a) the action is based upon the fraud of the defendant; or
    
  • (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
    
  • © the action is for relief from the consequences of a mistake;

  [*]the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

Prior to 4th April 2007 I had believed that the charges were lawful and that you had a right to levy them. I now know that these charges are unlawful and the true costs have been and continue to be concealed by the Woolwich.

 

The Woolwich has been well aware of the charges campaign for over 12 months and more recently with the OFT report highlighting the law and your obligations. I am in possession of information concerning financial settlements made by the Woolwich relating to county court claims for the refund of unlawful penalties.

 

I am also in possession of a letter from the Woolwich dated 5th January 1998 whereby the following statement is made on page 2:

 

“You may, without penalty, terminate your authorised overdraft facility at any time by repaying the debit balance, accrued interest and outstanding charges.” (emphasis mine).

 

It is very clear to me from this statement that the result of terminating an authorised overdraft yet not repaying the debit balance, accrued interest and outstanding charges, the bank would apply a penalty to the account. I have evidence of such, which can be provided if necessary.

 

Thus the bank considers charges to be penalties as expressed in the above citation.

 

I contend that your charges are not intended to represent or are related to any alleged actual loss, but instead unduly enrich you which exercises the contractual term in respect of such charges with a view to profit.

 

If you assert the charges are not a penalty, they are unreasonable under the Supply of Goods and Services Act 1982 s.15.

 

The contractual provision that permits you to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

The charges debited to the Account are punitive in nature, they are not a genuine pre-estimate of costs incurred by you. The charges exceed any alleged actual loss to you in respect of any breaches of contract my part.

 

You have held on to and benefited from my money for a number of years. As a banking organisation, it is obvious that this money has been lent by you to your customers at commercial rates and has assisted you to increase your annual profits.

 

Based on the limited information in my possession, I calculate that you have taken £1,807.50 by way of unlawful penalties. See attached schedule.

 

At times, I was overdrawn and you charged me interest on these charges.

 

I am also asking for you to pay compounded contractual interest at the rate of 29.9% which is the rate you charged me for unauthorised borrowing. This is the rate we agreed to when I opened the account with you.

 

I believe I am entitled to this interest rate due to the implied term in our contract based on the principle of "mutuality" or "reciprocity"

 

Therefore the total amount I am reclaiming is £23,833.27. See attached schedule. I reserve the right to amend this amount should you comply with the subject access request.

 

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 have provided enough information in this letter and pre-empted your possible arguments and reasons for not refunding the owed to me.

 

I have the necessary evidence, financial backing and previous case history to support my request for a refund should it be necessary to bring the matter before a judge in court.

 

I sincerely hope this course of action will not be necessary.

 

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 the payment of £23,833.27. Please make your cheque payable to xxxxxxx

 

Alternatively, you can transfer funds by BACS to the following account:

 

Halifax – xxxxxxx

Account Name: Mr xxxxxxxxxxx

Sort Code: xxxxxxxxx

Account Number: 0xxxxxx

 

If you do not respond, or you do not respond positively, within 14 days, 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.

 

I am expecting this matter to be resolved by Friday 15th June 2007.

 

After that, there will be no further communication from me and I shall commence court proceedings at the expiry of the second deadline, which will be Friday 22nd June 2007.

 

 

Yours sincerely,

 

1970

[warrentuff]

wow - amazing stuff!

 

Just got my court date 3/7/07 - been leaving various messages all day on contact numbers @ Barclays for them to contact me No reply as yet, but will not be put off untill they are sick of me and just give me my money - total amount due a little over £15K. all the very best will be watching with great interest.

[1970]

Update:

 

SAR sent 24th April.

Prelim as above sent 31st May.

 

This week, letter from Barclays?? saying thanks for your SAR of the 31st May, we will respond within 40 days.

 

Bunch of jokers. They clearly do not have a clue what they are doing.

 

LBA ready for posting Friday.

 

1970.

[1970]

Ok, my prelim is based on my own data on file.

 

I had a letter on the 5th of June from the SAR co-ordinator saying thanks for your data request dated 31st May.

 

I wrote back a snotty letter stating that the data requested was dated 24th April and delivered by recorded delivery.

 

What a cheek - adding over a month to the process.

 

Anyway, they are now in breach of the data protection act as 40 days have well and truly run out.

 

I'm going to start the necessary non complaince letters.

 

In the meantime, I have sent an LBA as they have not replied to my prelim. The LBA runs out on the 29th June, then it's off to MCOL.

 

Cheers,

 

1970.

[welshcakes]

Hi 1970

 

Whilst my DPA breach gripe is for a far lower claim amount than yours, I have also had to take action.

 

I did the MCOL, have had an Acknowledgement then Defence filed by Barclays (mine is also for Woolwich) and have recently had Notice of claim transfer to my local county court.

 

Barclay's Defence is quite short and basically argues two points that 1) they did send the statements (however they are quoting a list of transactions that they sent through for a different account/claim of mine) and 2) that the costs I am seeking (were only £30 court fee plus £48.20 at time = £78.20) had not been broken down in my Particulars of Claim so I had failed to demonstrate validation of them.

 

This second point for me is negated as costs of pursuing are rolling costs and a breakdown is never presented until the conclusion of the case as they are continually updating.

 

Interestingly, Barclay's Litigation did write to offer the full amount of my DPA Breach claim if I discontinued. I responded stating I would accept their settlement on condition that they provided the information requested in the original SAR by a certain date.

 

I confirmed that my acceptance of their offer would expire after 10 days if all conditions were not met. I've received nothing more through so have now sent off a very short letter to B's Litigation dep't just informing them of the updated costs I have calculated - increase from £48.20 to £112.20.

 

Another interesting thing about Barclays is that they did send through a list of transactions in response to one of my later emails sent last a few weeks ago however they sent 6 years worth starting from July 2001 onwards ... when I replied that they had 'moved the goal posts' in respect of the start date, they quoted Statute of Limitations to me!!

 

Transparently feeble attempt to knock off claim months. So now I have also sent off a Prelim letter based on the charges they have sent plus an estimation for the earlier months they have refused to include.

 

Will follow your progress with interest.

[1970]

Hi, Just a quick reply as I am at work.

 

I've had a letter from the Woolwich stating that they do not hold any information on me older than 6 years. Therefore, they are only able to calculate a refund of £347 which they would to offer as full and final.

 

Ha Ha.

 

So, I guess my next step is to photocopy my bank statements and show them the charges and request a refund.

 

I know I should probably go straight to court now but the court cost is going to be high.

 

More of an update when I get time.

 

1970

[PKea]

Keep us posted, this sounds an interesting case

 

Paul

 

"Wisdom Begins In Wonder"

My advice is based on my personal experience and should be taken as such.

If I have helped you, Please click the Scales

Guide To Claiming Back Charges

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Guide to Court

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Wasted Costs & Spreadheet

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Abbey WON - MNBA WON - BARCLAYS WON - HBoS(1) WON - BT WON

HBoS(2) LBA Stage - HBoS(2) Prep

[1970]

Hi, I sent my copy statements dated May 97 to April 01 along with another schedule of charges.

 

The reply I've had says:

 

"Under the current guidelines, it is only possible for us to consider claims for the previous six years. Under these guidelines, we are unable to consider any of these charges for refund"

 

So, I need to start building my case based on the limitation act and concealment.

 

Here starts the hard work...

 

Cheers,

 

1970.

[welshcakes]

On the positive side of things, I doubt very much that Barclays has devised a Defence for arguing against the lucidity of applying the Limitation Act 1980 to charges that have been concealed until recent years. They will potentially enter a claim arena less informed than Claimants from this site.

 

I can however see them adopting one of two possible stances when facing a determined claim such as yours, namely that they will either negotiate generously BUT insist on a Confidentiality Clause or where this is rebjected, put up a reasonable fight and invest a fair amount into utilising solicitors to fight it in court.

 

To back down on pre-6 yr claims would be to open the floodgates.

[1970]

Ok, I'm not quite in a position to issue a claim on this one yet as it will cost £400 and I have other more promising smaller claims to be getting on with first.

 

Should I continue writing to them arguing the points on the limitation act and my arguement for CI, or should I keep quiet now until I am in a position to file a claim?

 

They've had my prelim, LBA, and letter rejecting their offer of £347.

 

Cheers,

1970

[welshcakes]

Hi 1970

 

Barclays t/a Woolwich continually claim that they did not hold more than 6 yrs of account info account - I can only wonder if this is because they believe there is a valid case for reclaiming such.

 

In conjunction with my legal action, I complained to the Information Commissioners Office about the breach & I maintain that complaining to this Office does add value and pressure.

 

Adrian Ruffhead from Barclays' Litigation Team finally authorised Woolwich at Clacton on Sea to release the pre 6 yr statements to me. He appears willing to assist though I wuld stress communciations between Clacton and Churchill Place don't seem very effecient.

[1970]

Wow it's been a long time since I updated this post.

 

Situation so far:

 

I'm claiming beyond six years.

I'm claiming CCI.

 

I updated my spreadsheet today and found that the interest based on their unauthorised borrowing fee has now pushed the potential value of my claim to £50000 !!!!!

 

I have recieved an offer of £347.00 which I rejected.

 

I also put forward a hardship claim based on mortgage arrears, council tax with the bailiffs and ill health.

 

My claim was rejected.

 

At that point I backed off.

 

I'm mindful to get this started again.

 

Perhaps a stronger letter this time and reference to the banks already loosing at the high court and the appeals court.

 

I shall give it some thought.