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

[lemon_martini2]

Happy news! Cheque for Warrant 2 (£302) has arrived in the post today

Now to put in the N445 form to switch addresses for Warrant 1 as well...

[lemon_martini2]

This is starting to become rather tedious-another email from Virgin with my Data Access Request reply. This one contains absolutely nothing new(in fact even less than in the last one)-the same 9 calls as last time,a Mobile Glossary, and two files:Contact History and Webchat Transcripts which were last modified in February and only contain conversations and contact up until the end of January. And that's it-rather pointless them sending it since I have already have all the information supplied here.

[lemon_martini2]

Voicemail from Beverley from the Executive Office this morning. Apparently,their legal team will be reaching out to me soon. Based on previous experience, I won't be sitting hunched over the phone in anticipation...

[lemon_martini2]

Well since they haven't specified how the legal team will contact me I shall just wait. They've already used one week of their weeks to answer the claim and haven't done anything so far...

At the moment, it's a win-win situation for me-if they reply with an offer worth taking, I shall consider it. If they don't, then I just wait for the claim to become a judgment and collect the money.

[lemon_martini2]

Quick question-does the date that Virgin have to reply by include holidays or is it standard working days?

 

Their deadline is the 5th which is Monday.So far I've heard nothing from them.We won't get post for the next two days being Easter Day and Easter Monday and as the offices will be closed Easter Day and it's very unlikely they will respond on Easter Monday then their time will have run out-again!

 

Or is it best to wait a day or two after in case something turns up and they claim it was sent well before the deadline but was delayed due to the holidays?

[lemon_martini2]

OK Moneyclaim has now updated itself and it is showing Virgin as having filed an acknowledgment of service on 1/4 so that should give them until 15/4 to do something....

[lemon_martini2]

Another bit added to the puzzle... I had filed a Dispute with Equifax three weeks ago- it has been updated with the finding that since Virgin have stated that the information is correct it will remain there.

 

Most entertaining with Virgin's reply stating that since they issued the Deadlock Letter (this would have been last summer) they have received no communications from me and do not know what I want them to do.

I can assume that in that case the three members of the Executive Team who rang me in the last three months were just bored and wanting to pass the time of day with a random customer...

 

I love it  when they get caught out and you can point out 'you managed to reply to a letter,dealing with all the points raised in it, when you claim that you have received no correspondence from me. Your company's predictive skills must be amazing...'

[lemon_martini2]

So Virgin filed their acknowledgment of service on Apr 1 and their fortnight is up to submit a defence. 

I have heard absolutely nothing from them apart from the tumbleweeds rolling down the streets, a coyote or two howling on the lonely plains and one copy of their acknowledgment of service which arrived on about April 5.

Having checked Moneyclaim this evening is it now stating 'a bar was put in place for Virgin Media 15 April, Virgin Media filed a defence on 15 April, DQ sent to Virgin Media 15 April'. 

Do I just wait and see if their defence turns up as I have no idea what it will be. And what are a DQ and a 'bar put in place'? 

[lemon_martini2]

OK we have various bits of a defence-even though it states 'By post and email',nothing has arrived by email and the postal arrival has been filleted down so it's more slender than it should be. I wasn't able to get them into PDF format so I'm hoping JPEG will work as well.

 

There are several points that I have noted straight away from their defence- 

 

*they refer to no other correspondence apart from the SAR's'-yet I have ample evidence of correspondence with them both by mail,phone and webchat

*they state that payment has not been made since November 2019-their account ledger itself states a notice of default was issued on 2/1/2020 with the default date on 3/2/2020 and yet I have evidence from my bank that DD payments were taken until February 2020 when it was cancelled.

*most confusingly, their defence is dated 6 March 2021- some ten days before the claim was actually submitted!

 

They also include a credit agreement which goes through sections 1-6 and then lays out the pre-contract credit information and then rather confusingly hops from section 6 straight on section 11 so something has been omitted or misnumbered either accidentally or deliberately.

Shall I upload the credit agreement and account ledger too or was it just the defence you needed to look over?

 

 

 

virgin sar defence.pdf

[lemon_martini2]

Sorry for delay-we had a bit of a health scare here. I've gone through and tabulated them and there's a couple of things that leap out.

*They have ignored all the pre-action correspondence including two previous CCJs-one of which was actually paid.

*The dates for the SARs are incorrect even according to their own records as web transcripts and letters show that they do not mesh up with the dates given.

*They claim that I failed to make payments from 4 November 2019-bank statements show this to be incorrect as the DD payments went out in November,December and January.

*For the first time they have actually identified the store where the phone was sold.

*They admit that the SIM card for the mystery phone shows no evidence of ever having being used at all but get round this by claiming that I used a different SIM card with a different provider-again bank statements show that I did not use a new provider(with a handset they provided-and have receipts for) until after the contract had finished.

 

And then the Court sent their copy which includes everything including the portion left out of my copy including what Virgin purport to be the signed Credit Agreement.

I can see why they did not send me that section as they have fallen into a killer trap.

I changed my signature in 2020 and the only documents Virgin have with the 'new' signature on are the cover letters I sent with the SARs. If they used that signature from the cover letter to put on the agreement it would be instantly obviously as it would be the 'wrong' one-which is exactly what they have done!

 

 

[lemon_martini2]

OK here's everything-afraid it took a bit longer than I expected-not helped due to having to race into A&E overnight and then the computer deciding to delete my whole file and replacing it with something blank!!

 

The store-this is the first time they have specifically named the store-it was Exeter(my home city).The problem we have with that is that when the lockdown hit in March 2020,that store closed for good and has never reopened.

 

The defence is vague and generic and does not respond specifically to my claim except to ask to have it disallowed for 'acting unreasonably in issuing it without engaging in pre-action correspondence'.

 

I change my signature regularly as a security check-if I have a specific signature for a time period then it makes it easy to tell when documents etc were issued-this normally changes when I move address(every 2/3 years or so). On this occasion as it had not been changed for almost 4 years, I opted to change it on 1 January 2020. Since then all new documents and details have been using the new signature.

 

I've included their defence points and my comments as instructed.

 

 

VirgDef2.docx

Edited April 20, 2021 by lemon_martini2

[lemon_martini2]

POC in post 221 are correct.

 

With reference to the SARs in post 222.-In their defence they claim 3 have been submitted and each 'responded to fully'

Mar 2020(replied to in June 2020),Nov 2020(replied to in Dec 2020) and Jan 2021(replied to in Feb 2021). A fourth SAR was rejected in October 2020 as 'not following procedure'.

 

However,these were either inaccessible or lacking data. The latest SAR was submitted in Feb 2021.Despite email acknowledgment of them receiving it(17 and 22 Feb),I have not received any reply and it is not mentioned in their defence.

 

[lemon_martini2]

*The shop closed for lockdown in March 2020 and never reopened-it was confirmed in June 2020 that none of Virgin's high street stores would reopen. So last day of trading was sometime at the end of March 2020.

 

*That is indeed where I bought my legitimate handset

 

*None of the SARs have so far produced my own legitimate credit agreement, but I still have a copy of the order details and purchase summary stored in my emails.

 

 

[lemon_martini2]

Received and replied to. I have now to reply to Virgin's defence by May 4 stating whether I want it to go through small claims or another track and whether or not I agree to mediation(which I think should pretty much be a given to agree to).

[lemon_martini2]

I've sent over the details requested but I'm having another issue that I can't seem to get my brain around.

 

Having deciding to reissue the original warrant that was unable to be served in Sunderland as 'the address did not exist' I checked with the county court as to why they couldn't seize any goods when there was clearly a building at the site.

 

Apparently,this problem is well known to them.It transpires:

* The physical building on the site belongs to Virgin and contains their goods and property-this is an SR4 address.

*The registered address for service of documents and letters,including court papers is an SR43 address. This is just a mailroom within the building.

*Since the warrant was issued for the SR43 address, they were only allowed to take goods from that specific address(the mailroom)-which contains nothing except a very large mail cabinet.

 

How is it possible to have this address-within-an-address? Surely I couldn't give my address as being 1a and then when bailiffs turn up, tell them 1a only refers to the mailbox in the porch and the rest of the house is actually No.1?

[lemon_martini2]

Virgin have submitted their DQ answers and interestingly have said they are not willing for the case to go to mediation. They have also said that they will be calling only one witness. If that's not the person who received the SAR requests and processed them they can't comment on that surely? And if it's not the person who actually signed me up and set up the contract then they can't comment on that either?

 

And l was aware that they use a separate room for post-what l was querying was that if bailiffs turn up they can claim the mail room as a separate address so only goods from in that room can be taken.

Edited May 4, 2021 by lemon_martini2
Adding bits

[lemon_martini2]

Small update-confirmation letter from Reading Court that the first warrant(that we initially tried to execute in Sunderland) has been transferred and was issued on 4 May.Hopefully a cheque for the amount of £300 will again be winging its way to me soon...

[lemon_martini2]

You're going to love this-letter from Oxford County Court confirming a cheque for £302 has been received from Virgin Media in response to the first warrant.

That's a payment made on a case they claim in their defence has no merit and they want thrown out, not to mention that they've now paid £600(so far!) for a £200 handset claim

 

So far we have

Claim 1 for failed SAR requests: Not defended, judgment issued, warrant executed, £302 paid.

Claim 2 for failed SAR requests: Not defended, judgment issued, warrant executed, £302 received by court.

Claim 3 for failed SAR requests: Defended.

 

 

[lemon_martini2]

We have a development and I'm afraid I don't have the specialist knowledge to know quite what it means,so some help untangling the legalese to work out what it's saying and what the next move is would be muchly appreciated:

 

I have received a General Form of Judgment or Order from Exeter County Court stating:

 

'The court noting:

*The Guidance of the Lord Chief Justice dated 23rd March 2020 paragraph 6 that hearings requiring the physical presence of parties(the claimant/defendant etc.) and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety

*The Protocol regarding remote hearings dated 20th March 2020 paragraph 1 that the Covid-19 current pandemic necessitates the use of remote hearings wherever possible and that this protocol applies to hearings of all kinds including trials,applications and those in which litigants in person are involved in the County Court

And the court informing 

*The parties that the relevant rules of court are contained in Civil Procedure Rules("CPR")Part 3.3 which are available at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03 and CPR part 27 and in particular 27.4,27.9,27.20 and 27.11 which are available at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27 

 

It is ordered without a hearing that:

1.The claim is allocated to the small claims track

2.Pursuant to the power to do so in CPR Part 27.4(1)(e),the court gives notice to the parties that it considers the claim suitable for determination on the papers without a hearing as permitted under CPR Part 27.10 if all parties agree to this

3.The parties must notify the court by email to enquiries.exeter.countycourt@justice.gov.uk and every other party by 4pm on 4 June 2021

3a.If they agree to a paper determination,in which case the court may determine the claim without a hearing pursuant to CPR Part 27.10,but before agreeing,be aware that if a party agrees to this,then pursuant to CPR Part 27.11(5),no application can be made to set aside the judgment of the court and the outcome can only be challenged by appeal under CPR Part 52,which requires the permission of the court.

3b.If they do not agree with a paper determination,then they must state their reasons,after which a judge will decide without a hearing whether the claim is suitable for some form of determination at a hearing where the parties are present remotely(eg by telephone,Skype for business or some other similar platform)or whether the claim should be deferred until after the Covid-19 restrictions have altered sufficiently to permit a hearing at which the parties attend in court.

4.Because this order has been made without a hearing,any party may apply pursuant to CPR Part 3.3(5) to have this order set aside,varied or stayed.A party wishing to make an application must send up or deliver the application to the court,together with any appropriate fee to arrive within seven days of service of this order.

 

 

 

[lemon_martini2]

Many thanks-I've had a look through and it seems pretty comprehensive and focused. The time and effort put in by you is muchly appreciated.

 

A couple of clarifications so I know exactly what I'm talking about-

*Is quantum the amount of money being claimed?

*What is a recoverable head of damage?

 

And two points-

Where it refers to the 'claimant has brought the claim because the defendant has failed to respond to a statutory request' would it be worth modifying it to emphasize that they have actually failed to respond to X number of statutory requests on multiple dates or just confine it to the one claim that is being defended?

 

And would it be worth including with  'It is believed that in neither of the above two cases has the defendant complied with their duty to inform the Information Commissioner about their statutory breaches' that the Information Commissioner has actually ordered Virgin to either tell me how they will put things right or explain how they have met their data protection obligations and they have failed to comply with this instruction?

 

In other news, I have received confirmation that the case has been allocated to Exeter Crown Court(good news as Virgin wanted it at Leeds), and the cheque received at court on May 11 and just waiting to be cleared has still not put in an appearance, so I shall get in touch with them tomorrow and see where it has wandered off to... 

[lemon_martini2]

In January I contacted ICO about the Data Breach-on Feb 11, they replied stating that they had ordered Virgin to 'either tell me how they will put things right or explain how they have met their data protection obligations'- so far they have failed to comply.

 

Meanwhile I have been emailed from Virgin's legal team a copy of a letter that they have sent to the presiding judge.

They are attempting to have the claim struck out as an abuse of process:

 

Their grounds are that the warrant for the transferred claim from Sunderland was issued and on May 5 they issued a cheque for the amount. 

 

According to them, this was the first notification of claim that their legal department received(!) and when they checked the details of the particulars of claim realized that this new claim was dealing with exactly the same matters (failure to satisfy the SAR demand) and accordingly 'respectfully request the claim be struck out as the Defendant submits that the Claimant has issued a claim for the same matter on two occasions'.

[lemon_martini2]

It came by email only. output.pdf

[lemon_martini2]

Yes l will be able to get it all done tonight. Emailed ICO and got standard acknowledgment back. Am at work rest of day so cant do anything until 5pm or so but have set aside evening for it and have all the documentation for the three claims.

[lemon_martini2]

@BankFodderI've emailed you the drafts of the finalized letters for both the remote hearing application and the strikeout application to be got out to them tonight

 

Showing that they have breached the data regulations with proof is actually being made much harder by their haphazard paperwork which is allowing them to conceal things and make them look compliant when they aren't.

 

For example,an SAR was submitted on March 11, a reply was sent at the end of March,so at first glance it appears they are in compliance-but on closer investigation,that reply is actually in response to February's SAR request!

 

Also-in response to the SAR of February 11,I have received three emails thanking me for my SAR all of which claim to have received it on a different date.The cynical would say this is so they have a choice of dates so when they do reply they simply select the date that keeps them within the regulations... 

 

 

 

[lemon_martini2]

OK-the only reason I didn't post them up here now is they now contain all my identifying information. I can post them up redacted but it'd be pretty much exactly what was already posted before.