Welshcakes -v- Barclays DPA Breach Claim

[welshcakes]

Since I now have 3 claims at various stages against Barclays (though all regarding Woolwich accounts), I though it best to split them up into 3 threads.

 

The bullet point so far with this one:

 

1. S.A.R - (Subject Access Request) to bank branch 3rd Nov '06

2. Standard response received from OpenPlan Woolwich Customer Care

3. Joined this site early 2007

4. Wrote registered to Radbroke in Feb '07 complaining about SAR breach.

5. No statements/list of charges so made online Information Commissioners Office complaint and MCOL claim;

Claim was seeking compliance with original Nov '06 SAR and costs (fee plus my own costs).

6. Acknowledgement then Defence received from Bs so transferred to local Court.

 

Awaiting Court Date.

 

Bs offered a "Without Prejudice" settlement to which I responded with my own conditions of accepting their offer. I gave them a time limit to accept my acceptance. Time has come and gone and my costs have just been update - I'm sending them update today so they are aware that every letter I write and everyday that goes by, I am charging them; in this case, at least I'm doing it legitimately!

[welshcakes]

The Defence received from Barclays is:

 

1. Save for any admissions made in this Defence, the Claimant's claim is denied for the reasons set out below and the Claimant put to strict proof.

 

2. No admissions are made as regards paragraghs 1.

(My POC Paragraph 1. stated "The Defendant is a Data Controller.")

 

3. No admissions are made as regards paragragh 2, save that it is admitted that the Claimant has an account with the Defendant under number xxxxx

(My POC Paragragh 2, stated "The Claimant [my name], formerly XXXX had an account number xxxxxxx ("the Account") with the Defendant which was opened on or around xxmonthxx xxyearxx.")

4. As regards Paragragh 3, it is admitted that the Claimant made a Subject Access Request to the Defendant for copies of transactions and charges or alternatively copies of statements of account. The Defendant supplied details of charges made from February 2001, as requested by the Claimant on 23rd March 2007.

(My POC Paragraph 3, states ". On 24th February 2007 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.") The transaction list they sent through was actually for a differnet account I held.

5. Paragraph 4 is denied and the Claimant put to strict proof. The efendant repeats paragraph 4 herein and denies it is in breach of the Data Protection ACt 1998 ("the Act").

(My POC paragraph 4 states "The Defendant has failed to comply." )They appear to be saying I have to proof that I was not sent the information - how exactly does one prove something wasn't sent apart from the fact I wouldn't be going to all this trouble if I had received them!!

6. Paragraph 5 is denied and the Claimant put to strict proof. It is denied that the Claimant has suffered damage and the Claimant is put to strict proof as to her alleged loss and the calculation of such alleged loss. The Defendant will contend that is complied with the Claimant's subject access request as referred to in paragragh 4 above and in the circumstances it is not liable for the extra costs pleaded by the Claimant of £xx.xx as alleged or any costs. The Defendant will further contend that the Claimant has wholly failed to set out or show how this loss is calculated and as such her claim for damages fails for lack of certainty or any casual connection with the Claim against the Defendant.

(My POC paragraph 5 states "By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage.")

7. Paragraph 6 is denied and the Defendant will contend that it has complied with the Claiamnt's subject access request as set out in paragraph 4 above. The Defendant will contend that the Claimant is not entitled to an order in the terms requested and the Defendant repeats para 4 herein.

My POC Para 6 states "The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request".

 

So I presume Barclays are arguing that they did sent my transactions list and that I need to provide a breakdown of my damages.

 

Do I need to respond to this Defence by providing them (and court) with a breakdown of my costs? As yet I haven't been given a Directions date.

 

As far as their Defence being founded on their assertion that they did send the list, do you think that the fact that I subsequently received a letter from their Data Prot department stating that they couldn't even trace my account is evidence enough to counter. Plus I have written and emailed numerous times since asking for them to just send it through but they have never sent through a copy of this alleged list covering Feb 2001 onwards. Surely this lack of co-operation is grounds to ask for their Defence to be struck out?

 

 

 

 

 

[oneofakind]

Surely this lack of co-operation is grounds to ask for their Defence to be struck out?

 

 

You'd think so, wouldn't you. Hopefully a Judge would see through Barclays' totally transparent 'defence'.

Fer Gawd's sake - WHY do they insist on obstructing, delaying and obfuscating over every little thing!!!!!!! :mad:

[welshcakes]

Well, my thoughts exactly. Of course, the judge will not know at this stage that I have repeatedly been advising that I have never received the list however I would hope that the fact that I have brought this to court is testimony to such.

 

As this monetary dispute refers to damages (and the court fee) only, is it still advisable to send a letter to Barclays (cc court) providing the damages breakdown? I didn't do so on my initial MCOL POC as space is limited and damages were under £50 so by no means unrealistic or doubtful as to authenticity.

 

I have a breakdown available in simple Word format. Is it best to wait til I have some sort of direction Notice from the court to see if the breakdown is required at this stage?

 

I have asked for costs as deemed appropriate by the court and since costs of pursuing this claim continually increase, it would be impossible to provide them - however I can provide the breakdown as it stood at time of filing and which is therein specifically quoted in my POC.

[welshcakes]

Okay peeps, need advise on a point of law regarding Small Claims powers.

 

As you know, court date for 14th Aug (mass Directions session).

 

I am claiming for costs + damages (£70 odd) which Barclays have today sent me a cheque for.

HOWEVER

The whole point of the Claim is to force B's to comply with DPA breach - I still maintain (as I have through numerous communicatiosn with them) that I am not in possession of my SAR list of transactions despite them claiming to have sent back in Macrh - they have stated this in their Defence but offer no tangible prrof that the list was sent or received.

 

I obviously cannot discontnue the action as whilst they have provided monetary settlement, I am arguing that they are still in breach of DPA as I still do not have any list. The list is far more important than the costs/damages.

 

I need to respond to their latest letter (with which their cheque was sent) as it states "I trust this now concludes matters". The letter is from a Customer Relations Advisor at Woolwich Telephony.

 

Is my claim still valid via Small Claims in view of the fact that the only outstanding issue is that they have still not send through a list of transactions covering the period as per my SAR? They did recently send through a list that begins July 2001 but this misses out 8 months of transactions for which I am entitled to make a claim?

 

As far as I'm concerned they are still guilty of non-compliance - how will the judge handle this?

[Trucker]

Welshcakes

 

Have you given them the opportunity or have they offered to put things right. If they simply get their fingers out and re send the "Lists" i believe they wouldn't have a case to answer, especially as they had already settled your claim for damages.

[welshcakes]

Hi Trucker

 

Hurrah, someone answered me! lol

 

Well, I have repeated in writing my request for the list (stating each time that I have never received it) probably about 7-8 times so they are well aware that I maintain I haven't had it and that I still want it.

 

In addition, I have written to them and stated clearly that I am happy to discontinue the claim and accept the monetary figure they offer ON CONDITION that they provide me with the List of Transactions requested in my Subject Access Request dated 3rd Nov 2006. I had an acknowledgement to the SAR so I can prove they received it.

 

All they have sent through last month is a List of Transactions however they have only covered July 2001 onwards, thus missing out 8 months worth of charges that they were obliged to send (SAR Nov 2006, give 40 days grace so they should have complied and provided Dec 2000 onwards according to the 6 yr "rule").

 

This could all be sorted if they just sent through the list (the costs/damages obviously aren't an issue for them). I wonder if I am able to send a Draft Directions as it would get everything sorted without need for a hearing.

 

How does this look? All comments welcome:

 

The Claimant respectfully suggests that special Directions may be made as per the attached draft Order.

 

If ordered, the Claimant believes the proposed Directions will further the Overriding Objectives in that they satisfy the sole issue remaining in dispute and allow settlement to potentially be reached in advance of the hearing and so dispense with the need to unnecessarily burden the court’s time and attention.

- The crux upon which this claim rests is the continued absence of a list of transactions relating to the Claimant’s bank account held with the Defendant and the pursuant costs and damages (expenses incurred from seeking resolution).

 

- As the parties are in agreement that the monetary element (costs and damages) offered by the Defendant is acceptable, the sole issue remaining in order to satisfy this claim and permit discontinuance, is the provision of the list of transactions requested in the Claimant’s Subject Access Request made XXXXXXX.

 

The Claimant believes that if the Defendant has the serious intention of defending this claim at trial as is indicated by its Defence, that it is incumbent on it to disclose the List of Transactions upon which its entire case relies. Presentation of such information taken in conjunction with the agreed monetary settlement will enable the Claimant to give Notice of Discontinuance.

 

 

In the XXXXX County Court

Claim number XXXXX

Between

XXXXXXXXXXX - Claimant

and

Barclays Bank Plc T/A The Woolwich - Defendant

Draft Order for Directions

The Claimant shall within 14 days of service of this Order send to the Defendant and to the Court:

a) A copy of the Original Subject Access Request and copy of the Defendant’s acknowledgement of such;

b) Copies of any and all lists of transactions that have been received from the Defendant;

c) A copy of correspondence from both parties demonstrating that monetary settlement of this case has been agreed and the conditions under which agreement is found;

If the Claimant fails to comply with this order, the claim will be struck out without further order.

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, to include;

a) Copies of any and all transactions lists which it states have been sent to the Claimant in response to the Claimant’s Subject Access Request;

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[welshcakes]

Hi Peeps

 

Well B's didn't send through the promised List going back to November 2000 despite assurances from Emma on the 0800 Customer Service number that they would be sent approx 5 days (that was on 4th July).

 

So my ongoing Data Protection Act breach against B's is to be heard 14th August and since B's Litigation Team seem to be deaf to the idea that all they have to do is send the full list for me to Discontinue, I now have to turn to Court Bundle preparation.

 

As this isn't a standard reclaim case, could someone let me know if there is a posted BUndle on the site for breach of DPA? If not, could I PM with someone who has had to prepare such for an initial hearing?

 

I am still wondering if, with a month to go, it's prudent to send in the letter and Draft Direction as per my last post. Any thoughts on this line of action gratefully received.

 

I have no worries about self litigation however I would like to be certain that the documents I submit to the court contain everything needed to cement a win

[Cloister]

Following with interest as I am about to do the same

[majorclanger100]

Can't advise as I just about to issue same, but watching with interest. Good luck Welshcakes

[welshcakes]

Received a letter back from ICO requesting for further information, so the poor luv named Victoria is about to receive a large envelope of correspondence evidence!

 

It was quite useful putting together my evidence for ICO as it's reinforced the passion with which I intend to take Barclays all the way hopefully to a County Court Judgement.

 

This morning's post also bought a hopeful looking large package from Bexleyheath (my calims are with Woolwich). Sadly all that it contained was the entire statement banking history for my two other account - one of which I have never SAR'ed for!

 

Ah well.

 

I'm happy to give you all the stuff I've sent so far to get to this stage.

 

Adrian Ruffhead from Barclays Legal & Lit is falling over himself to give me all my costs, which is nice however not good enough!

 

I want my SAR compliance and intend to kick up plenty of dust in the process. Will start creating my own Court Bundle this evening as having trawled the CAG site, can't find anyone who's had to go this far.

 

The fact is, that I secretly believe Barclays data take over of Woolwich accounts has stuffed up so badly that they can't elicit the history of my account now. Not my problem. They acknowledged my SAR back in November 2006 and should have sent the info before Christmas.

 

I've decided to send in my Draft Direction (see #7 above) with an outline bundle next week so the judge has it before him for the 14th AUgust. With any luck he will grant the Directions in interim and Barclays can be Struck Out for non-compliance of court Order as well!

[oneofakind]

This is very interesting now. Well done for taking it this far.

 

[saintly_1]

Welshcakes ... apart from all the correspondence the only thing that can really be of use is the data protection act dont think there is much else that can go in there

[welshcakes]

Hi saintly, yes, it's a tricky one but of course I will be fine tooth-combing the DPA and lifting all the relevant sections.

 

I'm going to see if I can lift anything from Banking Association Code of Conduct etc just to bulk up the grave implications of the court showing any complacency toward bank breaches of the Act.

 

Do you all concur that sending in the Draft Directions pre-Directions is a positive move? Moving around in the dark here a little with no templates or case archives to guide me.

[saintly_1]

I cant see any harm in sending the Draft Directions . I've done searches several times trying to come across anything that could help you and haven't come across much in the way of help

[gizmo111]

Have you tried ringing Adrain direct as I had the same with Barclaycard - when I explained that I had not received all the infor he got it sent to me within 3 days, at that time he had already paid damages also.

At this point you don't need a bundle as it is only a directions hearing.

[welshcakes]

I have been corresponding directly with Adrian for over a month. He has been made aware on every occasion that the list of transactions sent to me on xx March were for an entirely different account. The cornerstone of B's Defence is that the list of transactions sent on that date were the ones I am seeking.

 

I have the xx March letter and attached list which I consider documentary evidence that their Defence is factually incorrect.

 

I have specifically emphasised in each letter to Adrian that the list is for a different account and all he needs to do is send me the list for this account.

 

What I have received is a list for this account that starts end of July 2001 onwards. Since they acknowledged my SAR back in November 2000 and I continually badgered them to comply since then, I feel they have tried a slight of hand in holding back on the list to avoid disclosing over 6 months worth of charges that I would have reclaimed.

 

At this point I would say that I have recently LBA'ed on this account using a partially estimated SOC. I point out in every letter that once they comply with SAR, I will amend the estimated SOC as appropriate.

 

So this DPA Breach Case has two uses

 

1) Obviously it allows me to calculate a true and accurate SOC

and

2) I wish to cite it in my reclaim case should B's Defence for that one be that I am in some way Statute barred - not that I am convinced of any legal accuracy existing as a basis for the application of Statute Limitations to apply in this case (concealment etc).

 

I am also pursuing this matter through a detailed complaint with the ICO and have today sent of a paper trail as requested from 'my caseworker'.

 

I shall give Adrian a call however I have been blatantly fibbed to by several Barclay promisers of the elusive list so remain cynical

[Trucker]

This may be a silly question. Is the account in question stil "live" if not have you moved house at all since it was closed?

[welshcakes]

Hi Trucker

I did consider all of these possibilities and whilst I have moved address once, the original address is still owned and occupied by our best friends - who walk round with any odd bits of mail that come through for me. They have from the offset remained well aware that charge list could be sent; so it isn't that.

 

The account was closed a few years ago however I still have a Savings Account so i at least am still a "live" customer.

[welshcakes]

Hi

Give me strength.

Adrian has replied to my last letter in which I explained clearly that the statements sent in March (upon which their Defence rests) is for a different account.

A 3 line letter;

"Thank you for your letter of xxx July, the SAR Team have confirmed that the data you requested was sent to you on 23rd March and 13th June, can you please therefore check that this has been received"

As per my post #11, I did receive a load of statements but No Adrian, they are nothing to do with the bank account we are talking about! Just like the statements sent in March were nothing to do with the bank account we’re talking about.

You see? Even a 10 yr old would by now have grasped that they keep sending statements for a different (and completely unrelated) account. They sent the wrong ones in March and they have sent the wrong one now. I have told them at least a dozen times now.

As far as I'm concerned, this is total incompetence. Short of tattooing it on their foreheads, there's little more I can do. It is simply moronic.

I am today updating my costs to date in respect of this claim and will attach to yet another letter back to Adrian.

I am going to use short sentences.

I note, Adrian’s letter is cc to the Court. Good! My response will be cc’ed also.

[welshcakes]

Left voicemail for Adrian Rufhead, BLT. He emailed a disjointed reply stating that BLT don't know of the impending court hearing and giving no explaination as to why I hadn't received my list of transactions.

 

He did attach a partial list of the correct account transactions - unfortunately since it only gives last 6 yrs worth of charges from today, it still fails to comply with my SAR of Nov 2006 (ie there are 8 months missing from Dec 2000 - July 2001).

 

I have emailed him back once again explaining this using short words. I also reminded him that when I rang Barclays' Customer Service posing as a divorcer asking for over 6 yrs worth of statements for my divorce case, I was told I could have data back as far as I wanted...the telephonist added but "if it's for bank charges reclaim, I can't give you more than 6 yrs' worth! " ... I kid you not.

 

I've told him to supply the complete 6 yrs worth from date of my SAR (well less 40 days to be polite) or I'm going to apply for the Defence to be Struck Out.

 

I've drafted application to judge already

[welshcakes]

Advise Barclays Lit Team that I am preparing to have their Defence Struck Out.

Had email response of them at 4.59 pm (!) today stating that lo and behold they ARE in fact able to supply more than 6 years worth of statements for my Woolwich account that was closed back in 2003.

 

Bit worrying as they state it was closed in Jan 2005 so I'm wondering if yet again, they are looking at a completely different account (doesn't even sound like one of mine).

 

Hey ho, they are desperate for me to confirm I will discontinue action - I bet they are considering I am guaranteed a CCJ for breach and potentially have a Wasted Costs on grounds of abuse of system.

 

Shall let you know if the statements they have promised come through ... no one hold their breath!

[saintly_1]

I know i dont have to say this BUT DONT discontinue until you have exactly what you want

[welshcakes]

 

Well, I'd want them to kiss my **** but I'll settle for 7 years worth of statements and my full costs.

[saintly_1]

I've had a little to much bacardi to even think of what i would like B's to do so im keeping by thoughts to myself before my halo well and truly slips to my ankles ;-)

 

The cheeky devils are trying their hardest tonight lol