Virgin, mystery extra line: 2 judgments for Data Protection breaches - so far!!

[lemon_martini2]

OK I was actually about to reply to this earlier today when we had two developments. The post arrived and brought with it a Notice of Arrears under section 86B of the CCA 1974 (Yippee!) for the second handset and I got a text saying they had come up with a resolution and would call to discuss it so I held fire on posting until I heard what Virgin had to say this time.

 

Initially I was told this Notice was system generated and so it would be stopped...however later in the conversation I was told this wasn't the case and it would continue being reported as in arrears until an agreement was made.

Until this happened, they could not do anything to my credit report. This arrears would continue to appear and show as a default and the other defaults for missing payments would still remain on there. It would be in 'my best interests'-(ha!) to accept an offer as soon as possible

 

My counter-offer therefore will be £750-

£204 for the handset, £200 for the claim, £25 for the cost of filing the claim, £18 for the money incorrectly taken out, £169 for the cost of the new handset I had to take out when I joined Three as I was denied a free one because of the incorrect defaults from Virgin on the credit report: totals £616 and then rounded up to £750 to cover the distress done as a result of incorrect credit data and as an apology. 

All adverse markers on the credit report to be made good so that my credit is not impacted by this,any Direct Debits set up to be cancelled and not restarted and the second line cancelled and cleared so no more payments are taken.

SAR request to be fulfilled as this is still outstanding
And of course, all to be confirmed in writing by Virgin.

 

Just one question needs clarifying: by 12 December when the claim is due to end, if they have  not supplied the SAR details then I am able to issue another claim because they still haven't fulfilled that, even if the amount of the claim has been paid?

[BankFodder]

I'm trying to get my head around this – but your proposed offer of settlement at £750 I think is a ridiculously cheap giveaway. Maybe you are giving them a Black Friday deal.

I don't quite understand, you say that they say that they are going to call you – has that happened?

Your proposed £750 – is that a full and final settlement of everything? I'm really not too clear because it's getting complicated.

[BankFodder]

Have they actually written to you yet about any proposed offer or settlement – or acceptance? Have they written to you about your credit file and this latest notification you've had?

What I do understand is that they seem to be saying that their procedures don't allow them to operate in any other way. In other words they are subverting your data rights to their procedures.

I don't think that this is a problem you should go along with. I think that's tough on them and I think you should be merciless in respect of their procedures.

[lemon_martini2]

The only written offer I have had is the £500. They did call this morning but didn't have anything extra to say for themselves except for the two contradictory statements about the Notice of Arrears when I told them I had received that.

This would not be full and final settlement-I would still be able to go to the Financial Ombudsman and I would still be putting in further claims(escalating in value each time) if they fail to fulfil the SAR. 

As you state that £750 is ridiculously low, what amount would you consider an acceptable offer?

 

 

[BankFodder]

So the writing which you are referring to is the message which you put up on Sunday at 17.38 – Post 47.

I said already that it's a sort of interesting offer but it does worry me slightly that they're talking about the "loan agreement" and am wondering whether they consider that if you accept the money that it will put an end to the entire dispute over that. This is a loan agreement which never was – because you never entered into an agreement – and of course because they haven't made their statutory disclosure, we have no idea what they're basing anything on.

Has there been any response to your court claim? How many more days are there before you can apply for judgement?

 

I also referred to the word which you used "apology" and I wanted to know how that had crept into the dialogue between you – but you haven't addressed that. I be grateful if you would please.

Secondly, I'm a bit losing track of what's going on here.

It would be enormously helpful if you could possibly just put a bullet point summary of the various issues so they can be referred to. No narrative. I'm afraid that coming back to these threads even after short intervals, I find it difficult trying to remember where we are and to get a bead on all the issues involved

[BankFodder]

Also, in any discussions with them, have they referred to the claim that you have made against them?

And also is there any sense that they are preparing to satisfy your disclosure request?

So far these things seem to have been left unsaid – or at least you haven't referred to them.

[lemon_martini2]

OK in a succinct summary:

 

*Offers from Virgin(Stuart/Executive Complaints)

 

4 December-verbal offer of £250 to cover handset cost,claim fee and DD payments-no mention of credit files being cleaned.Still open to go to FOS.Rejected

 

4 December-written offer of £500 to cover handset cost,claim sum and fee and DD payments-no mention of credit files being cleaned.Second line and handset to be cleared and cancelled.Still open to go to FOS.

 

*Apology:mentioned in conversation,but not in written offer.

 

*SAR:Claim for non-fulfilment expires on 11 Dec at 4pm.

The only reference made to this claim so far is that the written offer of £500 will include the £200 sum claimed and the £25 fee for their noncompliance.No mention has been made as to when or if they will comply.

 

 

[BankFodder]

Thanks.

It seems to me that it might be an idea to accept the £200 and the claim fee to settle the claim but to leave the rest at large.

Of course we don't know whether they are going to acknowledge the claim or to file a defence – but as they are clearly aware of the claim, it would seem extraordinary if they don't at least technology. Have you been checking on your moneyclaim account? It might give you an indication as to whether or not they have made a response.

I'm sure that they haven't put in a defence because otherwise they wouldn't off you the £200 but they may want to delay things by putting in the acknowledgement with an intention to defend.

I do think that they rest it should be left at large because you are in no position to understand exactly what has happened and how bad their mistake has been.

Clearly the damage to your credit file is extremely serious. I'm also completely unhappy with the idea that they are "cancelling" agreements – when those agreements don't exist.

Please could you check your moneyclaim account and let us know if anything has happened.

Would you be happy to accept the £200 now – and then reject the rest until the whole matter is sorted out. If you were happy with this approach then I would suggest writing them in a letter making clear that you are prepared to accept settlement of your claim and the claim fee but you are rejecting the rest of their offer is first of all is wholly inadequate and that there are outstanding issues to be addressed.

You should also make it clear that your withdrawal of the claim is conditional on their payment in full and so that they better get a move on or else you will be proceeding to judgement at the first possible opportunity

I can imagine that they might even be silly enough to reject your acceptance and insist that you take the whole payment or nothing at all. That actually would be extremely funny and could cause them embarrassment if we eventually get to court and that is revealed to the judge.

Assuming that they do agree simply to pay you the £225, then as soon the monies paid I would suggest that we send them an immediate letter of claim for their breach of the data protection rules by not supplying you with the subject access request. I would say that this time it will be a more modest claim seeing as your distress has been addressed up till the date of issue of your claim. We would now say that there was further distress of £100.

Of course they will howl with rage – eventually they might agree to pay the £100, but I would suggest that in this case you would reject the settlement and insist on going to judgement on the basis that this is a repeated statutory breach and you therefore have reasonable grounds to proceed to judgement.

I think this might start to exercise them.

 

Let me know how this all sounds. We can draft a brief letter of acceptance.

[Intrepid]

On 08/12/2020 at 11:19, lemon_martini2 said:

 

Initially I was told this Notice was system generated and so it would be stopped...however later in the conversation I was told this wasn't the case and it would continue being reported as in arrears until an agreement was made.

Until this happened, they could not do anything to my credit report. This arrears would continue to appear and show as a default and the other defaults for missing payments would still remain on there. It would be in 'my best interests'-(ha!) to accept an offer as soon as possible

 

Please tell me you have a recorded copy of them attempting to hold your credit file to ransom for an unlawful debt in order to entice you to settle a claim. It is unlikely they would dare let that be disclosed in court. Your case is strengthening by the minute as they clearly are trying to push you into settling but in doing so aim to substantiate the debt or at least prevent any claim the debt is unsubstantiated which imo is the more egriegous cause for action.

 

Virgin are attempting to use your credit file as a bargaining chip when what they should be doing is investigating your complaint and clearing the debt and any credit file marks if it is found to be unsubstantiated.

 

Do you have any sense you have been a victim of fraud and someone has used your identity to purchase a handset?

[BankFodder]

I'm sorry @Intrepid but you are making an assumption here which is that they are aware that an alleged debt is actually a mistake on their part.
We have no evidence of that and frankly, we are dealing with a reputable company that has simply made a very bad mistake and appears not to realise it yet. I don't think we are in a position to draw any other inferences at this stage.

Of course if and SAR showed in fact that they now appreciated that they had made an error and somebody was reluctant to come forward and put their hands up then that would be a different matter but I don't think that this is a matter for discussion yet.

On that basis, I'm afraid that many of your remarks such as "using credit file as a bargaining chip" and "holding credit file to ransom" are all a bit precipitative and feels a bit as if you are thrashing around trying to find some legal foothold.

Even if the thing is simply some piece of inadvertence, we have more than enough to sort the matter out – but it would simply be nice to get chapter and verse before making a move

 

[lemon_martini2]

Nothing has happened with the moneyclaim account.

 

Yes-I would be happy to take the £225 for the claim fee and reject the rest-especially as the SAR has still not been complied with and the payment of the claim amount does not relieve them of the obligation to provide it.

 

It also gives us the benefit that time of the essence on their side-if we can get a letter put together that can be sent tomorrow, that can be taken to arrive Friday-and the clock stops ticking on the claim at 4pm on Friday for them when I can get judgment- and if they still haven't complied, then we can just immediately issue another claim. 

 

Your assistance has been greatly appreciated as always

[BankFodder]

Okay, let's just leave it for the moment. See what happens on Friday and decide on a letter over the weekend.

Of course if there has been no response to your claim tomorrow then you should apply for judgement immediately. Don't hang around.

If they have responded with an acknowledgement then we'll write a letter accepting their offer and then follow it up with a letter of claim once you have the money.

 

I don't think there's any point in doing anything until we know whether they have reacted to your claim. It's worth another day's wait

I will be extremely surprised if they haven't made any response. It would really show gross incompetence on their part – but if that happens then of course you apply for judgement that you should realise that even though you apply for judgement, if they suddenly wake up and put in a defence before your judgement application has been processed, then their defence will take priority.

[lemon_martini2]

OK the hour has struck and all I have received from Virgin is another letter today dated 19 Nov(!) in which they state they are still investigating my complaint. Nothing else-I've attempted to claim judgment on the site but it says you cannot claim judgment by default until the correct number of days have passed,so I shall try again tomorrow.

[BankFodder]

Yes, keep on trying and hopefully it will let you in at some time.

If it allows you to apply for adjustment, then maybe it will be an idea not to contact virgin for a few days and see if the judgement application actually goes through.

If they haven't woken up and managed to intervene in time and a judgement is granted, then I think that we need to discuss how to leverage this because it will up the ante

[lemon_martini2]

MCOL finally got its backside into gear today and allowed me to proceed with it so judgment by default has now been applied for. Still no word from Virgin and no sign of any SAR data... 

[BankFodder]

Okay, good news. I have to say that I'm a bit surprised that they've let it go.

I can imagine that when they realise, they will try to get a set-aside although I'm not quite sure how they will manage it because the grounds of the set-aside are firstly that they didn't receive the papers, and secondly that if they were given an opportunity to defend, that they would stand a good chance of success at trial.
I can't see them having much success.

I had suggested that you send another letter of claim when you get the judgement – but on reflection, I think that a better tactic would be to let it go for a week or so and wait until you get confirmation of the judgement in the post.
That may be 7 to 10 days – then send the letter of claim giving them 14 days which might take you squarely into the disorganisation of Christmas and the New Year. If they failed to respond then issue another claim immediately.

If you are happy with this, then we  can work out the wording and the details.

If we get to the point where second claim is actually issued then we'll see if they respond to that claim – or whether you can enter a further default judgement.

Of course, if you feel that you are in a hurry then we can move it along now, but if you are prepared to wait a little, I think that the advantages  that will pile up will be very helpful when it comes to the time to make your move.

 

 

[lemon_martini2]

I'm quite happy playing the waiting game and it was a good job I did as Thursday has brought three activities:

 

Firstly, Stuart from the Executive Office rang to ask I was prepared to take their written offer of £500 to cover handset cost,claim sum and fee and DD payments, with the second line and handset to be cleared and cancelled, and still op en to go to FOS.

 

I declined as 

a)the SAR had not been complied with-apparently this is 'being progressed'

b)the second occurrence was I received an alert on my credit file:a negative marker will be placed on there as the account status has worsened due to Virgin reporting the payment for the second line and handset as being in arrears, and their offer contained no mention of cleaning up credit files or removing these arrears.

They also seemed blissfully unaware that the judgment had been entered for their claim- without any reply or defence from them-so I was not going to enlighten them to this fact.

 

Thirdly, I received an email for them about my DSR request which they apparently received on 26 November- as I reminded Stuart vehemently, it should have been progressed in March or April and has been in that state since. I shall be prepared if they try to supply the data and then claim it was within the time limits using 26 November as the starting date.

 

So I am more than happy to just wait until the judgment rolls in with the Christmas post-as soon as it does,I shall get the next claim put in for continued failure to comply.

 

 

 

[BankFodder]

It's all quite amazing. The level of staff development there as far as data protection goes must be quite negligible. There data protection officer would be furious if he realised what was going on.

I suggest that you send another letter of claim on Tuesday. Are you sending them by email or by post?

 

 

[BankFodder]

You might want to send this on Tuesday - a variation on the first one

 

 

Quote

Dear Sir/Mdm

On XXX date I sent you a subject access request for a statutory disclosure of my personal data under the Data Protection Act.

You have failed to comply and are continuing to do so.

Your breach of statutory duty is complete. It has caused me a great deal of distress not having my data in order to start disentangling the problems you have continuing to cause by the negligent running of my account together with the repeated necessity to chase after you to get this disclosure and having to suffer your repeated broken promises on the matter.

I shall be beginning a County Court claim against you in 14 days and I am giving you an opportunity to respond.

Yours faithfully

 

 

[lemon_martini2]

Confirmation of judgment received,entered against them on 16th December-received on 19th December,so a nice speedy arrival from Northampton.

 

I'm sending them all by recorded delivery mail so there's no chance of them getting 'lost' or 'never received'.

 

When I put in the next claim do I have to disclose that there's already been a judgment entered in this case and that this has neither been paid nor the SAR details received yet? Not sure if MCOL will automatically record that there is an outstanding judgment on the claim already.

[BankFodder]

When you say that you are sending them by recorded delivery, what do you mean? I hope you are not sending virgin a copy of the judgement.

In terms of the letter of claim, no you don't need to refer to anything. As I said, I suggest that you send it off on Tuesday.

I think at some point it will be worth writing to virgin and informing them that you now want an immediate and unconditional settlement of the judgement so some me or else you will put the bailiffs in.

However, let's just leave it a little bit longer if you are happy with that

Maybe you would like to post up a copy of the judgement so we can all have a gloat

[lemon_martini2]

Oh no I haven't sent Virgin any documents. I was referring to the letters before action-'if the SAR is not sent by this date, I shall put in a claim' or 'this SAR is now outstanding and you have breached the GDPR regulations' being sent by recorded delivery. Everything else to do with the claim has gone through MCOL. 

The judgment is rather uninteresting to see but a welcome addition to the files. 

[BankFodder]

It would be helpful if you could scan it as a proper pdf file so that we can make sure that people see it clearly

 

I'm not sure what you intended by

 

Quote

 I was referring to the letters before action-'if the SAR is not sent by this date, I shall put in a claim' or 'this SAR is now outstanding and you have breached the GDPR regulations' being sent by recorded delivery. Everything else to do with the claim has gone through MCOL.

 

[BankFodder]

Okay. It seems that we are moving on.

Is there a cover note and do they refer to the recent letter of claim that you have sent them? What is the seem to be independent of that?

And certainly, apart from what it contains – should certainly be on the lookout for what is missing. If it's an incomplete SAR then is also an unlawful disclosure.

[lemon_martini2]

Virgin have finally sent something in reply to the SAR. It is all in email format and since it arrived in the early hours l shall have to go through and see what's included. From first glance it appears that conspicuous by its absence is the signed contract for the handset..still. l did try responding pic as pdf but just got same result..l shall try later on on computer rather than phone.

 

No cover note,no reference to any claims,no notes from anyone.

 

Just first email stating what I had asked for and that the link necessary to download the data would be sent separately: and that authorization codes sent to my phone to enable me to access them-which is where we were before. 

This time,the link and codes both arrived correctly. It appears to be predominantly pdf's of bills although Complaint History and Contact History files should be worth a peruse through.