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

[BankFodder]

I'm not sure whether it is possible to present a new address for the execution of a warrant. Maybe my site team colleague @Andyorch can help on this point

[BankFodder]

Thanks. I have to say I was wondering what to do about it.

I think the next claim you issue should be against a street address.

I suppose that there will be a reaction to that – it will be interesting to see.
As you say, nice to see that they are up to their usual high standards. Just digging themselves further into a hole – I hope.

[BankFodder]

I suggest that your next claim should be something like this:

Quote

The claimant seeks £X X X damages for distress caused by the defendant's continuing breach of their statutory duty in failing to disclose personal data within 30 days in response to a subject access request which was sent to them on X X X date.
The defendant's breach is continuing because they have already failed to respond to to previous SARs and in respect of which judgements were obtained on X X X day and X X X date and which remain unsatisfied.
The claimant's distress has been exacerbated by the continuing lack of cooperation by the defendant and the inability by the claimant to obtain copies of his personal data and which the claimant believes have been inaccurately and unlawfully processed.

 

I think that in particular with the difficulties of the address, it would be helpful to put this third claim in context so that virgin realises that things have been going badly wrong.

I suspect that by the time this gets sorted out, the second claim would have done it 30 days and will be registered against them as well.

 

 

 

 

[BankFodder]

Maybe you could send a picture of the entrance to the bailiffs and tell them that – X – marks the spot.

[BankFodder]

https://www.gov.uk/government/publications/form-n445-request-for-re-issue-of-warrant

 

Do you know which SAR these "more files" are in response to?

Your most recent SAR was directed at the mystery phone number

[BankFodder]

In the reasons for re-issuing the warrant, I suggest that you put something like:

 

Quote

The address used for the pre-action protocol and for the issue of the claim is a correct address and subsequent exchanges with the defendant show that the defendant was aware of the claim which have been brought against them.
However, the address used in the claim – X X X address – is simply a postcode address and not the location of a physical building. Therefore although the defendants were fully aware of the proceedings which had been filed against them, there was no physical building for the bailiffs to visit in order to execute the warrant.
The new address which has been proposed for the reissue of the warrant is a proper physical trading address of the defendant.

 

I have suggested this wording because it is important to make sure that the court knows that the defendants are fully aware of the claim. If the court believed that the defendants had not been aware of the claim then they will probably refuse to reissue the warrant.

[BankFodder]

It will be especially amusing if the file contains references to your letter of claim, the claim papers and even to the judgement.

[BankFodder]

Please excuse me for getting confused again. There are so many strands to this that I need to clarify where we are on your most recent post.

I understand that the documents you received in response to your most recent SAR which refers to the mysterious phone number/handset – is this correct?

I hadn't realised that there was an original offer of £500 compensation from them as well as their undertaking to remove all data, to close all accounts and to remove handset costs.
I understand from you now that they changed this is too much more limited offer.
Had you actually accepted the first offer? Is there evidence of this?

In your point number – three – you say that an ADR would be sent to you in only a few business days. What was this ADR? If you've mentioned this before then I'd missed it. On what basis do they suggest that you wouldn't be permitted to take legal action without having "received" the ADR. What you mean by having received the ADR? Normally one submits oneself to an ADR process.

Of course it's very interesting that they refer to a signed contract – and yet they have not disclosed to you. This is important. In what form has this been stated. Is it simply a record of a telephone conversation? Or is this actually some internal memorandum?

I don't understand the relevance of expecting to be sent information for the financial ombudsman. I don't see what the FOS has got to do with it anyway. The FOS doesn't regulate this sector.

[BankFodder]

Thank you.

In respect of the two warrants – you say they have been executed – but in fact they have been issued and the execution still has to happen. Yes?

In respect of the final SAR - which refers to the specific mystery handset, the disclosure you have just received apparently refers to that and so far seems to be incomplete. – Yes?

In respect of the compensation offer, I understand that it was only an offer and was never accepted. For some reason other in your previous post I thought that you and they had reached an agreement on it and that they had then reneged. That would have been excellent but I think I misunderstood.

I'm rather surprised that they said you should should take your complaint to the FOS. Surely they meant the communications ombudsman. And yes, to take your case to an ombudsman you would have had to go through their complaints procedure first which gives them up to 8 weeks to provide you with a final response and to which if you object, you can then escalate it to an ombudsman – but I'm sure not the FOS in this case because we are not talking about a financially regulated firm.

There are repeated references to the existence of a signed agreement is extremely important because the fact that they are referred to and not included it is pretty good evidence that the disclosure file is incomplete – at least in that respect. Of course it wouldn't surprise me if there was no signed agreement and that they were simply saying that to you by way of their winning argument.

Whatever, the most important thing is that it is reasonable for you to suppose that the disclosure is incomplete.

Are you able to identify other areas in which the disclosure is incomplete?



 

[BankFodder]

I think this needs to be settled in a court of law and I don't think any other method is at all acceptable.

It needs to be open, transparent and beyond doubt.

 

As you have had a possible disclosure I think it is reasonable to to write them and inform them  the disclosure they have made is incomplete and so therefore they are still in breach of their strategy obligations. that you are extending your time before you issue proceedings buy a further 7-days but after that you will definitely be issuing proceedings and there won't be any further discussion.

I think you have to take this approach in order to show the judge that you have been doing everything you can to be reasonable and to be co-operative even though they have failed in their duty.

 

 

 

 

 

 

 

[BankFodder]

Did you send the note giving them the extension of time? When does the extension expire/date for issue of claim?

I see that this thread started on 25 October. I have to say that when it started I thought it was going to be a quick fix and hadn't bargained for virgin's ineptitude which has certainly made it a lot more interesting but I'm hoping that March is going to be the month that it will finally all get sorted out.

Surely someone responsible within Virgin has got to start taking a look and understanding the extraordinary mess that they have built for themselves and want to sort it out.

 

[BankFodder]

On the basis that something is going to happen this month – meaning that somebody is going to wake up and that we are going to get to the bottom of the mystery, I think it would be a good idea now to start calculating your losses caused by this mishandling of your account and your personal data.

This is separate to the forthcoming third SAR claim which presumably you will be putting in on 6 March.

I'm talking now about identifying the losses caused by the attribution to you of a mobile phone account and handset which have led to this problem.

So I think it would be a good idea if you could have a good think about harm that you have suffered as a result of this and then we will see how that can translate into losses and in respect of which we can then claim compensation.

Obviously there are two main areas which need to be addressed:
we need to understand the harm which has been done to your credit file and your financial reputation generally.
This would include the need to know the identity of any third parties with whom this inaccurate data has been shared so that we can understand the extent of the heart.
Obviously you will be looking for all of this to be completely erased from your credit file and also for steps to be taken by virgin to ensure that this matter it is entirely erased from their own files and from the files of any third parties.

We then need to understand what losses if any have been caused to you in terms of financial disadvantage. Have you been prevented buying anything or obtaining credit or have you had to pay more for credit?

We need to have a fairly good idea of what this is cost you in terms of hours spent trying to sort it out since you first discovered the problem.

And then we need to look generally at your reputational harm.

It might be helpful if you started putting this into some kind of spreadsheet.

All this will definitely be needed at some point so that you have very clear picture of the effect on you.

We are dealing here not only with breaches of the data protection rules in terms of unlawful processing of your data, but I suppose we are also looking at breach of contract because presumably they use data from your legitimate account to set up the mystery account.
 

[BankFodder]

Who made the complaint to the ICO? Did we recommend it?

An uncharitable side of me wonders whether they aren't considering erasing all data in order to get rid of evidence of their bungling.
Have you checked your credit file? I think you need to make sure the get copies of everything you can from anywhere just in case various records get cleaned up. I think should set about that straightaway although it's a nuisance. Keep a note of the time you spend doing it.

Are you sure that the problems with Vodafone and also with Three were caused by your blighted credit file – blighted by virgin?

Can we take it that your credit file before this was clear?

I think it could be an idea to send an SAR to Vodafone and also to Three to see if they have any reference to the problem setting up your account with them and that those problems might have been caused by virgin.
Your credit file also might show searches by Vodafone and also by Three.
If there's anything else you can think of – then try to get the information.

 

[BankFodder]

By the way, is there a telephone number for the mystery handset? Have you tried calling it?

[BankFodder]

Any news on the wants of execution which have been issued so far?

[BankFodder]

Great, thanks for the update.

I sort of wish that I hadn't suggested the ICO complaint now because clearly virgin are on notice and they seem to have expressed an intention to erase data. I didn't realise this was going to go on like that.

So you've got some money in the bank – and the other thing is that it is evidence that they are aware of everything and is there is not even an attempt to challenge the judgement, I think that amounts to a bland acceptance of the responsibility – although I suppose they would say that they simply paid because it made economic sense.

So I wonder what is happening to the first one? Are you able to enquire?

So the clock is ticking away on the third one so we will move on to the next stage as soon as that time limit has expired. I think the fact that there are two judgements against them – and one of them has been satisfied now will assist your latest claim if it gets as far as a judge to show that virgin are serial breachers of their data protection obligations

 

I asked earlier on if you had a telephone number for the mystery handset and whether you had tried calling it.

Also, could you address the question I put about the state of your credit file. Also, have you got copies of everything – including credit file – in case everything gets cleaned up?
 

[BankFodder]

Sorry I missed the part about the message.

Excellent news that it was clean so that we can say that any damage has been caused was hundred percent by virgin.

Once again, please make sure that you have got copies of all data anywhere which is related to this problem – including damaged credit file – et cetera.

If virgin do start correcting their records and deleting data then your credit file will be updated within two or three weeks and it will then be difficult to get hold of the history.

Of course what would be funny would be if they simply updated your credit file as "settled".

[BankFodder]

Letter of claim, then.

[BankFodder]

Just a moment of caution – have any of the papers at all which you have received referred to this mystery phone and phone line?

[BankFodder]

Yes, but they definitely haven't supplied you with any data relating to that account?

 

[BankFodder]

Okay – thanks. Just checking that when you eventually issue your claim, they won't be able to point at data which has already been supplied against some other SAR.

[BankFodder]

Thanks for this – but I'm confused again!

Is this their complete disclosure to the third SAR – the telephone specific one?

I can scarcely read what you put up. Would you mind posting it again please – larger or in PDF format.

Do I gather they are unable to supply an IMEI number for the handset that they apparently supplied you?

 

 

[BankFodder]

So where are we. Is the SAR incomplete? And if it is what you think is missing?

Is it possible to put a block on that telephone using the IMEI number?

Although they say they don't have the original invoice, have we seen a copy of a contract – or any details of the date on which it was apparently bought?

They refer to an order number. Have you seen that order?

[BankFodder]

When you say that you are going to resubmit the first claim – I take it you are referring to the warrant of execution.

And yes it is still sitting on your credit report as a default. Of course we could proceed on that immediately – but the whole strategy for all these months has been to accumulate evidence hoping that we would stumble upon something which are not the whole puzzle.

We certainly haven't stumbled on any key but the evidence that we have uncovered so far – which is that there is no evidence despite statutory requests – is helpful. I still think that it is worth pursuing this third SAR in respect of the items that you have identified.

Although it's frustrating, I wonder whether in view of the fact that they have disclose this document, it's worth writing to them and giving them an extra five days and actually identifying the documents that you want produced and making it clear that your list of documents is not exhaustive.

I'm a bit anxious in case they say that there is absolutely nothing else and that they are prepared to confirm that in court – in which case you could lose the case if they defend it and you would lose the costs of bringing it.

Of course it would be very nice to get something from them confirming that there is nothing else – but maybe not if it comes at the expense of the defeat on this third claim. Maybe simply better to get it in writing from them before claim is issued.

I'm wondering whether it might be a good idea to write to them and say that in view of the most recent disclosure, can they confirm that they do not have X document and Z document and a B and C documents.

Of course they would still be in breach because they haven't met the deadline – and the documents they have supplied you with above is a new document which should have been disclosed.

But if you had a firm commitment from them that they didn't have those other documents, then that might be enough to use as the basis for challenging the substantive issue.

Once again, I really thought that their whole position would have unravelled by now and frankly I'm very surprised

[BankFodder]

Thanks.

When I suggest then maybe you send a note giving them a few more days and the list of the documents you think are particularly missing – with a warning that the claim will be issued if they don't respond.

At least then they won't be able to say that they didn't know what was being looked for and also they won't be able to say that they were given every last chance.

Today's Wednesday – may be if they given to next Wednesday and then issue the claim on Thursday