Ive won *£6494.93* Ive won (LIP v Abbey)

[lostinparadise]

Thanks Odd.

I just have to find the time to put this letter together...You have been so helpful..thanks again.

LIP:)

[Odd Fellow]

Something like:

 

 

Without Prejudice

 

Claim Number:

 

Dear Mr Solicitor,

 

You will note that as your client has fulfilled my demand to supply the data requested under my SAR of (insert date), my legal claim against it is now essentially for costs (and damages if appropraite).

 

Had your client been willing to provide this data within the 40 day time frame that is permitted under the Data Protection Act, I would not have been forced to take legal action. Furthermore, had your client entered into a dialogue regarding this matter when threatened with legal action, my claim against it may have been avoided. In short, your client was given every opportunity to avoid this situation and the trail of paperwork will adequately support this.

 

Given that the claim is essentially now for costs (and damages if appropraite), I would like to give you the opportunity to settle this matter outside of court. I will accept 100% of my out-of-pocket expenses/costs (enter figure) in full and final settlement and inform the court of the cessation of the claim. However, I will only cease the claim upon receipt of cleared funds.

 

You will no doubt be aware of recent claim (6LO00969) where the district judge found in the claimant's favour. Given that this claim and my own are remarkably similar, I would urge you to settle the matter without incurring further costs.

 

Yours etc.

[caro]

Why without prejudice Odd Fellow? Why not let the court know you have offered to settle without the need to go to court.

[Odd Fellow]

Why without prejudice Odd Fellow? Why not let the court know you have offered to settle without the need to go to court.

 

Hmm. I see your point.

 

The implication of my letter is; "go on, try it, we'll see who comes out smiling".

 

It's quite bullish and might not be the kind of thing I'd want to put in front or a judge.

 

A further option would be to put a time limit on the offer and then send a similar, but less strongly worded one later without the "WP" status.

 

Or, perhaps it could be toned down a little at this stage. But having re-read it, it's not too heavy anyway. Perhaps the only change that I might make would be to the final sentence?

 

"Given that this claim and my own are remarkably similar, I ask that you settle the matter now without incurring further costs."

[lostinparadise]

Thanks Odd, Ill focus on this tomorrow and post the final letter. Ill add a bit in the letter to say i wont be pursuing them for damages, just so they think they have gained something back. (ill sneak those into the financial claim as costs lol)

oops i forgot to post DLA my AQ. Its been a week.

LIP

[lostinparadise]

Data Protection Act Non Compliance Claim

 

Hi Odd

 

I sent this letter off today and slightly amended the letter to read:

 

Dear SirMadam,

You will note that as your client has fulfilled my demand to supply the data requested under my S.A.R - (Subject Access Request) of 10th April 2006, my legal claim against it is now essentially for costs and damages.

 

Had your client been willing to provide this data within the 40 day time frame that is permitted under the Data Protection Act, I would not have been forced to take legal action. Furthermore, had your client entered into a dialogue regarding this matter when threatened with legal action, my claim against it may have been avoided. In short, your client was given every opportunity to avoid this situation and the trail of paperwork will adequately support this.

 

Given that the claim is essentially now for costs and damages, I would like to give you the opportunity to settle this matter outside of court. I will accept £30 court costs in full and final settlement of this claim and inform the court of the cessation of the claim. However, I will only cease the claim upon receipt of cleared funds.

 

You will no doubt be aware of recent claim (6LO00969) where the district judge found in the claimant's favour.

 

Given that this claim and my own are remarkably similar, I ask that you settle the matter now without incurring further costs.

 

I hope you consider my offer to settle this matter as a reasonable attempt to reach an amicable settlement of this claim.

 

Yours faithfully

 

I also sent my AQ to DLA today for which 11 days has elapsed since handing it into the court, Hope thats ok.

 

Financial amended Claim Hearing 27th September

 

Karn, ive PM'd you to request what info i need to collate for this 15 minute hearing RE: My amended claim. If anyone else has an input please feel free to post.

 

Thanks

 

LIP:-)

[lostinparadise]

Hi All,

 

Amended financial Claim

 

I received this letter this morning from DLA RE: my hearing on 27th Sept:

 

Thank you for your letter dated 11 September. We note that you have made an Application to amend your Claim Form. I am writing to inform you that the Defendant has no objection to the amendments detailed therein. Therefore we have written to the court to document out intention not to attend the hearing to be held on 27 September 2006 at 2:00PM at the xxxxx County Court.

 

Yours sincerely

 

Paul Denham

 

I will send a copy of this letter to the court and make sure i have confirmation from the court that i dont need to attend.

 

What do y'all think.

 

LIP

[lostinparadise]

Thanks Karn, its a weight off my mind.

Now i might contact DLA like Oddfellow to request a copy of their Allocation Questionnaire...mmmmnnnn.

Also im waiting a reply on the DPA Non compliance claim letter.

Let you know what happens.

LIP

[lostinparadise]

Update

Amended Financial Claim

So i rang the court....and...

I can either write to the court and tell them ive received this letter from DLA stating they will not be attending the hearing and they agree with my amendment and the judge will hopefully provide a DRAFT Order

or

I can still attend the hearing and the judge will hopefully provide a DRAFT ORDER there. He could also use that time to allocate the claim to the relevant track.

I have to do one of these 2 things so that the DRAFT Order is provided.

Think im gonna write first and see what happens.

Allocation Questionnaire

shABBEY have submitted an allocation Questionnaire, im gonna follow ODdfellow and request a copy.

LIP:rolleyes:

[lostinparadise]

:-x :-x

 

Data Protection Act Non-Compliance Claim

 

 

So here is the letter i received in response to my letter in post 222 RE: refund of my court costs.

 

Without Prejudice

 

Thank you for your letter of XXXX, the contents of which we note.

 

Our client is not prepared to pay the £30 court fee in settlement of your claim.

 

We are firmly of the opinion that the way in which our client stores information on microfiche, is not a relevant filing system under the Data Protection Act. Our clients information storage facility was inspected by members of the Information Commissioners Office on 6th September 2006, and we anticipate receiving a copy of their findings shortly.

 

Having seen the amount of manual intervention required and the time taken to retrieve the information, we are confident that the Information Commissioners Office will confirm our clients belief, that the information not contained within the relevant filing system and is therefore exempt from the 40 day timeframe permitted under the Data Protection Act.

 

It has never been Abbey's position that the information requested would not be provided. Abbeys position, however, is that due to the way in which the information is stored, information is not subject to a Subject Access Request, Under the Data Protection Act.

 

With reference to claim 6lO00969, please note that the district judge did not make any finding of fact in relation to whether the information was subject to the Data Protection act, indeed the district judge made no finding of fact whatsoever. The district judge, at an allocation hearing having heard that Abbey had now supplied the information, simply indicated that he would be dismissing the claim, and ordered that Abbey National PLC pay the court fee. This was wholly unusual step for the district judge to take, especially as this was not an issue which was before the court for consideration, upon allocation. However, as the district judge had made no finding of fact, and given the amount involved our advice to Abbey was not to appeal that decision. If, however, the district judge had made a finding of fact in relation to whether Abbeys systems were covered by the Data Protection Act, or whether Abbey should have complied to the Subject Access Request, then that decision would have been appealed, as the decision was wholly unfounded.

 

We would once again reiterate our letter of 31 August 2006 and the offer contained therein, to withdraw your claim, on the basis of no order as to costs.

 

Sorry for the long post but i feel it is important to document everything these people write.

 

I would be grateful for some advice on how to handle this.....

 

LIP:-x

[Odd Fellow]

Hmm. An interesting response and one that I was not entirely expecting.

 

I think the issue still stands though. The point needs to be made that HAD Abbey taken the trouble to enter into a dialogue with you rather than appearing to take evasionary and stalling tactics, you may have been in a position to prevent any legal action.

 

I am not at all sure that the district judge's decision to make an order at the allocation hearing is exceptional. The fact is that he could see that the matter was essentially solved and rested save for my costs - the data had been provided - therefore no further case. It would have been a fruitless exercise to have wasted the court's time in allocating the claim to a further track.

 

CLEARLY, the judge was not in a position to make a finding with regard to the "relevancy" of Abbey's filing system - it was an allocation hearing for crying out loud.

 

In fact the judge in my case was somewhat bemused by Abbey's entire approach to it and considered it to be rather heavy. Whether your district judge considers Abbey's reaction to be the same is another matter though.

 

I find it difficult to comment further on this - this is new to me and DLA has provided an interesting spin on the situation. I wouldn't want you to go too far with this purely on my experience. I strongly suggest you PM a mod; zooman was terribly helpful to me.

 

The fact remains though that your situation and mine are virtually identical - the difference is that we're all awaiting the ICO findings and that's where the crux of this lies.

[Robertxc]

If the judge ordered them to pay it, they have to pay it, or end up in BIG trouble. I've been to court many times, and one thing I've learned is that you NEVER ever take the p**s out of the judge or sheriff. If they blatantly say they're not going to pay it, they run the risk of the judge issuing a bench warrant for one of the directors of Abbey to come and explain themselves.

 

If it were me, I would go straight back to court with Abbey's letter, and call a hearing - thus incurring more cost for Abbey.

 

Interesting letter mind. I wonder what the thinking is?

[Bookworm]

Hang on, though, isn't the court order for costs relating to oddfellow's claim, not LIP's? Or am I mis-reading things?

[Odd Fellow]

I think the point is being missed here. Claim 6LO00969 was my claim and I suggested that LIP use it in a reponse to DLA as a lever.

 

The fact that Abbye failed to comply with the order *I THINK* was not one of non-compliance, but one of total inefficiency. But that's not the point.

 

The point is that DLA is trying to get LIP to withdraw the claim as it would appear prepared to go all the way.

 

Points to consider here are:

 

1. LIP's claim was for the disclosure of the transaction data under the DPA.
   
2. LIP's claim was not, essentially, to seek a court ruling as to whether Abbey's system is "relevant" or not.
   
3. Abbey supplied the information. Whether or not it claims to have done so under the DPA SAR is largely irrelevant - the fact is that it did supply the information and AFTER the claim was issued.

Now, if the judge ordered Abbey to pay my fees, then the judge found in my favour. I can see no other way of interpreting this. If the judge considered that neither party was correct, surely he would have ordered that no fees be awarded?

 

I still feel that the issue here will be whether or not Abbey could have avoided the action, not specifically whether it could have complied with the DPA 40 rule. There's propbably sufficient paperwork to demonstrate that Abbey was given more than enough notice - for instance, most people won't begin issuing LBA's until after the 40 day limit anyway. 2 LBA's of 14 days plus the 40 day limit is 68 days. Surely that's more than enough time to avoid court action?

[Robertxc]

Now, if the judge ordered Abbey to pay my fees, then the judge found in my favour.

I don't think you can assume this at all. There could be all sorts of reasons why the judge could find in favour of one party, but award costs to the other.

[Odd Fellow]

I don't think you can assume this at all. There could be all sorts of reasons why the judge could find in favour of one party, but award costs to the other.

 

AH. Thanks for putting me right there. Perhaps you could elaborate?

[Robertxc]

Well, for example, one of the parties may be correct as far as the case goes, but they may have put the court or the other party to a lot of unecessary hassle during the case, causing the other party to have to shell out additional legal costs. So the judge might award the case to the first party, but say that they have to pay the costs because of their unreasonable behaviour. Often of course, the judge might award some of the costs either way. It's actually quite unusual for anyone to be awards all their costs in a court case. I believe the norm is about 60%.

[lostinparadise]

Hi All,

DPA Non Compliance Claim

Ooops missed all the debate that went on earlier today!!

Thanks all for your input and replies.

The period of stay ended on the 19th Sept. I will not be extending it as DLA have made it clear they will not be budging...so no more negotiating. (or should i enter into another stay period and wait for the outcome of the Information Commissioners report)

I will write to the court to inform them that i have received the information requested under this action however the issue of costs are still outstanding.

Just to be clear the worst that can happen is that my court costs stand and im £30 down? or am i reading RobertX right in that the judge could (although unlikely) perhaps make me pay more for additional shAbbey legal costs?

Not gonna pursue them for the damages just want the court fee back.

Is it worth it, fighting on for £30?

Will they use my letter in post 22 against me, (as it was written without prejudice) at a hearing?

So it really is down to the judge and if hes having a good or bad day it seems.

I really dont know what DLA are playing at either....

Onwards.......

LIP:?

[Odd Fellow]

DLA (nor you) can produce anything in court that is "without prejudice" so don't worry about that.

 

There is a chance that you could by ordered to pay all or a proportion of the defense's costs, but it is quite unlikely. RobertXT's post above is quite useful in explaining this (thanks) and I would doubt that a judge would consider your actions to be unreasonable - but that's just my opinion.

 

Remember, if you take this back to court, Abbey immediately becomes exposed to more expense as it will have to pay for an agency solicitor to brush up on the case and attend. It is just possible that DLA is trying to reduce it's client's losses by trying to further scare you into withdrawing.

 

If you go to court, you will need to demonstrate that you have been entirely reasonable throughout this, so you will need to take copies of all relevant correspondence. Put them in chronological order, number each one and provide a cover sheet that shows a contents of the document pack and a summary of each document with referenced by it's number and the date that the document was originated.

 

This will provide the evidence you need to demonstrate that you didn't just jump in and take Abbey to court. It will show that you acted properly and that Abbey made little attempt to halt or postpone the action.

 

This is what I did and this is what helped the judge to decide that I had been reasonable throughout.

 

It's your call though.

 

 

Odd

[Robertxc]

Hi All,

 

Data Protection Act Non Compliance Claim

Ooops missed all the debate that went on earlier today!!

 

Thanks all for your input and replies.

 

The period of stay ended on the 19th Sept. I will not be extending it as DLA have made it clear they will not be budging...so no more negotiating. (or should i enter into another stay period and wait for the outcome of the Information Commissioners report)

 

I will write to the court to inform them that i have received the information requested under this action however the issue of costs are still outstanding.

 

Just to be clear the worst that can happen is that my court costs stand and im £30 down? or am i reading RobertX right in that the judge could (although unlikely) perhaps make me pay more for additional shAbbey legal costs?

 

Not gonna pursue them for the damages just want the court fee back.

 

Is it worth it, fighting on for £30?

 

Will they use my letter in post 22 against me, (as it was written without prejudice) at a hearing?

 

So it really is down to the judge and if hes having a good or bad day it seems.

 

I really dont know what DLA are playing at either....

 

Onwards.......

 

LIP:?

 

 

 

 

There is practically no chance of you having to pay costs. As a general costs are not awarded in small claims unless you abandon your claim, or if you've brought it in 'bad faith'. My comments about costs were about court cases in general, and although they could apply to small claims, it's most unlikely. The whole point of small claims is that it's supposed to be a 'leveller', so that you or I can go up against a huge company without facing the prospect of financial ruin. I would simply pass their letter to the judge and let him decide what to do about it.

[Odd Fellow]

edit.... I would simply pass their letter to the judge and let him decide what to do about it.

 

Despite DLA's letter being clearly labeled "without prejudice" ?

[glenroy]

Hi there have just joined and was looking through the threads when I came across yours. How did you get on with Abbey?

 

I have decided to try and reclaim my charges as much like you there have been times when they have taken huge amounts from my account and I have allowed it!

 

Only this morning they have informed me they are charging me £35.00 for going overdrawn by £14. I am sick of it.

 

Anyway need to read some more because I don't know yet where to start.

 

[Robertxc]

Despite DLA's letter being clearly labeled "without prejudice" ?

Are you a lawyer? Can a lay person be expected to know what 'without prejudice' means? I don't think so. The worst that will happen is that the judge disregards it.

[Odd Fellow]

Are you a lawyer? Can a lay person be expected to know what 'without prejudice' means? I don't think so. The worst that will happen is that the judge disregards it.

[Odd Fellow]

LIP, I would just tell the solicitors you are happy to let a judge decide whether they should pay your costs or not.

 

You cant show the letter to a judge as it is without prejudice.

 

x

Karne

xx

 

I tend to agree with Karne. See RobertTX's take on the WP issue too.

 

I feel that the issue is now not whether the claim is that Abbey's system is "relevant" or not. Your claim was for data that has now been supplied. Therefore the claim ought to revert to one of costs only.

 

You might like to consider a letter to DLA that's NOT WP (professional opinions on this please!). The letter might state that you are unhappy as you feel that a large legal operation is pressuring a lay individual into submission via threatening language and that you are happy to let a court decide the outcome of the action.