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

[BankFodder]

Thank you. Yes, I remember now the file extension because they had already supplied some information. They've now ignored your letter of claim so I think that you start the next action – as well as of course, putting the bailiffs in on the existing judgement.

In terms of the SAR, I think I had in mind that you would send a second SAR solely for the handset – and I suggest that you do that straightaway. Although generally speaking we don't limit SARs, in this case I think it would be useful to send an SAR which relates simply to this mystery handset.

So three things –
get a warrant
Sue on the most recent disclosure breach
SAR specific to the mysterious handset

[BankFodder]

Yes I think you should simply go ahead and apply for a warrant and execute it.

In terms of further damages for distress, I agree that it is a continuing breach but on the other hand you have had damages for distress up until X X date (I can't remember when) so you are now applying for damages for distress from that date.

I think probably £200 is a reasonable figure. I certainly agree that the continuation of their breach tends to compound their responsibility but we aren't really trying to get money out of them, we are trying to prove a point.

Up to you – but I would have thought that £200 would be reasonable.

Don't forget that when we finally get the information we need and they eventually put their hands up to their error, you will be looking at something quite substantially more and there will be the further question of the inaccurate processing of your data which itself is a serious matter in addition to the damage which it has caused.

 

[BankFodder]

Of course, the warrant will be requested to execute for the judgement sum and the claim costs as well as the cost of execution.

[BankFodder]

Thanks. The outstanding SAR is the one which relates to the second claim – is that correct?

Did you send off a third SAR – specific to the mystery telephone number?

[BankFodder]

Okay. I was losing track. Thanks

I'm intrigued to know what their reaction is going to be when they eventually get visited by the bailiffs – although I have to say that County Court bailiffs are pussycats compared to High Court enforcement officers

[BankFodder]

I think you could usefully telephone the Sunderland County Court during the week – maybe Wednesday to find out the progress of the warrant and what date they imagine that they are going to go round and execute it.
They might also tell you whether they are preparing to make a visit or whether they are going to do it by letter initially.

This kind of information is available – because about 10 years or so ago, we sent the bailiffs into the Royal Bank of Scotland in Camden Town and we managed to get the data in advance and we had the press waiting to report.

 

Quote

A man who was fed up with paying massive bank charges decided to give one of the high street giants a taste of its own medicine.

When Royal Bank of Scotland refused to refund £3,400 charges that Declan Purcell believed he was owed, he sent in the bailiffs.

Stunned customers at his branch of RBS watched as debt collectors seized four computers, two fax machines and a till filled with cash.

 

The branch manager was told that the items would be sold unless RBS came up with the money owed to Mr Purcell.

 

Only when the manager gave an undertaking that the debt would be paid did the bailiffs leave.

Mr Purcell said: "I think the bank was pretty shocked when the bailiffs went in. But my view is that this is exactly what they would have done to me."

The move, which will raise a cheer from millions of other bank customers, is part of a consumer fightback against bank charges, which net an estimated £4.5 billion every year.

Every time a current account customer goes overdrawn by as little as £1 most banks will charge around £28, even though the administration cost is only about £4.50.

Then every cheque, direct debit, or card transaction that goes through or is bounced incurs another charge of up to £38.

The Office of Fair Trading is investigating whether banks have implemented these charges unlawfully.

The Daily Mail's Fair Play on Charges campaign and that run by the Consumer Action Group have helped thousands reclaim charges in the past year.

 

https://www.standard.co.uk/hp/front/customer-sends-bailiffs-in-to-seize-bank-s-computers-7197321.html

oh how we laughed

 

 

[BankFodder]

Amazing. He called on a Sunday?

Also I would refuse to accept any deal where it falls to you to repay the cost of the handset. The handset has nothing to do with you. You have no obligation towards that account whatsoever.

If they are really saying that they have got no more data relating to you then we are getting closer to a checkmate situation for them.

What they are in effect saying is that anything relating to the handset is not your data and you are not entitled to it. Hopefully that will be confirmed when they respond to the SAR which specifically addresses the handset account.

In terms of refusing further requests, as the request has never been satisfied then these are not further requests. They are simply continuing the reminders of the initial request.

The only one which is a separate/discrete request is the one which specifically addresses the handset account

[BankFodder]

I don't know if they can be combined and it is an interesting question because if we could eventually combined. judgements to a sum of greater than £600 then you could put the sheriff's in and that's where you are in for some very serious enforcement

apart from that, my preference would be for separate enforcement so that you have a sort of drip drip death by a thousand cuts approach

 

After all it's not really about the money. It's really about waking them up and giving them a good shake

[BankFodder]

enforcement by sheriff's is a no-nonsense approach. No excuses. No warnings. And the cost of enforcement are typically £2,000 to be borne by the defendant

[BankFodder]

Oh well that puts an end to the idea of the sheriffs.

May as well stick to the idea of getting them enforced separately

 

 

[BankFodder]

I must say that I'm finding this claim rather frustrating.

I really imagined that once virgin received a threat of legal action the first time, that they would wake up and start to sort it out and then once it was sorted out we would simply examine what the whole farce had cost and then begin a claim for compensation.

When that didn't happen, I really thought that when the claim papers were issued they would wake up and start to take it seriously.
That didn't happen.

Now apparently they've had to bailiff letters and they still haven't reacted. They also had another claim and they still haven't reacted – with another four days to go.
They also had another SAR targeted specifically at the phantom telephone account – and which has a return date coming up – although I can't remember what the date is – and they still haven't responded to that.

It's quite extraordinary and somebody virgin really wants kicking. In fact it's the senior management the wants kicking because clearly they haven't bothered to set up proper systems or to put proper staff development in place so that people understand the seriousness of what's going on.

When is the return date for this last SAR?

[BankFodder]

Assuming you get the judgement and then go ahead to enforce it, I can imagine when they finally wake up and we start talking about compensation for the damage they caused, they will try to say that you've already had £400.

They will have difficulty appreciating that the £400 simply for repeated SAR breaches and have nothing to do with the substantive problem.

Also, if they are offering you some internal ADR procedure then I think the answer has to be – no.

The only thing that counts for these people is that they are subject to court procedure.

[BankFodder]

It it wouldn't at all surprise me if they didn't make the connection at all.

I'm wondering what to do if they don't respond to the third SAR. You could begin a claim for more money – and this time make it something much more substantial, or else use a Part 8 procedure which would eventually force them by means of a court order to produce the personal data you are seeking.
The only trouble with that is that if something went wrong, there would be a question of costs because the normal rules for small claims would not apply.

[BankFodder]

I would suggest that you email them immediately and point out to them the date that it was sent to them and that the SAR was effective from XXX date (two days after you sent it) and that the statutory date for disclosure is XXX date and that if they do not comply by that date then you will be embarking on the pre-action protocol and send them a letter of claim

And on the other one, isn't today the day of judgement day?

[BankFodder]

Thanks. Last time we deliberately waited for 30 days to make sure that the CC J was registered against them. This time, – and because the bailiffs seem to take so long, I would suggest that you give it say, about seven days after you actually receive the judgement – and then put the bailiffs in.

Virgin might wake up and pay – but in the event that they don't, then it is on likely that the bailiffs will have enforced before the expiry of 30 days and so that judgement will be registered against them anyway.

It will be interesting to see how they respond to your latest SAR.

Three scenarios –

• the first one is that they provide all information which explains the entire story and their mistake so that we can then start to take action to sort it out.
• The second one is that they may respond and say that they have no data on this at all – and once again that then opens the door for action.
• The third one – and maybe the most delicious – is that they reply to you and say that you are not the data subject in question and therefore they are not permitted to provide you with this information.

[BankFodder]

Well your first proposed scenario is really equivalent to the second possibility which I suggested – and that they say they don't have any data because if they say that they have already supplied everything, then that means that they got no record of you at all starting up this phantom contract.
That I then think gives you the cause to go ahead and attack them on the basis of inaccurate data processing and that they have opened up an account in your name and build you et cetera et cetera et cetera and caused you damage.

Your second proposal – that they do reply at all – would certainly be interesting but it seems unlikely in view of the fact that they have now acknowledged and they appear to know what it is that they've received.


 

Was this most recent acknowledgement of the SAR from a different department?

[BankFodder]

Oh well, I suggest that you send them the reminder about the expiry date so that they have a paper trail and they have an opportunity to object if they want when they get the letter of claim

Do you send that latest SAR by email or by letter?

[BankFodder]

So, have you applied for judgement?

 

I jumped the gun and changed the thread title

[BankFodder]

Well it won't be a perpetual cycle but if they don't make a disclosure in respect of the mystery phone number, and you obtain a judgement – and then the failure to disclose continues and I think that is the time that we will take a more serious measure either by bringing a part 8 claim or else by making a very much more substantial demand of, say, £750.

That should galvanise them into action – and if it doesn't and you haven't get judgement for that then that is sufficient to put the High Court enforcement officers in. That should be enough to get someone asking what is going on and then maybe we will be able to unravel the problem.

I expect that we will be able to bring this to a head within a reasonable short time – and in the meantime, the judgement sums are all money in the bank and have nothing to do with the money which you will eventually claim for the damage they caused you in respect of the mystery phone number

 

[BankFodder]

So once again jumping the gun slightly, it looks as if you will be sending another letter of claim tomorrow.

Clearly this is getting very stressful and I'm sure you are very distressed – within the meaning of the Data Protection Act.

On that basis I would suggest that you send them a letter of claim without too much detail but pointing out that there mishandling of your account and your personal data and the repeated refusal to provide you with personal data is now causing extreme distress because their failure to provide you with the information you need to establish how the mismanagement of your account occurred are unable to resolve the problem to address the substantive damage which has been caused.
In particular you have both recently sent them a statutory quest for data disclosure dated XXX and despite a reminder from you they have failed to make the disclosure.
Therefore you require the disclosure and you require a payment of £620 by way of compensation for the increased distress they are causing you by their repeated breach of their data protection obligations.
By failing to comply once again with the statutory deadline, their breach of their statutory duty is complete but you are giving them a further 14 days to make the disclosure but also to pay the compensation and if your demands are not met in full then you will see them in the County Court and without any further notice.

It's important here that you only refer to the distress caused by the statutory disclosure breach. We don't want them later on to be able to say that compensation which they have paid you is also intended to address the mangling of your account and your data record caused by the opening of this mysterious account in your name. That has to be a completely separate issue.

It's important that your SAR legal actions are strictly limited to the failure to disclose.

Of course it would be extraordinary if this letter of claim is ignored and even more extraordinary if you manage to get a judgement for £620 – but if you do, then you should put the sheriffs in and that will certainly serve as the wake-up call which will help us to start moving forward on dealing with the substantive issue.

Even if you don't get the judgement – an action for this value should be enough to make somebody start asking what on earth is going on.

Of course bring action for this value will cost you slightly more and even if it comes to nothing, will make sure that these expenses are addressed in the final accounting.

[BankFodder]

One last thing is that they may start leaping into action and offer to sort out your account for you. I would suggest that you absolutely insist on receiving all the data and written explanations of how it happened.

Don't forget that ultimately, there is the issue of mismanaging your account because to have opened this mystery account they must have used personal data which is in the possession in respect of the legitimate account and to do that they would have breached their contract to you.
Also, to have opened this mystery account they must have breached the data protection act in that they have failed to process your data accurately or lawfully.
So merely an offer to sort it out – probably with some derisory offer of compensation – would, in my view, be unacceptable.

Also, an offer from them to sort it out might simply include an offer to "correct the record". This also would be unacceptable. Every trace of this on any credit file relating to you must be completely faced. They must disclose the identities of any third parties to whom the inaccurate data has been disclosed and then we will have to examine what other damage might have been caused by this.
I think eventually a full letter of apology with a complete explanation as to how this has happened should be insist upon.

Finally, they have a duty to report all data protection breaches to the ICO. I expect they probably have never done that in their lives – but you can insist they will do this time.

[BankFodder]

Well they haven't met the deadline – so I suppose it's letter of claim tomorrow.

Let's know if you decide to claim for £620. I'm sure the amount of distress you have been suffering is quite severe and worth at least £620. Nothing to do with the fact that you can put the sheriffs in as well

[BankFodder]

Is that the same address which was used for the issue of the claim papers?

Is there also the same address which was used for the issue of the first claim and for that warrant of execution?

Is it the same address as was used for the SARs?

[BankFodder]

Well if it really turns out to be a wrong or out of date address, then it gives us a problem.

Although it might be the wrong address on their website and their fault for not keeping it up-to-date, it would mean that they have got the grounds were set aside although they would have to reimburse your costs.

This may well set us back completely.

What was the address that you used?

[BankFodder]

I'm afraid that we probably have a problem.

The problem is that although this may be a valid postal address, it is not a physical address. It actually doesn't exist. Many big companies simply have various postcodes which really are simply nothing more than letterboxes – or the equivalent of box numbers. That means that although correspondence which is sent to those postcodes would arrive at the correct department, when there is then an attempt to enforce a judgement involving a physical visit, it is impossible to enforce.

Did you say at some point earlier in this thread that they had been reference to the claim which had started? This would be helpful if there had been because at least this would show that they were aware of the claim and that would block a set-aside application.

However, I'm afraid that in the case of bailiff enforcement – it's a nonstarter.

If it is there published address and they are receiving correspondence there then there is no doubt that they are in breach of the SAR. However, it may be that action will you have taken subsequently is wasted.

Let us know if they have referred to your original action. I have a sense that you did say something at some point