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

[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.

[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.

[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.

[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

 

[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.

[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

[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.

 

 

[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

 

 

[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

[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.

[BankFodder]

I don't quite understand.

You say that there is no reference to any claims or notes or anything. Later on you say that there is a complaint history and contact history to go through.

[BankFodder]

Please can you make a detailed list of the items which you think you are missing.

I suggest that you use a spreadsheet and look at the advice given on on dealing with your court bundle as a basis for the style that you might want to use for analysing the disclosure.

 

[BankFodder]

Also is there anything in the disclosure which supports your version of the events or is it all completely missing?

 

if it is completely missing then might be possible that there is a different account number somewhere maybe with a slightly different name and they haven't included that in the disclosure either deliberately or more likely simply because they don't realise that they are all part of the same issue

[BankFodder]

Happy New Year.

Any update on this?

As they have actually been negotiating over the £200 – but coupled with the rest, it might be an idea to tell them that if they do not satisfy the judgement sum within five days and unconditionally that you will instruct County Court bailiffs.

Also, I suddenly realise that they have a statutory duty to inform the ICO about the judgement. Maybe we should remind them of that but also send a copy of the judgement to the ICO with a complaint.

[BankFodder]

I can't remember where we are, have you sent them another letter of claim?

[BankFodder]

Thanks. If you can check back tomorrow and we'll figure out a couple of letters.

I think one letter to tell them that the bailiffs are on their way if they don't pay up in 7-days and a second letter to tell them that the disclosure is incomplete and to extend the date for issuing proceedings slightly.

 

 

I think we are getting close to the time where we can start dealing with the substantive problem which is isthe creation of this second account and generally speaking blighting your credit file

 

 

[BankFodder]

I've had a few overnight thoughts.

First of all, there is an outstanding unsatisfied judgement. You could take immediate steps to enforce this but I suddenly remember that if a judgement remains unsatisfied for 30 days it is then entered on to a register of judgements. This wouldn't make a lot of difference to you and I suppose it wouldn't make a huge amount of difference to Virgin – but it would be symbolic and of course it would be extra helpful when you make your complaint to the ICO.

On that basis, although yesterday I had thought that it would be time to threaten Virgin with enforcement of the judgement debt by bailiffs, maybe it would be cute to leave it to one side for a while and to begin the enforcement process on 19 January which, face it, is not so far away.
If you were happy with that then I would propose sending Virgin a letter on the 19th telling them that if they did not satisfy the judgement unconditionally within five days that you would hand the matter over to the County Court bailiffs.

Let us know what you think about this.

 

On the present state of the SAR and the incomplete disclosure which they have made, clearly they are in breach of statutory duty again. You sent them a letter of claim giving them 14 days. Maybe it would be an idea to give them a little nudge and a short extension.

On that basis I would suggest:

Quote

On XXX day I sent you a letter of claim in respect of your breach of statutory duty in failing to comply with my request for personal data under the Data Protection Act.
On 24 December 2020 I received a disclosure of data from you but on examination of the information which you have supplied I find that it is incomplete and does not represent all the data you hold on me.

My letter of claim of XXX date gave you 14 days to comply with your statutory obligations or else I would begin a legal action. In view of the fact that you have provided me with some of my data, I am extending my 14 day deadline by five days as a gesture of goodwill towards you.
However, I'm giving you notice that not only have you exceeded the statutory time limit for making a disclosure of personal data but also that your incomplete disclosure is a further statutory breach.

 

Your continuing failure to provide me with information which will allow me to solve the problems caused by your mishandling of my account since the beginning of this year have caused me great distress and this distress is only increased by your repeated breaches and by the continuing trouble and inconvenience caused to me as a result.
You can be certain that I shall be seeking compensation in respect of the distress you have caused me.
Therefore, if I do not receive full disclosure from you by XXX date [original deadline +5 days] I will sue you in the County Court and without any further extensions and without any further notice.
Yours

 

Also, am I right that there has been absolutely no disclosure at all in respect of this second account which they opened in your name? That is the account which is the root all the problem
 

[BankFodder]

I'm just trying to understand what you posted.
By large you agree with the way forward that I suggested.

However I'm not entirely sure what you are saying about the details which have been disclosed to you in respect of the second account. You say that they have disclose some details but not everything.

How can you be sure that there is more to disclose on that account?

Also, by way of a comparator are you able to see all the documents which have been disclosed in respect of your opening of the legitimate account? Are you able to compare that to the rather more sparse information which has been disclosed in respect of this second account? That might give you a very good idea as to what is missing

[BankFodder]

Maybe they are being Panglossian in their expectations.

Presumably, you have a signed contract for the first handset. However, supposing they said that the contract had been completed online? For them to have a signed contract for your first handset this would suggest that you had done this over the counter in a shop, for instance.

Yes, I had gathered that the 30 days expired on the sixteenth – but I figured you may as well wait for a few days in order to put it beyond doubt.

 

Do you want to aim to send the new letter of claim on Monday? If that sounds okay to you then maybe you could finalise your proposed letter – maybe using the suggestions I made above and post it here and we can tweak it.

Also, presumably you have the telephone number of the other handset – the rogue/phantom handset.

In that case I think it might be interesting to send a further subject access request sometime next week citing that number as their reference number and seeing what that produced.

It seems to me very likely that there is an altogether different account that appears to be unrelated to your main account and that might prove a very fertile source of information

[BankFodder]

Then I would suggest that you send the following letter about 21 January.
 

Quote

 

Dear Sir/Mdm

Claim Number X X X: Proposed Warrant of Execution

 

 

As you know, on 16 December 2020 I obtained a judgement against you in respect of your statutory breach of data protection regulations in your failure to provide me with a disclosure of personal data.

 

The judgement debt of £200 plus costs has not been satisfied - and instead it seems that you made the payment of the £200 conditional on my accepting a sum in full and final settlement of the various issues that I have with you.

I am attaching to this letter a copy of the judgement and I'm writing to let you know that unless you satisfy this judgement debt in full within five days of the date of this letter that I shall instruct bailiffs to enforce the judgement and without any further notice to you.

The use of bailiffs will incur an additional fee.

Yours faithfully

 

or something like it

 

 

 

[BankFodder]

And of course what would be deliciously funny would be that if you send them the SAR for the Phantom handset and then they came back to you and said that they couldn't satisfy the request because there was no evidence that it was linked to you….

[BankFodder]

Yes, the next thing to do is apply for a warrant and then execute it as you say.

In terms of the ongoing problem with the SAR, I thought you had already send the letter of claim? Maybe not – in that case you should send them a letter of claim straightaway and get ready to begin another action.

I don't understand what you mean by a letter sent on 11/2.

Have you send a separate SAR relating simply to the second handset number? Maybe this is what you are referring to – but when did you sent it.