Shell Energy - Failure to disclose data

[BankFodder]

Please can we see your letter of claim in PDF format.

What's the story here? Why are you asking for this data?

[BankFodder]

Okay. Looks very good.

How much are you proposing to sue them for? You don't want it to look like a money grab. The whole purpose of the litigation I assume is to get them to sit up and take notice.

Have you got any examples of any correspondence or other information already in your possession which they haven't supplied to you?

That would be very useful evidence of the fact that they haven't given you a complete disclosure.

[BankFodder]

I agree that £600 is a nice figure, but you won't get it.

It will compromise your claim and it is the kind of money that may push them to actually go to court for hearing and although you will win on the issue of the breach, you are most likely to fail on the question of quantum.

It is most likely that if it comes to hearing that a judge will consider that you are simply making a money grab and reward you a lot less to the extent that not only will you be penalised in terms of not being able to recover all your costs of litigation but the judge might even consider that you have litigated unreasonably and apply their exceptional discretion to award the losing side's costs against you.

Although we would be talking about statutory breach here and so exercise of cost discretion would, in my view, not be appropriate – I think the judge will be very unhappy to find that you were claiming such a large figure.

Don't forget you are dealing with a major corporation here. If it was some dodgy car dealer then a judgement for £600 would be very useful because you could put the sheriffs in. With Shell Energy there won't be any problem. They will pay out without blinking.

I suggest that you scale it down to about £100 max.

 

I would suggest that you are much better off claiming for this realistic figure because the end of the day your objective is to get the data. Once you got the data whether you had to get a judgement for it or whether they simply woke up and provided you what you wanted plus a payment in order to get you to withdraw the case, you could then examine the data. If it turned out that you are right then you have a basis for inaccurate data processing and that would be a good basis for bringing another legal action against them – once again for distress – and on this occasion you could sue for a higher sum.

 

[BankFodder]

We've crossposted but you will notice that earlier on I asked you for the story and you gave us what I believed was the story.

Now you are telling us that in fact there was a complaint to the ombudsman which was upheld in your favour.

I don't think you need to make it such hard work for us. Why don't you simply tell us the story beginning at A and finishing at Z. In a brief chronological order

[BankFodder]

Thanks. Obviously that is a very interesting a very useful story.

All of this points to inaccurate data processing which is a separate issue and you should litigate separately.

If I were you I would hold fire on that completely until you have sorted out the data disclosure problem. I should sue only for a modest amount – maximum £100 – for the distress caused by incomplete data disclosure.

Then when you have got the data and you have the full story in respect of the problems they have caused, then sue them for inaccurate data processing and I think that there is a good basis for a substantial amount of damages for distress – certainly more than £600 and maybe a thousand.

We will know more when we find out the complete story.

Careful preparation on these things is extremely important because when you finally launch your attack, they need to be completely unprepared for it and also to have no answer.

The onlhy thing they will try to argue will be quantum.

Let's see your particulars of claim before you send it out

 

[BankFodder]

Can you tell us what the "serious issues" are please.

[BankFodder]

The claim you are bringing here is for failure to disclose in response to an SAR.

The objective is eventually to obtain the data and then to show that the data is inaccurate and then begin another claim – probably a more serious claim for inaccurate processing.

Until you have the disclosure of the data, you're not able to demonstrate inaccurate processing and in any event, if you make a claim now for compensation which includes compensation for "mismanagement" – which you haven't established yet, then if later on you bring an action for inaccurate processing, they may be able to argue that you have already recovered compensation for the distress caused by it.

I think that you should have a less detailed particulars of claim and I am about to make an edit to your suggested particulars above.

[BankFodder]

Also, I think that your claim for £200 is excessive at this point. The objective here is to get them to focus and to obtain your data. These people are stupid and if they see a claim for £200 then they are more likely to decide to spend whatever it takes – far more than £200 – simply to beat you. Although you will win on the substantive issue, you could easily find that a judge will reduce the damages you are seeking maybe even two £50 or less.

I would suggest a figure of not more than £100 – and maybe £75 – would prompt them in the end to produce your data and to settle the litigation. Of course it might not – and they might decide to go to court but they are less likely to do so.

After that, if you do obtain information which demonstrates inaccurate processing then you can certainly go for a very much larger claim.

[BankFodder]

Well you're wrong because you've already pointed out that the data breach is continuing. Therefore, they may settle the claim but the breach continues so it is open you to bring another claim – and another one et cetera.

And of course if the breach is continuing, then it is entirely reasonable for you to decline the settlement and to continue to court to seek a judgement. The beauty of this is that it falls short of a part eight application but it does the same job for you.

You can only claim for the damages that you have suffered in respect of the claim. At the moment you are claiming for a failure to disclose and yet the damages you are attempting to claim are for a far wider issue. This is simply not possible.

You have to do things one step at a time. And once again, if you did get a larger sum in damages, it would leave yourself open to their suggestion that you had already been compensated for inaccurate data processing.

 

[BankFodder]

I'm afraid the ombudsman services never provide a satisfactory disclosure and it is difficult to do anything about it.   

we need to concentrate on shell

[BankFodder]

They have a statutory duty to make a complete disclosure. You should not keep on having to ask them.

 

On the other hand you need to be sure that they won't be able to prove at some point that they have made a full disclosure.

 

You could warn them that once you secure judgement against them that they will have a further statutory duty to inform the information commissioner of the data protection breach

 

 

[BankFodder]

Ok. Make sure that you don't disclose what data you have in your possession that they have not disclosed.

Make sure that you don't give them any clue as to what particular data you think is missing.

 

[BankFodder]

Although on one hand it might be said that you had a responsibility to help them resolve the problem, we are talking here about a statutory breach.

 

As soon as the deadline has expired and the disclosure has not been completely made than they are in breach.

End of story.

[BankFodder]

Thanks for the update.

I think you are right to be cautious about accepting the award. Is there a deadline for it?

I'm going to read over the thread to get myself back into the loop

[BankFodder]

please can you post up this most recent ombudsman's decision in PDF format.

I certainly think that you shouldn't accept the award made by the ombudsman but on the other hand I don't think you should be too quick to reject it. Is there a deadline for it? In a way it doesn't really matter whether you reject it by the deadline because if you simply remain silent then it is taken to have been a rejection.

However when is the deadline? I see that you have issued a claim on about 26 August. Has there been any response or reaction from Shell?

[BankFodder]

The ombudsman's deadline of 14 days gives you ample time to see whether or not Shell file an acknowledgement of the claim and then allow themselves a further 14 days before a defence. Of course they may be totally at sea and they may not file any response at all.

A court claim for nondisclosure or a subsequent court claim for inaccurate data processing is a far more serious matter than a simple ombudsman's decision and so I would certainly recommend that you go for the court process and decline the ombudsman's decision. However, as indicated, I would certainly wait until the 14 days since the issue of your claim before doing anything. Frankly if you are going to decline then I wouldn't even bother to reply.

It may be that Shell are waiting to see what your response is to the ombudsman before they file their response to your claim. Best to keep them completely in the dark.

Best to bide your time. Monitor the County Court web service and if it allows you to apply for judgement at the end of 14 days – +2 days for service – then enter judgement immediately. Don't hang around – and then put the bailiffs in.
Then at the same time I would send another letter of claim in respect of their continuing failure to disclose and prepare to issue another claim.

You might like to read up on a claim that we have got going against virgin for breach of SAR disclosure rules

 

We can start playing the same game and see what point they wake up.
 

lots of fun to be had if they don't file an acknowledgement or a defence.

 

 

[BankFodder]

Also I'm starting to read the ombudsman's decision.
I'll make comments on this post and update it as I go through.

However I see that the first requirement of the ombudsman is that they should cancel the bill issued to you on your account and input the meter reading of 1080 on the 21 November 2020.

 

Be aware that we are nearly at November 21 and so any bill which is given will be subject to back billing rules and they will not be able to recover any charges from you the which are older than 12 months - from the date that they issue you with a correct bill.

 

 

 

 

I see that in issue four, the ombudsman refers to the amount of energy that has been attributed to you to be equivalent to the energy normally used by 21 homes per year. Presumably that is a point which you made to them. It's very nice – and very funny.

 

I see that the ombudsman is referring to 18 complaints made by you! A phenomenal number.

How many of these were made against Shell? If all of these complaints can be supported by evidence then we have a very substantial case for inaccurate data processing here.

Of course they are under contract to get things right but the problem is that damages in contract are awarded on the basis of your actual loss which probably may not be very much when it's all sorted out. You are looking for an additional award.

Bringing a claim under the data protection act allows you to seek damages for distress and distress damages can be measured partly by reference to actual losses but also can be measured by what kind of distress a reasonable person would suffer in the circumstances.

 

I see the on page 4 of the ombudsman's report that there is a reference to background context. If there is some context which has been documented in Shell's records and which has not been disclosed to you then this is certainly good evidence of incomplete disclosure

 

The ombudsman's report is clearly excellent evidence of a substantial amount of inaccurate data processing – and that's even without the full disclosure that you are looking for.

I certainly don't think there's any point in accepting these awards that I do think that it's worth biding your time and seeing how it plays out in respect of the claim is issued and the eventual disclosure.

At some point we will have to ask you to list out all of the losses or detriment that you have suffered over the period of time including the effect of it all on you or your family and then we can eventually start discussing the basis of a claim for inaccurate data processing and a reasonable amount of compensation. We haven't really understood what detriment you have suffered but at the moment I'm sure that £600 is an easy figure that there is still a lot more to learn about it all.

You obviously made a very competent complaint to the ombudsman.

[BankFodder]

Okay. Could we see your letter of claim out of curiosity?
How much are you proposing to claim from them?
 

[BankFodder]

Thank you. We shall follow this with interest. It's the first time in the 16 years of this forum that somebody has started a claim against ombudsman – well done.

I do think that a properly couched letter of claim should have been rather clearer about the deadline and the consequences – but I suppose it will do.

[BankFodder]

Do nothing but apply for judgement at the first available opportunity and then instruct bailiffs immediately

We will suggest what to do once we know what their reaction is to the enforcement.

 

[BankFodder]

I suggested some edits above. Also I think £150 too much. I think a judge would really consider that you are making a money grab and this could discredit your whole position.

You should realise that although most companies will try to put their hands up, the ombudsman is most unlikely to and they will consider that they really have to make an example and show that they won't be subject to these kinds of demands and these kinds of court actions.

[BankFodder]

Well done.

Instruct county court bailiffs as soon as you possibly can – then standby for the fun!

[BankFodder]

In respect of the ombudsman's actions, monitor the money claim website and see if it will allow you to apply for judgement today or in the next few days.

The letter doesn't amount to a defence.

I'm not sure what you're asking about in respect of the warrant. Except that if you have received something on account or something then you would go for the net amount. If you receive nothing then the net amount is the amount of the claim – plus claim fees et cetera.

I didn't know that the issue fee was now £83. I thought that it was about £60 – but anyway, you'll get that back assuming that it is enforced and there is no successful appeal.
This kind of people will normally simply pay out.

I don't understand what you mean in terms of what happens if you receive some form of payment

[BankFodder]

Actually there wouldn't be an appeal. There would be an application to set aside the judgement. You could counter that or at least ask for costs.

Normally speaking if the set as I was granted then the question of costs would be decided once a judgement was eventually given. In other words if you want then you get all your costs. If you lost then you would lose your costs including this enforcement fee

[BankFodder]

There is very little point in resisting an application for set-aside. They are almost always granted.

The best thing to do would be to consent to the set-aside on condition that your enforcement costs thrown away are awarded to you in any event.

This would show that you are reasonable and cooperative which would be appreciated by the court. Send a message to Shell that you are in control and it wouldn't unnecessarily hand them a victory – and also hopefully you would recover your enforcement costs.