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

[BankFodder]

When you are preparing your documents and also when you are considering your arguments it will be very important to maintain focus on the reason you brought this action and your particulars of claim.

The only reason you brought this action was because of their breach of statutory duty. Their failure to provide you with the documents that you wanted on time or to make a complete disclosure.

Nothing else.

You have seen already that in the chaotic models of their defence, they are trying to bring in other issues which are not part of your claim. I fully expect that either they have lost sight of the purpose of your claim or else they are trying to muddle it up deliberately and to throw in everything else.

If this happens during the hearing then you must immediately interact and point out the judge that with respect this is not what your claim is about and that your claim form makes no reference to any other issues other than their failure to disclose documents as required by the data protection statute.

At some point it may be necessary to remind everyone that the judge has only allocated one hour to the hearing and they are trying to refer to so many other issues which are not part of the claim that they will go considerably over the allotted time.

It will be extremely important to point out the judge that their defence is chaotic and makes almost no reference at all to the substantive issue in your claim which is their failure to disclose your personal data.
Of course they will be helpful as well when you point out the judge the disparity in the dates and the fact that they clearly prepared their defence before they had even received your claim form.

So I expect that that will be the dispute over the substantive issue. They will try to bring everything in and you must prevent them from doing it and you must constantly bring the focus back to the substantive issue in your claim and the fact that they haven't addressed the substantive issue and in fact their defence effectively amounts to an admission because at no point have they actually denied that they have failed to disclose the personal data.

The second issue will be the amount of damages you are claiming. They will try to say that you have no basis for claiming £600. You are going to have to think very carefully to demonstrate how distressing it has been for you not to receive the personal data that you have asked for and furthermore for you to have made such extraordinary efforts to obtain the personal data and that itself has been extremely distressing – and that's what the data protection rules provide for when the statue makes it clear that "distress" is a head of damage.

The other side may well want to have evidence that you have suffered in some way physically – maybe you had to go to the doctor or you have been unable to work et cetera and that your damages for distress should follow on from that physical injury.
This used to be the rule but then there was the case a few years ago – Google against somebody and there the court held that the data protection statute should be read to mean that damages were available for pure distress without any evidence of any other physical injury or damage. You will have to look it up and find the name of the case.

However, £600 is quite a chunk and they will do everything they can to knock it down. If you manage to succeed on the substantive issue that they failed to disclose the data – then virgin will look for a face-saving decision which will mean that they will want to persuade the judge to award you a smaller sum. Virgin may then attempt to say that if you had tried to claim a more reasonable sum to begin with that they would simply have settled and they would have been no need for litigation.

Once again, you will have to remind the judge that this is a statutory breach and then it is serious for a company as well resourced as virgin to act so irresponsibly as to contravene its statutory duties. But you will have to emphasise very much how distressing it has been and you will have to emphasise again to the judge that it was sufficiently distressing for the first two breaches committed by virgin for which you have obtained judgements and in respect of which they have paid without any objection but the serial nature of their continued breaches of your statutory rights have been so gross and so astonishing and traumatic to you that you have been fully occupied with the problem. That it has affected your daily life in the sense that you have been unable to stop thinking about it, to stop preparing about it or to concentrate on other things in your life because you have been preoccupied with the data breach.

A very important point that you must make is that you should point out to the judge that virgin have still not complied despite the fact that they are now fully aware of the issue and they have had lots of opportunity to address the problem and they still have continued to be in breach of their statutory duty.

What will be very interesting will be to see their court bundle. If it turns out that there court bundle contains some personal data which had not been disclosed to you up to that point then that will be further excellent evidence that the litigation has been necessary simply to start teasing out some of the information that you have been seeking.

So in conclusion – for the moment –

• make sure your court bundle is focused only on the data breach. Do not be diverted to starting to prepare documents which relate to the real problem of the Phantom account. If you start to make any references to that or if your court bundle contains any references to that substantive problem then you will have allowed yourself to be led away from the real issues behind this particular piece of litigation which is their failure to disclose your personal data.
• Being completely prepared for their arguments which will dispute the amount that you are claiming on the basis that either you have suffered no distress or else the distress which you have suffered really doesn't add up to £600 worth.

I can fully imagine that when you receive their bundle it will have all sorts of references to the dispute over the Phantom account. You will have to go through their bundle quite carefully and you may well find that a very large chunk of it is not at all relevant to this particular dispute over their failure to disclose your personal data.

When you receive their court bundle, it will probably be worth making your own index sheet to it and identifying documents which you consider are relevant to the current litigation distinguished from documents which you consider are not relevant but probably are relevant to the dispute over the Phantom account

 

[BankFodder]

Additionally, they may try to make references to the previous payments of damages in relation to the earlier litigated breaches. They will try to say that you've had enough money. Once again, it must be pointed out that you are dealing with a completely fresh breach.

However, references to the previous breaches can be used against them to emphasise that they are serial offenders in terms of a breach of statutory duty. Also I seem to recollect that the ICO instructed them to contact you with certain information and they have so far failed to do so.
Although this failure to follow the ICO instructions is not part of your present litigation, it certainly helps to show how dismissive they are of their statutory obligations and how even this blatant disregard of ICO instructions in the face of previous statutory breaches has helped to compound your level of distress.

[BankFodder]

How are you getting on with the court bundle? I'm afraid I've forgotten all the various deadlines. Maybe you could remind us.

I was going to suggest that you included all the screenshots from people who are complaining about the same problem of having had phantom phones setup in their name. I suddenly realised that this would be a mistake because this then moves away from the substantive issue which is simply that they didn't comply with the SAR.

It would be helpful if you could post up a copy of your court bundle index sheet in PDF format please so that we can get an idea of what you are going to give them – which of course is what you will be relying upon in your case.

[BankFodder]

Thanks.

I would suggest that you send them an email – with a copy to the court informing them that you have now complied with points number one and number two on the court order and that you are preparing to comply with number three.
Do they expect to be able to comply with the order to exchange documents by the court's deadline?

 

I think it will be helpful to you to be a bit pushy and show them that you are being very proactive.

If they reply then that will be interesting. If they don't make any reply then that is something else to show the court that they have been uncooperative whereas you have been sensible about it all.

[BankFodder]

Thank you.

How did you inform the court? Was it my letter? Did you copy virgin in? Did you copy their solicitor – what's her name? The one who signed the statement of truth on a defence which predated the claim.

The fact that they are generic replies – I think is important and that you should bring this to the attention of the court.

When is the next date for something to happen?

[BankFodder]

They are obviously completely in a mess.

I expect that she will contact the court and say that you haven't complied so you need to deal with this urgently.

I think you will to reply back to her and simply saying that she is completely wrong.

That they have received that bundle and that you sent it on XXX date, that it was acknowledged by them and to put it beyond doubt you are enclosing a copy of their acknowledgement.

I think that it may as well be reasonable to point out that clearly they are in a complete mess, they have been in a mess ever since the saga started, that she clearly has no control over the situation and this further inaccurate processing will also be brought to the attention of the court

[BankFodder]

By the way, are you saying that they supplied you with an email address for documents – as required by the court and the email turns out not to accept documents?

[BankFodder]

Sounds good but I still think that it be worth telling Nicola Smith that she's had the documents and she doesn't know what she's talking about.

From what we know about the handling of this case so far, she really doesn't seem to be in control of it at all. I wonder if she's relying on some paralegal and the work is not being properly checked.

I'm sure she's generally good at her job and I suppose that in this particular case she can only be as effective as the information which is supplied to her, but it certainly seems to me that nothing is being checked. When you see that the barrister who drafted the defence doesn't seem to have engaged with the claim at all and nobody at Liberty Global seems to have appreciated that, it really makes you despair about the whole shooting match.

 

[BankFodder]

It is a very specific way of presenting your documents. It needs a full copy of Adobe acrobat. If you search YouTube you will find a good tutorial on how it works.

I'm out at the moment but when I get back I will try to find you a link to the tutorial

 

Have you got a full copy of Adobe acrobat?

 

It's a bit unfair because this is the kind of thing that professional law firms have and litigants in person generally speaking don't have this level of software

 

 

 

 

 

 

 

 

[BankFodder]

 

 

 

[BankFodder]

I'm not too sure of the answer to your question – but I think the most important thing is that it is a well-organised/classified/categorised bundle and fully indexed so that even if it doesn't conform to the standard "professional" way of presenting the documents, that it makes sense very easily even to Nicola and the mob from virgin – but the most important thing is got to be accessible to the judge and also you've got to know your way around it completely so that you can find any document within a matter of seconds and direct other people to by reference to the page number.

One thing that judges hate is somebody not knowing their bundle and fumbling around with – it must be here somewhere, maybe it's there I think I found it – no that's not it blah blah blah.

You need to be able to access anything that is being referred to by anybody lightning quick.

When is the date for submission of this bundle?

[BankFodder]

It sounds as if she is deliberately trying to make life difficult for you.

 

Have you had their documents yet?

[BankFodder]

If you do make this request from the court that then point out that in any event, their defence predates your claim and also doesn't refer to the claim at all and is as if they were dealing with a completely different claim.

You should also point out the court that their lack of cooperation has caused unnecessary inconvenience to you and that you are a litigant in person and that you respectfully ask the court to exercise its discretion towards you litigant in person costs.

It will be worth preparing a spreadsheet of the amount of time and trouble you have taken on this so far. Give it modest but when you consider the research, the learning, the provision of documents the preparation of documents and the filing and serving, I think it will be reasonable for you to say to the court that as a litigant in person you have expended a great deal of time dealing with unknown territory – and you should probably think about claiming for 20 hours.

Have it itemised in a spreadsheet which would company the request of the court. Keep it reasonable and well justified – don't make it look like a money grab but make sure that it looks organised and not greedy.

I think that it will be worth having this spreadsheet – time and costs – prepared anyway and kept up-to-date because it might be reasonable to ask for litigant in person costs anyway seeing as Nicola is making such a pigs ear of this

[BankFodder]

I suggest that you send an email to Virgin and tell them the problem and ask them if they will let you know so how they are proposing to attend the hearing.

 

Also telephone them repeatedly until you get the answer.

 

When you send emails to Virgin copy them to the court

Probably best to send repeated emails to Virgin and put them on notice that you simply don't have the details.

 

Send an email now and send one tomorrow morning early and then maybe 11 and then in the afternoon.

 

What time is the hearing scheduled for

 

 

[BankFodder]

Well I don't have a good feeling about it.

 

I think you need to be making contact with them every half hour both by phone and by email so at the very least if you have to ask for a set aside you have got lots of evidence to show that you tried to reach out to them and the they declined to help you.

 

I think they have a responsibility to give you the information you need to take part in the hearing if you can only get in contact with the.

 

How long ago should you have received this information from the court?

It's certainly a a great shame that the court wasn't contacted at the beginning of the week or even last week to inform them that you didn't have the information you needed

 

 

 

 

[BankFodder]

I suggest that you get all of this done in writing and send it it to Virgin and also to the courts so everybody is clear as to the understanding and how the understanding came about.

 

Always important to have a paper trail of everything.

 

it seems to me that either Virgin is run by the courts or else the courts are run by Virgin although which is which is not clear to me yet.

 

 

 

[BankFodder]

this is all worth storing up as evidence of inaccurate data processing later on

[BankFodder]

Any update on this? This has gone very quiet for a long time now.

Maybe it's worth phoning the court and to find out what's going on. It wouldn't at all surprised me that with the last mistake, the whole file now has been lost or mistakenly filed under "complete".

[BankFodder]

Sorry but I don't understand this at all. I didn't realise that you made an application for assistance with fees. And I had no idea that this was ever raised as an issue before.
What on earth is going on?

Are you able to explain what this is all about?

[BankFodder]

Also, might it be worth starting to phone the court regularly to see what on earth is happening. It certainly seems to me that if they have made an error then it should be pointed out to them in writing so that there is a paper trail.

I'm also wondering whether it's getting time may be to send virgin another SAR even though this present matter is not settled.

[BankFodder]

Well it wouldn't really be repetitive because some considerable time has passed since the last one and apart from anything else there must be more data – but maybe it will be worth simply biding our time on that one.

Maybe it will be worth writing a real letter and sending it for the attention of the district judge in the style of a "polite complaint".

[BankFodder]

Amazing.

Maybe if you fill out this form it will help to get things moving

/assets/images/govuk-opengraph-image.png

Complain about a court or tribunal - GOV.UK

COMPLAIN-ABOUT-A-COURT-OR-TRIBUNAL.FORM.SERVICE.JUSTICE.GOV.UK

 

[BankFodder]

Any update on this? 

[BankFodder]

They are obviously being run by Virgin management

[BankFodder]

Do I understand that virgin told you that your claim had been struck out?