Shell Energy - Failure to disclose data

[Intrepid]

I have put together a draft response to their application attached below.

 

I am unsure whether to expand this to a witness statement with exhibits but am also mindful that the application should not be a mini trial.

DRAFT 1.0 - SE - Claimant - Response to Application - Redacted.pdf

[BankFodder]

I should manage to get a look at this tomorrow

[BankFodder]

Okay, it's a good start but it is still rather confusing.

I'm not sure that the court wants to hear you rehearse the entire sequence of events. If you do include that part then it should come later on.

I think you should begin with a summary of the defence – very briefly which is that they claim not to have received the papers or at least have been unaware of the claim
and in any event they claim that they would have a reasonable chance of success if they were permitted to defend.

The first argument I think is properly destroyed by the fact that they have a history of claiming not to have received documentation which not only has been sent directly by you but which also has been sent by the court so there can be no mistake that the various documents were properly sent. Therefore it's a question of their own systems which have failed to process the relevant papers correctly. That can be the only explanation and so therefore it is up to the discretion of the judge whether or not to say that they are liable for the failure of their own procedures or whether they should be taken as being unaware of the claim against them.
I think it should be pointed out that the judge that this is an extremely large and well resourced company with access to excellent data protection staff development and to legal support when necessary.
I would be tempted to ask the court that if the court considers that there is a? As to whether they have received the relative documents, that they should be required to produce their staff development programme in respect of handling data protection requests as part of the court bundle. I think that the defendants should also be required to identify which of their personnel were responsible for handling the various claim documents and that maybe those people should be required to attend court to explain how come they are the failed to know of the documents or else they failed to process them correctly.
You can be certain that your defendants won't like that Although I doubt whether the court would order it but it might be fun to ask.
Then the second point is to deal with their draft defence and in particular what they say about their chances for success if they were permitted to defend.
I have to read that more but you have scarcely referred to it in your witness statement. You have simply made a very broad comment that they would be unlikely to succeed but you haven't explained why. You must do that. It is actually more essential then the question of whether they have received the papers or not.
If the judge felt that they had a good defence then that judge would be quite likely to decide to overlook any? As to whether the papers had been received because at the end of the day the judge is bound by the overriding objective which requires the court to reach a just decision and I would say that a reasonable defence will take priority over failure to receive or to process the court papers.

That for starters

[BankFodder]

Also, somewhere in the data protection act or maybe in ICO guidance, it makes it clear that one of the grounds for declining to comply with a subject access request is that the SAR is repetitive of previous requests.

At no point so far as I can see, have the defendants availed themselves of this justification for failing to make a statutory disclosure.

Please do a little bit of research to find out exactly where that justification/exemption is and then you should use it in your witness statement because they make a song and dance that you have made repetitive SARs and they have simply given way to the actions that you have bought because it was uneconomical – but in fact there are now complaining that you have made repetitive requests that they could easily have dealt with the matter by giving you a refusal to comply on the basis that they were repetitive requests.

 

[Intrepid]

Thank you.

 

Unfortunately Shell Energy's Witness Statement and Draft Defence deals with a lot of irrelevant material which I think has largely been a distraction for myself and will be to the Court, however in my experience it is best not to leave things unresponded to.

 

In any case I have restructured the response to comprise a full witness statement complete with exhibits that better address the points you have highlighted.

I have moved the Reply to Draft Defence to the end of the document under a separate exhibit so as hopefully not to distract the Court from the two core issues in dispute, namely whether the claim form was received and their prospect of success in defending the claim.

If the PDF is too much I can simply post up the Witness Statement and Reply to Draft Defence for review under two separate quotes.

Edit: I did note their paragraph concerning repetative requests. The problem is their application in my view is poory structured. A lot of waffle in the Witness Statement is really points that belong in their Draft Defence, this has made responding to both their WS and Draft Defence somewhat messy.

I will either incorporate it as you suggest in a later draft or I could simply address it on the day. I cant imagine the Court will entertain for a moment that two SARs over a period of 2 years is in any way excessive.

CAG - Binder1 - Redacted-min.pdf

Edited May 10, 2023 by Intrepid

[Andyorch]

Manifestly unfounded and excessive requests

ICO.ORG.UK

---

This Guide to Law Enforcement Processing highlights the key requirements of Part 3 of the Data Protection Bill.

 

[BankFodder]

Okay, your document is hugely better than it was. Much better organised and in a much more succinct and understandable form.

Methodically presented.

I have only dealt with the first four pages. I haven't looked at the attachments – but I have made some suggested edits.

Let me know if they all make sense and whether you want to use them. If anything is wrong – or if anything is missing or if you want to add anything on top.

You will see that I have suggested some extra subheadings. Subheadings are very important because don't forget that these judges are reading a lot of material from different cases and it is very helpful to encapsulates each particular part of your statement under subheadings so that the judge knows exactly what he is meant to be reading and where the beginning is and what the end is

first four pages modified.pdf

[Intrepid]

Latest draft attached below, edits are in green. To keep the PDF small I have uploaded only the witness statement.

I have amended the list of documents so that it relates to documents sent by post only, partly so not to confuse the issue and given the substantial correspondence that has taken place via email.

ACCOUNT PASSED TO COLLECTIONS

On a side note I withheld the sum owed to me by Shell Energy when paying my bill this month.

Shell Energy have responded by "passing" my account to Zinc Credit Management.

Shell Energy have been trashing my credit file for a period over almost two years on the basis that I have not kept up with payments on what in my understanding is supposed to be an agreed payment plan.

Of course there was no agreed payment plan. Shell Energy never responded to my email detailing how I proposed to pay my account until they sorted out their inacurate billing. Shell Energy's inaccurate data processing is currently the subject of separate litigation.

Zinc Credit Management have offered to set up an affordable payment plan. I have no intention of corresponding with Zinc but I will keep their email as evidence that no payment plan has been agreed between myself and Shell Energy.

HARASSMENT

Prior to passing my account to Zinc, Shell Energy again began sending automated unblockable text messages to my mobile phone.

 

I have submitted two claims against Shell Energy claiming compensation for harassment. The first was settled out of court, the second is currently meandering its way through the new online beta system.

 

Of note is that this time instead of continuing their barrage of messages unabaited Shell Energy stopped sending their messages after two instances. This could be a coincidence or it could be a sign the message is starting to get through that their conduct is unreasonable and will likely lead to an additional court claim.

I wrote to Shell Energy regarding the account balance and of course I did not receive a response.
 

DRAFT 1.3 - SE - Claimant - Witness Statement XX.05.23 - Redacted.pdf

[BankFodder]

A couple of further edits. Nothing massively important

DRAFT 1.3 - SE - Claimant - Witness Statement XX.05.23 - Redacted.pdf

[Intrepid]

@BankFodder I filed and served my statement with exhibits 8 days before the hearing, I did this on the understanding that evidence to be relied upon at a hearing should be filed at least 7 days before the hearing.

I now realise this may have been a mistake as the provision under CPR 24.5 is in reference to Summary Judgment only, perhaps @Andyorch knows otherwise and whether I can legitimately request their latest statement is dismissed.

Anyway their counsel have filed a last minute ambush prior to the hearing attached below.

I have attached only their statement, exhibits can be shown if necessary.

SE - Defendant - Note for Hearing 30.05.23 - Redacted.pdf

Edited May 31, 2023 by Intrepid

[Andyorch]

Quote

I now realise this may have been a mistake as the provision under CPR 24.5 is in reference to Summary Judgment only, perhaps @Andyorch knows otherwise and whether I can legitimately request their latest statement is dismissed.

Im not up to speed on your topic intrepid...this is with regards to an application to set a side your default judgment? ...what date was the application made and did they attach any evidence to the application and what date is the hearing ?

[Intrepid]

Draft 1.2 attached below.

@BankFodder any comments to make? I'm aware there is some repetition but I'd rather that than miss any important points.

It is still not clear to me whether it is ok to introduce evidence this late. I suppose bundles are normaly lodged 2 days before a hearing and should be agreed. I could object to their submissions but the likelihood is the court will allow any relevant documents which in this case aren't all that significant.

There is likely to be an argument over costs.

I will say in any case the claim is clearly suitable for allocation to the small claims track where costs are limited and the application was made as result of D's failure to process its own mail and properly respond to the claim.

 

DRAFT 1.2 - SE - Claimant - Note for Hearing - Redacted-min.pdf

Edited June 1, 2023 by Intrepid

[Intrepid]

Draft 1.3 attached below.

My previous posts had to be removed.

In answer to your question again Andy.

Application made 21/04/23 which contained a WS accompanied by exhibits.

Hearing 02/06/23

I'm not sure if I will be able to question opposing counsel but I think the questions I have prepared are relevant and will hopefully hammer home my points to the judge.

DRAFT 1.3 - SE - Claimant - Note for Hearing - Redacted-min.pdf

[Intrepid]

On point 1 the judge considered on the balance of probabilities the claim form was received.

On point 2 the judge considered there was an issue to be decided at trial.

The judge did not have a copy of my witness statement before them, as to why I don't know.

The claim will be transferred to my local court and potentially consolidated with the other on-going claims.

The judge made an interesting comment as to whether the claims may amount to an abuse of process or whether they are made in response to Shell Energy's intransigent position (on the issues between us).

Defence due latest 14 June 2023.

Costs reserved.

Edited June 2, 2023 by Intrepid

[Intrepid]

On 18 July 2023 I sent Shell Energy Retail Limited (SERL) a SAR.

On 27 July 2023 I received the following email from SERL.
 

Quote

Hello Mr XXXX,

We hope you are doing well.

Thank you for taking time to get in touch with us.

We tried calling you today but unfortunately could not reach you.

In order to process your SAR request we would like to ask you a few more questions so we can have all the information.

Email address SAR will be sent too (if no email please confirm address)?
Have you ever worked for SERL in any capacity?
If so, would you like this information to be included as part of your SAR?
Telephone number(s)?
Current Mobile Number?
Alternative formats required?

May we kindly ask you to reply to this email as soon as possible with the answers so
we can start the process?

Your patience is appreciated.

We’re here to help

If you have any more questions, do take a look at our online Help Centre. There's lots
of useful information to answer your queries, from managing your account to
understanding your bill and more. All without having to contact us. You can find all our
articles on our website, under Help.

Thanks,

The Shell Energy Team

I have prepared a response, @BankFodder if you are interested in helping form a response they I look forward to any comments you have, otherwise I will send the following shortly.
 

Quote

Dear Sir/Madam.

I write in reference to your email of 26 June 2023 which raises a number of concerns.

Does Shell Energy Retail Limited have a policy of not responding to a SAR if it does not receive a response to the queries outlined in your email.

It appears from your email that you will not action the request unless you receive a response to your queries, this is obstructive for the following reasons:

1.       I would expect that a well-resourced company with proper records would easily be able to check whether I have previously acted as an employee;

2.       It would be clear to anyone actioning the request if they had checked the name, address and account reference in the SAR you received that I hold a customer account with Shell Energy Retail Limited;

3.       It appears you already have access to the information you have requested given that you claim to have called me as well as written to my email address.

The information you seek was included within the SAR you received and where it is not included it does not prevent in any way the actioning of my SAR.

Instead your email appears to be a formality designed to obstruct me from accessing my personal data. You state, you won't “start the process” of responding to my SAR unless I answer your questions.

As I have outlined above with minimal effort from either you or your agents the information you seek is either within your knowledge or unnecessary and appears instead to be designed to unreasonably delay any meaningful response to my request.

Why don't you simply get on with it and respond to my request in full within the 1 month timeline in accordance with your statutory duty?

If you decide to withhold access to my personal data, then I remind you that pursuant to the UK GDPR you must explain why you have not actioned my request and I expect that you will refer me to all the relevant exemptions upon which you rely.

I am unsure why your email is signed off on behalf of “The Shell Energy Team”, why doesn’t the person contacting me simply write their name. Do they have something to hide?

Yours faithfully,

 

[BankFodder]

I'm afraid I don't think I would send a letter like that which is basically challenging and for no particular purpose.

I would simply send a response saying that you want all data regardless of the subject and regardless of perform it is in and regardless of the date.

You can point out that this is what you are entitled to under the data protection act and the time is already running

 

[Intrepid]

Thank you for the suggestion.

In my view these questions are simply designed as a holding pattern. Companies use it as a way to do nothing on the guise they are awaiting a response. In my view it is obstructive and does not prevent in any way their ability to respond to a SAR at least within the capicity outlined within the request.

How about:
 

Quote

Dear Sir/Madam,

I write in reference to your email of 26 June 2023.

In accordance with the SAR you received and pursuant to the Data Protection Act 2018, I want copies of all data you hold me regardless of the subject, regardless of the format it is in and regardless of the date.

I look forward to receving this within the statutory one month timeline on or before 18 August 2023.

Yours faithfully,

 

[Intrepid]

On 31 July 2023 SERL provided a partial disclosure of data which upon review is incomplete.

On 11 August 2023 I sent the following to SERL:
 

Quote

Dear Sir/Madam,

On 18 July 2023 Shell Energy Retail Limited received my Subject Access Request.

On 31 July 2023 you provided a partial disclosure of data which upon review is incomplete.

As a data controller your organisation has a statutory duty to disclose information relating to data that has been withheld and upon what basis.

I look forward to receiving a full response on or before 18 August 2023.

Yours faithfully,

On 15 August 2023 SERL reponded:
 

Quote

Hope this email finds you well.

Thank you for making us aware of this , we will raise this with our back office team and confirm that we need to send the information your are requiring could you kindly elaborate on which information is incomplete from the 31st July 2023.

I am not interested in playing their game of cat and mouse where they withhold my data but do not explain the basis of why they have withheld it.

I propose the following response:
 

Quote

Dear Sir/Madam,

I write in reference to your email of 15 August 2023 and partial disclosure of data provided on 31 July 2023.

As a registered data controller your organisation has a statutory duty to diclose information relating to data that has been withheld and upon what basis.

Can you please explain why the disclosure you have provided is incomplete but you have not explained what data you have withheld and on what basis?

Yours faithfully,

 

 

[Intrepid]

I have sent the above with the following included.
 

Quote

As a result of your organisation's failure to provide a full response to my SAR within the one month statutory timeline by 18 August 2023 I have submitted a complaint to the Information Comissioner's Office.