Shell Energy - Failure to disclose data

[BankFodder]

Your version of my proposed draft is rather more polite than mine.

Frankly I prefer mine but  I appreciate that it may not be to your taste .

 

I see that you have not made the point that they claim to be able to defend the claim successfully and yet at the same time they say that they have no knowledge of the contents of the claim.

 

It seems to me that apart from being rather hilarious, this is an essential point to make to them because it demonstrates to them and also to the court. If it goes that far, what a load of charlatans they really are.

 

 

 

[Intrepid]

To clarify, I sent your more forthright verison in response to their email dated 20 April 2023, in which it was written that a full response to their letter dated 18 April 2023 would follow.

The latest draft is almost verbatim the draft you kindly edited in response to the letter dated 18 April 2023, but hasn't yet been sent.

I would be interested to know if anything should be added, now you've had sight of all the correspondence leading up to the claim before I send it. The  main errors I have corrected is in saying they didnt respond, they did, it was just as usual nonsense.

Edited April 21, 2023 by Intrepid

[dx100uk]

reported post reply.

 

upload limit is 4.8mb

 

split things down and post them up.

 

i'll deal from there.

 

dx

[Intrepid]

When I click on choose files and select a file which is smaller than 4.8mb I receive the following pop up alert.

"1 file would exceed the total allowed size of 668.79kB, and was skipped"

I also note at the bottom of the reply box it is written "Max total size: 668.79 kB."

[dx100uk]

i wonder if your overall upload limit is nearly full as a user?

 

i know on Vbulletin software there was an overall upload limit users could have, and we used to have to deleted old uploads.

 

might be the same for invision now, you'd be a prime candidate for an overall limit  with all your threads.

 

dx

[BankFodder]

It would be very much for helpful if you could simply list out the salient points which you have discovered in the documents.

 

If there is that much stuff to upload then we probably wouldn't be able to give the time to get through it all

[Intrepid]

Page 1 and Page 6 of the application notice are attached below.

Page 1 contains the reason for the application,

Page 6 is the attached draft order.

SE - Defendant - Application Notice Pg 1,6 - Redacted-min.pdf

[Intrepid]

After uploading the previous document the max total size has been reduced to 206.85 kB.

 

@dx100uk is correct, a total upload limit has been reached.

 

I am usure if I am unable to delete older uploads, if you are able I would be grateful if you could free up space.

The witness statement contains the draft defence.

I think it is worth reading in its entirety to fully understand their position and the angle they are approaching this with given the history between us.

Now they have filed their application do you think it is still worth replying explicity to their letter dated 18 April 2023?

Edited April 25, 2023 by Intrepid

[Intrepid]

Other than creating a second account in order to provide a fresh upload limit I don't know what to suggest.

[BankFodder]

I will have a look at it later on today and see if I can't clear out some of your earlier files

[BankFodder]

Ok. I found time .

I have cleared out all files for 2020 and 2021 up until April last year.

 

That means there are 12 months of files still there.

Hopefully this will give you enough space. If I have cleared out anything important then you will have to identify and upload it again

 

[Intrepid]

Thank you for taking the time, I had hoped there would be an easier way.

In any case, attached is:

1. Shell Energy's witness statement which contains their draft defence; and
2. A copy of the written judgment following the trial which took place 18 November 2022.

My undestanding is that given Shell Energy moved to immediately submit their application, a response to their letter dated 18 April 2023 is somewhat mute but I'm prepared to send a reply if necessary.

I will draft a response to their application and post it up for review in good time prior to any hearing.

 

SE - Defendant - Witness Statement - Redacted-min.pdf SE - Court - Judgment 18.11.22 - Redacted-min.pdf

[BankFodder]

Please can you start off my going through their draft defence. List out the points they are making and then your response to each one.

Try to keep it simply to a short bullet pointed list

[Intrepid]

I am unsure how to properly present the response to the draft defence, whether it be in the form of a witness statement or "reply to draft defence" in any case I doubt a judge will be too bothered by the semantics.

The draft defence is found at the last 3 pages of the witness statement attached above, is fairly short and contains 7 parapraphs.

My draft response is outlined below.

 

Quote

1.    At paragraph 1 the Defendant avers that it “provided a complete response to the data [sic] Subject Access Request”. A court judgment (“the Judgment”) issued on 18 November 2022 entirely disabused the Defendant of this position.
 

2.    In respect of paragraph 3, the Claimant rejected the Defendant’s offer in response to Claim No. XXXXXXX2 on the basis they were not prepared to accept liability and as referred to above the Defendant was found liable by the Court.
 

3.    In respect of paragraph 4, the Defendant’s arrogant submission that “the Court were given permission to proceed” to trial by the Defendant is misrepresented.
 

3.1.   Instead, the Court acted in accordance with the directions it set out on 13 June 2022 following the Defendant’s failure to appear at trial on 16 May 2022 and without filing proper notice pursuant to CPR 27.9 (1) (a).
 

3.2.   The Court indicated“that in the event the Defendant failed to attend on the next occasion for the same reason, it was likely the court would proceed in absence”.
 

4.    In respect of paragraph 5, the Claimant has been compensated up to the date of 17 November 2021 which is when Claim No. XXXXXXX2 was issued. What hasn’t happened is a disclosure of data by the Defendant to rectify their on-going breach of statutory duty.
 

5.    In respect of paragraph 6, it appears the Defendant’s application was made without reading or giving any consideration to the Judgment issued by the Court which found that the Claimant had suffered distress as a result of the Defendant’s breach of statutory duty.
 

6.    In respect of paragraph 7, the same data is missing from the Defendant’s disclosure in response to the SAR dated 8 January 2022, therefore the Defendant has breached its statutory duty on two separate occasions and continues to do so.

 

Edited April 29, 2023 by Intrepid

[BankFodder]

Generally speaking, you would address each paragraph in turn beginning

 

" Of paragraph. X ... The defendant claims blah blah blah.

The claimants response is that blah blah blah

 

Of paragraph xx ... etc.

"

 

Give it a go and we will have a look but it won't be before monday.

 

We will need to work it out very carefully.

 

Please avoid all the emotive, stuff- arrogant, etc. Keep it factual and deadpan and dignified but make your points count

 

[Intrepid]

I should have been more clear, I am unsure how to title the response.

Lets try this:
 

Quote

1.    At paragraph 2 the Defendant avers it “provided a complete response to the data [sic] Subject Access Request”.
 

1.1.   A County Court Judgment (“the Judgment”) issued on 18 November 2022 found “the Defendant's response dated 26 May 2021 to the Claimant's subject accessrequest dated 28 April 2021 was incomplete” and “The Defendant was therefore in breach of it's [sic]statutory duty”.
 

1.2.   The Defendant was thus entirely disabused of its position, which the Claimant had set out was incorrect as early as 5 August 2021.
 

1.3.   The Defendant avers it has “nothing further to provide to the Claimant. Responses were given on 26 May2021, 05 August 2021 and 05 January 2022.”
 

1.4.   The Court will note the recurring pattern of the Defendant to continually insist it has provided a full disclosure of data but then later provide further missing data over a period of several months.
 

2.    At paragraph 3, it is noteworthy the Defendant still refers to their failure to comply with their data protection obligations as an “alleged breach” following the written Judgment of the Court.
 

2.1.   On 20 January 2022 in respect of the Defendant’s failure to file and serve a Directions Questionnaire the Court issued an unless order providing the Defendant 7 days to comply and in the event of default the Defence would automatically be struck out.
 

2.2.   Claim No. XXXX2 was listed for trial on 16 May 2022.On 15 May 2022 the Claimant received by post an open letter dated 10 May 2022 offering payment made only as a gesture of goodwill and without admission of liability and also a cheque dated 12 May 2022.
 

2.3.   The Claimant and the Judge learnt at trial on 16 May 2022 it was on this basis the Defendant chose not to attend, but it did so without providing proper notice pursuant to CPR 27.9 (1) (a).
 

2.4.   The Claimant rejected the Defendant’s offer on the basis the Defendant was not prepared to accept liability. It was in part on this basis the Court ordered the final hearing be adjourned and relisted.
 

3.    Atparagraph 4, the Defendant’s submission that “the Court were given permission to proceed” to trial on 18 November 2022 by the Defendant is misrepresented.
 

3.1.   The Court acted in accordance with the directions it set out on 13 June 2022 following the Defendant’s failure to attendthe trial of Claim No. XXXX2 on 16 May 2022 and without informing the Claimant or the Court.
 

3.2.   The Courtindicated“that in the event the Defendant failed to attend on the next occasion for the samereason, it was likely the court would proceed in absence”.

4.    At paragraph 5 the Defendant avers the Claim “is therefore an abuse of process as it was a re-running of a claim which the Claimant has already received damages”.
 

4.1.    The Claimant has received damages up to the date of 17 November 2021 in respect of when Claim No. XXXX2 was issued.
 

4.2.    The abuse of process taking place is the fact the Defendant considers it is no longer required to comply with its statutory obligations after having been ordered to pay a very modest sum of money as compensation for its failure to comply.
 

4.3.    On 6 January 2023 the Claimant wrote to the Defendant to this effect, to which the Defendant responded “we will not enter into further correspondence on the content of your previous SAR’s [sic]”.
 

4.4.    It is reasonable to expect that upon being found liable by the Court, the Defendant would take action to review the evidence it received and immediately disclose the missing data.
 

4.5.    The Defendant’s process to respond to a SAR appears to be unfit for purpose. It does not appear the Defendant has reviewed how and where it stores personal data and also how to properly retrieve it.
 

5.       At paragraph 6 the Defendant avers “the Claimant was put to strict proof that he had suffered any "distress" in relation to any alleged breach of Data Protection Act 2018.”
 

5.1.   The Defendant appears to have submitted its application without reading or giving any consideration to the Judgment issued by the Court which found that the Claimant had suffered distress as a result of the Defendant’s breach of statutory duty.
 

6.    In respect of paragraph 7, the same data is missing from the Defendant’s disclosure in response to the SAR dated 8 January 2022. Therefore, the Defendant has breached its statutory duty on two separate occasions and continues to do so.
 

7.    The Defendant has a history of failing to comply with court directions and submitting applications without merit. On 30 January 2023 the Defendant’s application to strike out Claim No. XXX3 and proceed to summary judgment was wholly dismissed.

 

Edited April 29, 2023 by Intrepid

[BankFodder]

I think we can stop all the avering and disabusing stuff..

 

Let's start off by talking normally and not pretending that we are a bunch of strutting lawyers.

Leave that to the other side

 

[Intrepid]

Another go:

There are some minor formatting issues which occur as a result of copy and pasting the draft into the reply box. The issues do not appear in the original and the text can still be meaningfully read so in the interst of time I've left it as is.

 

Quote

Background

1.         For the ease of the Court, I have set out the course of Claim No. XXX2.

2.         On 16 November 2021 Claim No. XXX2 was issued.

3.         On 20 January 2022 the Court issued an Order that Shell Energy’s Defence to Claim No. XXX2 would be struck out if it failed to submit a directions questionnaire within 7 days.

4.         On 8 March 2022 Claim No. XXX2 was listed for trial on 16 May 2022.

5.         On 15 May 2022 the Claimant received by post an open offer of payment as a gesture of good will and without admission of liability and a cheque.

6.         On 16 May 2022 the Claimant and the Judge learned at the start of the final hearing it was on this basis that the Defendant did not attend. The Defendant had failed to properly notify the Court and the Claimant of their non-attendance.

7.         On 16 May 2022 the Judge adjourned the trial partly on the basis the Claimant was not willing to accept the offer to settle on a no liability basis.

8.         On 18 November 2022 the trial of Claim No. XXX2 took place where the Court found the Defendant liable for breach of its statutory duty and ordered the Defendant to pay compensation.

 

The Defence

9.         At paragraph 2 the Defendant says it “provided a complete response to the data [sic] Subject Access Request”.

9.1.        ACounty Court Judgment (“the Judgment”) issued on 18 November 2022 found “the Defendant's response dated 26 May 2021 to the Claimant's subject access request dated 28 April 2021 was incomplete” and “The Defendant was therefore in breach of it's[sic] statutory duty”.

9.2.        The Defendant says it has “nothing further to provide to the Claimant. Responses were given on 26 May 2021, 05 August 2021 and 05 January 2022.”

9.3.        The Court will note the recurring pattern of the Defendant to continually insist it has provided a full disclosure of data but then later provide further missing data over a period of several months.

10.   At paragraph 3,the Defendant says the SAR dated 28 April 2021 “was the subject of proceedings issued in the CountyCourt Business Centre under Claim No. XXX2 in which the Claimantclaimed distress for the same alleged breach.”

10.1.    The subject of proceedings in Claim No. XXX2 was the Defendant’s breach of statutory duty in response to the SAR and the distress it caused the Claimant up to the issue date of the claim on 16 November 2021.

10.2.    It is noteworthy given the written Judgment by the Court that the Defendant still refers to their on-going failure to comply with their data protection obligations as an “alleged breach”.

10.3.    The Defendant says it “sent a cheque for the full sum claimed[Claim No. XXX2] to the Claimant which he returned as he wished to proceed to Court.” The Claimant rejected the Defendant’s offer on the basis the Defendant was not prepared to accept liability. It was in part on this basis the Court ordered the final hearing be adjourned.

11.     Atparagraph 4, the Defendant’s submission that “the Court were given permission to proceed” to trial on 18 November 2022by the Defendant is misrepresented.

11.1.    The Court acted in accordance with the directions it set out on 13 June 2022following the Defendant’s failure to attendthe trial of Claim No. XXX2on 16 May 2022 and without proper notice pursuant to CPR 27.9(1)(a).

11.2.    The Courtindicated“that in the event the Defendant failed to attend on the next occasion for the samereason, it was likely the court would proceed in absence”.

12.     At paragraph 5 the Defendant says the Claim “is therefore an abuse of process as it was a re-running of a claim which the Claimant has already received damages”.

12.1.    The Claimant has received damages for the distress caused by the Defendant’s breach of statutory dutyup to the date of 16 November 2021 in respect of when Claim No. XXX2 was issued.

12.2.    To date the Claimant has not received a full disclosure of personal data in response to their SARs dated 28 April 2021 and 8 January 2022.

12.3.    The abuse of process taking place is the fact the Defendant considers it is no longer required to comply with its statutory obligations after having been ordered to pay a very modest sum of money as compensation for its failure to comply.

12.4.    On 6 January 2023 the Claimant wrote to the Defendant to this effect, to which the Defendant responded “we will not enter into further correspondence on the content of your previous SAR’s[sic]”.

12.5.    It is reasonable to expect that upon being found liable by the Court, the Defendant would take action to review the evidence it received and immediately disclose the missing data.

12.6.    Following the Judgment, it does not appear the Defendant has reviewed how and where it stores personal data and also how to properly retrieve it.

13.     At paragraph 6 the Defendantsays “the Claimant was put to strict proof that he had suffered any "distress" in relation to any alleged breach of Data Protection Act 2018.”.

13.1.    On 18 November 2022 the Court found that the Claimant had suffered distress as a result of the Defendant’s breach of statutory duty. Distress which is on-going.

14.     In respect of paragraph 7, the same data is missing from the Defendant’s disclosure in response to the SAR dated 8 January 2022. Therefore, the Defendant has breached its statutory duty on two separate occasions and continues to do so.

15. The Defendant has a history of failing to comply with court directions and submitting applications without merit. On 30 January 2023 the Defendant’s application to strike out Claim No. XXX3 and proceed to summary judgment was wholly dismissed.

 

[BankFodder]

Please can you count up how many documents – letters or court documents that they claim not to have received.

Please can you list them out in a bullet pointed chronological order and point out whether it is apparently not received or simply not responded

[Intrepid]

Within the witness statement they claim not to have received 2 claim forms.

A full history:
 

SARC1
No response to letter before claim 05/08/21
No acknowledgement or defence filed in response to claim issued 24/08/21 - (they say claim form not seen)
Failed to properly respond to warrant resulting in CCJ recorded on or around 15/10/22
 

SARC2
No response to letter before claim 01/11/21
Failed to file and serve DQ by 30/12/21
Failed to file and serve notice of non-attendance pursuant to CPR 27.9(1)(a) by 09/05/22
 

SARC3
No acknowledgement or defence filed in response to claim issued 20/02/23 - (they say claim form not received)
 

IDP1
No response to letter before claim 09/03/21
Failed to file and serve DQ by 16/05/22

[BankFodder]

Thank you but I did ask you to list out in bullet pointed fashion.

You will need it in this form.

 

Date - document - not received/ received/ not responded.

 

 

 

In a tabulated fashion

[Intrepid]

05/08/21 - Letter before claim                                - No response

24/08/21 - Claim form                                              - Not received

01/11/21 - Letter before claim                                - No response

13/12/21 - Notice of proposed allocation & DQ   - No response

09/03/22 - Letter before claim                                - No response

27/04/22 - Notice of proposed allocation & DQ   - No response

20/02/23 - Claim form                                              - Not recieved

[BankFodder]

Thank you. That is very helpful .

Now could you list all the documents or letters which they have apparently received on time

 

[BankFodder]

By the way, when must your responses be ready by? How long have we got to prepare them?

[Intrepid]

28/04/21 - SAR                                                           - Received

21/07/21 - Letter Before Claim                               - Received

16/11/21 - Claim Form                                             - Received

16/11/21 - Claim Form                                             - Received

13/12/21 - Notice of Proposed Allocation & DQ - Received

08/01/22 - SAR                                                           - Received

20/01/22 - Court order                                             - Received

08/03/22 - Notice of Trial Date                               - Received

25/03/22 - Claim Form                                             - Received

10/04/22 - Notice of Preliminary Hearing             - Received

13/06/22 - Notice of Trial Date                               - Received

27/06/22 - Court order                                             - Received

29/06/22 - Notice of Adjourned Hearing               - Received

30/08/22 - Notice of Allocation                               - Received

21/11/22 - Notice of Pre-Trial Review                   - Received

24/12/22 - Letter Before Claim                               - Received

06/01/23 - Letter                                                        - Received

16/01/23 - Letter Before Claim                               - Received

20/02/23 - Claim Form                                             - Received

20/04/23 - Letter                                                        - Received

05/08/21 - Letter before claim                                - No response

24/08/21 - Claim form                                              - Not received

01/11/21 - Letter before claim                                - No response

13/12/21 - Notice of proposed allocation & DQ   - No response

09/03/22 - Letter before claim                                 - No response

27/04/22 - Notice of proposed allocation & DQ   - No response

18/11/22 - Court Judgment                                     - Not received

20/02/23 - Claim form                                              - Not received

Hearing 2 June 2023, I'm unsure as to exactly when a response is due.

The court has issued directions for providing contact details for the telephone hearing by 4 pm 26 May 2023.

 

So I think it is safe to assume any written response is also due within that time frame.

 

Edited May 7, 2023 by Intrepid