Witness Statement, Court bundle for DPA/PECR claim

[DPAManiac]

(Please let me know if this needs to go onto another subforum)

I have made a County Court claim via MCOL against a large company (no names here for anonymity's sake) for breaching the Data Protection Act 1998 (DPA) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (also called PECR). In short, they sent me unsolicited marketing when I put an item in the basket on their website, entered my details but then abandoned the order. They sent me several texts, emails and so on - I had never opted into this, and had specifically 'opted out' when asked during the basket checkout process.

I sent them initial informal letters asking for settlement, then when they didn't offer me anything I sent them a Letter Before Action. They still didn't offer anything so I went through with my threat and took out the MCOL claim. Many months later, having sent them detailed POC, them sending a Defence, failed Mediation due to their incompetence, and completed DQs from both sides, I've finally received the Small Claims allocation letter from my local Court. The hearing is set for April and so I need to get in my Witness Statement just after the start of March.

I've been fine along till now, having read the various legislation online and stories/blogs of others who have also gone along this path (with most companies settling, and those that don't usually losing at Court). However, I'm somewhat unsure of what I should include in my Witness Statement and what I need to include in the Court bundle, and I haven't seen many guides anywhere. I can't afford the assistance of a solicitor for any length of time, unfortunately.

So my question to the experts on this forum is - what should I include in a WS in a case like this, and what do I need in the Court bundle? I would prefer not to upload copies of the POC, Defence etc. as they will be highly identifying and unique, but am more than happy to paraphrase. In essence, my case rests on them having breached Reg. 22 of the PECR in sending the unsolicited spam, and also thereby several of the DPA Principles, relating to unlawful, unfair, incompatible etc. processing of data, and not taking adequate technical measures to prevent this. The cases of Vidal-Hall v Google and Halliday v Creation are in my POC, as they clearly set out that a) material loss does not need usually to be proven, and if it does, de minimis is acceptable (and clearly present here), and b) compensation is due purely for the fact of breach of 'important consumer legislation' quoting the judgment in the Halliday case.

Their defence is mainly that, apparently, they claim I did opt in to marketing, and even if I didn't, I haven't suffered a loss of £750 (what I'm claiming). My response to that is - even if I had opted in (they provide no proof I have, I have proof I opted out), the wording on their site is far from sufficient to be DPA-compliant consent, and Vidal-Hall and Halliday make clear that loss isn't necessary.

Thank you for any advice anyone can provide! I really didn't think they would hold out this long, they've been very incompetent and unfriendly all the way (including assigning me a 'point of contact' who is never reachable, always 'on holiday', 'in a meeting ' etc.), so I want to 'punish' them in a sense, but if I can't work out what I need to say/do, I'll be inclined to withdraw the case to avoid having to pay them lots of costs.

[R0b]

Hello

Your witness statement is simply a statement of facts you wish to rely on in court along with any evidence. So you should start by giving some background information and then lead up to the events which happened, what followed and how you ended up issuing court proceedings. You might wish to include at the end as separate point, both pre and post issuing proceedings.Â*

As a side note, when put your order into the basket, did you have to register an account before any order could be completed? The reason I ask is because you said you abandoned an order but if you did so and opted out at that point then they shouldn't have had any details about unless you registered before-hand (unless there is something I am missing).


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[DPAManiac]

Thanks R0b. To answer your question, I was going through the checkout process and had already given all of my details when I reconsidered. The item bring ordered was a subscription service and so I had to enter my details in order to submit the order. Essentially, I abandoned the order right at the last step before clicking 'order now'. The spam they sent me was inviting me to finish my order.

[R0b]

Thanks for that but perhaps I've not made myself clear as to the question I was asking, let me try another way. There is usually two scenarios when you make purchases online, some websites will require you to sign up and register your details before any order can be made, others will allow you to make a purchase without registering your details and simply input them along the order process until you confirm your order.

Does this company fall into scenario one or two?

I can see that you also mentioned that the spam that was sent to you was inviting you to finish your order, does that mean you didn't 'cancel' the order or failed to empty your basket when you abandoned it hence the invitation to complete the order? Reg. 22 of PECR does say that there is an exemption where:

"that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient"

Perhaps from the company's perspective, the email sent to you was in the course of a sale or negotiations for the sale of a product or service unless of course you unequivocally cancelled the order but based on the suggested email sent to you, it doesn't sound like you did.

I'm not suggesting for one moment that you don't have a claim rather I'm playing devil's adovcate as these sort of things might crop up either by the judge asking you the question or as arguments put forward by the company.

By the way, has the court actually made an order that both sides file a bundle along with their witness statement or is this something you are wishing to do over an above what the order from the court says?

[DPAManiac]

R0b, thanks again.

I didn't have to sign up or create an account before going through the checkout - it was the second scenario you described, where I had to enter my details as I proceeded with the order checkout. I'm happy to PM you the details of the website involved, it hasn't changed since AFAIK, then you can see it for yourself.

I didn't cancel the order as I didn't place it - I simply closed the tab without emptying the basket. The exemption in Reg 22 PECR is not engaged in my circumstances, as, whilst there was clearly a "sale or negotiations for the sale of a product or service", I had, as far as possible, specifically objected to receiving marketing by unticking their two pre-ticked boxes offering to "save your deal in case you leave the basket early, so you will never miss out on our awesome deals" and "update you on all the latest info about your new [item purchased], competitions plus lots more" - there was no mention there of receiving marketing in there anywhere, it was implicit.

The Court order says that I must pay the hearing fee by one month before the hearing, and, no later than 14 days before the hearing:

"Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing ... the documents sent to the other party and the court must include the statements of all witnesses (including the parties themselves)"

So whilst this doesn't explicitly require a bundle, I see it as the most sensible thing to do, considering there will be long judgements, Acts, Regulations, and screenshots etc. to evidence (along with a perhaps sizeable WS to explain everything). I have heard that preparing a clear and well-organised bundle is impressive to the Judge, and considering the perhaps less-than-100% footing of my claim, I definitely want to be on the right side of the judge.

[R0b]

Thanks, I'm afraid that I can't get past the page with the opt-in boxes as it seems a credit check will be done on me but I can see what you mean. I suppose it will be decided by the judge as to whether you did uncheck those boxes or not.

On another note, the opt-in box which says "save your deal in case you leave the basket early, so you will never miss out on our awesome deals" has a link to their privacy policy which then goes on to talk about 'cookies' and how the information is stored etc. but what I can't see is that they reserve the right to contact you about finishing off your order or that you give their consent to contact you about your order in the event it has been abandoned.

Using a cookie to store one's information of an unconfirmed order is one thing, and contacting them about finishing off your order is another, particularly if no you didn't consent to nor is it clearly explained. Pedantic perhaps, but sometimes it is the technical arguments that win.

Have you got a hearing date or still awaiting one?

In terms of your witness statement it sounds like you are along the right lines. I am a fan of headings as it makes it easier to navigate and helps to guide the judge through your statement - presentation does go a long way but everyone has their own preference. In terms of setting it out, do you know how it should be set out? Perhaps you should start off with something like the following as a guide:

1. background (brief info)
2. The order process
3. Subsequent correspondence following the abandoned order
4. Conduct of the Defendant (if applicable)

As for your bundle it's not difficult to compile its just that it can be very time consuming and a lot of litigants in person don't realise this, leaving it to the last minute. The bundle itself should not contain all documents pertaining to the case, but documents that you intend to refer to at the hearing. A typical arrangement of a bundle might include the following:

1. An index - this is basically a table of contents setting out the page numbers for each of the documents contained in the bundle. These are generally set out in tabs or sections.
2. Statements of case - this is the claim, defence and witness statements
3. Court orders - I assume this is a small claims issue so unless there are any bespoke orders or you wish to refer to any orders for non-compliance I would probably exclude these as they are pretty standard for small claims.
4. Any key correspondence between the parties (chronological order)
5. Authorities / legislation

All of your documents should be paginated and you would need to file it at court and serve it on the other side. Extra copies of the bundle in an A4 ring binder for the judge on the day would be advisable as the court can misplace them.

You might also want to take another copy for the other side in case they don't have it but to save time and cost, you may wish to contact the other side and ask whether they intend to serve a bundle and if so, perhaps agree a joint bundle for reasons of cost and time. Note that it is usually the claimant who prepares the bundle if a joint one is used.

I've attached an example index as a starting point to help you, though in the example the witness statement is a separate tab from the statements of case you could bundle them together if you wanted.

[DPAManiac]

Thanks a lot R0b. I've PMed you a link to my current initial incarnation of my bundle (still missing my WS, their WS, and all the evidence and authorities, but I'm gathering those all up.

I have a hearing date and it's for April.

As I mentioned here and as I do in the bundle, I have evidence that I unticked the boxes - when I received the first spam message, I reopened the tab which I had closed, containing the opt-out box. It was still unticked and I printed this to PDF.

I agree totally that the privacy policy is nowhere near clear enough that marketing will be done. Such ambiguity is OK when it's about normal processing (cookies etc.), but it's unacceptable for marketing.

I think my Skeleton Argument needs some work, so if you have any suggestions about this (or any other part of the bundle) I'd be much obliged. Once this matter is all done and gone, I'll be happy to post redacted versions of everything publicly, just don't want to jeopardise things now.

Thanks!

[DPAManiac]

I completed a full draft bundle - I haven't been able to get hold of the defendant's designated contact in order to speak about the WS and I suspect I won't be able to before I have to submit the WS and bundle.

My allocation order says that

"Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing ... the documents to be sent to the other party and the court must include the statements of all witnesses (including the parties themselves) ... in cases of this type, the documents and information sent to the court and each party should, where available, include:

the letter making the claim and any reply;
any written contract;
photographs;
any plans;
a list of the work complained of;
a list of any outstanding work;
any relevant estimate, invoice or receipt including any relating to repairs to each of the defects;
invoices for work done or goods supplied;
estimates for work to be completed;
a valuation of work done to date."

I would be happy to share the bundle via PM.

Thanks!
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