Serious breach of DPA - refuse to send me a DSAR

[larryharvey]

I have an account with a currency card provider. I had fraud occur on my account last year, and they managed to make quite a few mistakes processing a refund. They admitted as much in a phonecall. I told them they could fairly compensate me for my time and troubles or I would be forced to take legal action.

I then accepted a very small amount (£50) to put an end to the matter, and told them the DSAR request was no longer necessary as I did not need the call recording to prove my case, as there was now not going to be a case.

Then about six months later, this small amount of money was the subject of new fraud on the new card. I had not used the new card since the previous fraud occurred.

I asked for them to refund the fraudulently taken funds, which they refused to do. I made another DSAR request with my intention being to start proceedings as the same thing was occurring. The call from months ago would prove that they acknowledged their system was not fir for purpose.

They told me they were processing my DSAR request. They then told me it would be delayed. Then they turned round and told me that they were not going to fulfil my request as they considered it "manifestly unfounded" - either because they thought I was asking for it to "do their company harm" or because I had made "too many requests".

I told them I was disgusted by this, and would start a legal claim to cover my time up to that point and for compensation as per the DPA - for distress and inconvenience (and for my wasted time). They still refused. I started a claim for £300, and emailed them to communicate that I would be adding £100 every week that I was not sent my DSAR.

The ICO investigated, found that they were wrong, and that I was entitled to the DSAR, having not ben sent one previously at any stage, and told them to arrange this with me within a fortnight.

The company contacted me to "talk about what we can do to put things right." I asked them if the call would be with a view to settling the current court claim? They emailed back to say yes.

I then took their call - first thing they asked was "if we settle this, are you going to still want the DSAR?" They were quite obviously fishing for something to try to entrap me. I told them I wanted the DSAR that the ICO had ordered them to produce. I then ended the call after finding it was being recorded without telling me in advance.

They called me again, asking for a settlement figure, and later emailed me asking me to put it in writing. Up to this point, £100 a week had increased the figure to £2,400.

They then spent six weeks stringing the ICO along as well as myself. The ICO repeated their findings after a further review, and also told them the most recent call recording needed to be sent to me too.

That is the end of it as far as the ICO are concerned. They told me to litigate.

I have told the company that up to this point the total stands at £3,000 (£100 per week) and I am making an application to increase my claim to this amount, which is now at my local court.

I will probably ask for the court to also immediately compel the company to issue my DSAR.

I have emailed the companies CEO repeatedly about issuing my DSAR, and received emails back which have completely avoided mentioning anything about my DSAR.

Quite ridiculous.

I wanted to canvass opinions on this site - does anyone have any more in-depth knowledge about the DPA? Or what I could ask for. I said £100 per week as a sort of arbitrary figure, but do not know if I should have said more or less.

One thing I do know is that this matter is infuriating, distressing and time-consuming.

Anyone have advice on how to proceed?

[des8]

It will be up to the judge hearing the case to decide on the award, if any.
if you fail to demonstrate you have suffered distress, the court may not award you compensation and could order you to pay the other party’s costs.

As to how much: awards vary from £500 upwards into 5 figures

[larryharvey]

It will be up to the judge hearing the case to decide on the award, if any.
if you fail to demonstrate you have suffered distress, the court may not award you compensation and could order you to pay the other party’s costs.

As to how much: awards vary from £500 upwards into 5 figures

Thank you. Where did you find this figure please?

[des8]

There is an article here you might like to read https://beale-law.com/article/how-mu...-really-worth/

My figures are from [faulty?] memory

[larryharvey]

Interesting development...

The company have now agreed to get me my DSAR.

I emailed them once more to ask if they wished to settle the current court claim?

I was emailed back and asked "Can you confirm that if we agreed a suitable figure by Monday at 18:00, you are offering to withdraw your DSAR request and claim in court? Once I have confirmation of what you are willing to withdraw in return for settlement, I will discuss with our CFO on Monday morning when he returns from annual leave."

I smell a rat here. They have previously alleged that I am looking to do their company harm and that is sufficient grounds for denying my DSAR request. They stated that "I was not really interested in obtaining a DSAR and was only requesting it to be a nuisance, holding them to ransom"

From the DPA: A request may be manifestly unfounded if the individual clearly has no intention to access the information or is malicious in intent and/or is using the request to harass an organisation with no real purpose other than to cause disruption.

I emailed back to tell them the DSAR was due and I suspected entrapment was the real reason for their request. I invited them to enter into without prejudice discussions where they could make not having to carry out the DSAR request one of their conditions of settlement. They responded:

"There is no entrapment. Given you are unwilling to confirm exactly what you would withdraw as part of a settlement, my hands are tied. We will not be settling."

I responded:

"So to clarify - you do not want to fulfil the DSAR request, and are offering to discuss settlement if I agree that I would stop pursuing the DSAR as part of a potential settlement agreement?"

Their last response was:

"To clarify – you have two requests from our company. A claim in court and a DSAR. Both require time and attention from my team. I am asking which of these you are offering to no longer pursue if we find a suitable settlement figure. If you are unwilling to confirm, I have no basis on which to arrive at a suitable settlement figure, so will not be settling.

As you will understand, when contemplating a settlement figure I am going to simply look at time/cost expended inside our company in defending the court claim and collating the information under the DSAR, versus what you will accept as a settlement, and take a commercial view. So I need to know what you are offering to no longer pursue."


idk...seems fishy to me. Opinions?

[des8]

It's not unusual for businesses to take a commercial view of litigation, and be prepared to come to a settlement if it will be cheaper for them than disputing the claim.
Similarly a litigant might well accept an offer below the level of their claim to avoid the costs and stress of continuing the claim (let alone the possibility of losing in the lottery of court!)

[larryharvey]

des8 I understand. And I would like to settle. However, I am suspicious that they only want me to state I will not pursue a dsar if we settle so that they can then state to a judge that they were right all along.

[des8]

If you mark all your correspondence "without prejudice save as to costs" when honestly trying to agree a settlement, then that correspondence may not be used if no agreement to settle is reached.
It is considered "privileged" until and if costs are ruled on by the court.

[larryharvey]

I was going to do this. However, I am still a bit wary, as I read that in some cases WP discussions can be disclosed if there are sufficient grounds to do so.

Here is why I am wary - it seems to me, if you read the above, that they are dying for me to OFFER to drop the DSAR request first, and will not state that THEY require it as an express term of their consideration when reaching a potential settlement.

Do you see why my spidey sense is tingling? Because there is surely no other reason for wanting things worded and setup in this way other than an ulterior motivation i.e. to entrap me?

So I might say, in WP discussions ,something like "I understand from your emails that it is an essential component of any settlement that the DSAR request be withdrawn, and I agree to this in principle, should we agree a settlement."

What do you think? If they then turn round and won't proceed further with discussions, or ask for it to be reworded so that they are not asking for this, and looking for me to offer in the first instance, we know they're up to no good.

[des8]

I think you are over thinking the situation!
The exceptions to a WP discussion are quite few, but there is no reason not to seek what they are looking for to agree a settlement

[larryharvey]

Okay at des8 do you mind if I post the whole email chain here? Omitting the identifying information? There might be some subtleties I have not properly surmised previously. I want to make absolutely sure that this company is not playing games. Would appreciate your final thoughts? And of course anyone else.

And my draft response is at the end of the chain, not yet sent.


COMPANY:
I am the CEO of ???. I have been passed your email by our Head of Compliance.
I note below your offer of settlement. Can you confirm that if we agreed a suitable figure by Monday at 18:00, you are offering to withdraw your DSAR request and claim in court?
Once I have confirmation of what you are willing to withdraw in return for settlement, I will discuss with our CFO on Monday morning when he returns from annual leave, and reply by midday.
Regards

ME:
Mr ???,
It is absolutely clear to me what you are trying to do, as it was when I spoke to Mrs ??? on the phone (a call I am obtaining as part of my DSAR).
It is called entrapment.
Which really doesn't make any difference to the substance of the claim anyway - you can't argue that you didn't fulfil my DSAR request because of your allegations if the substance of those allegations only occurred after you refused the request. Not unless you've managed to break the laws of physics somehow.
But by all means your company can continue to act in this underhand, and, frankly speaking, ridiculous way, and further bolster my case against you.
My DSAR is five months overdue. I now once again request a date when it is to be sent.
If you do not want to fulfil the request, which does not surprise me given the information you have to send me, you are free to make that a condition of the settlement in a WITHOUT PREJUDICE discussion, which I would then have to decide whether to accept or not.
If I do not hear back from you by Monday 6pm then there will be no discussions of a reduced settlement.
Sincerely

COMPANY:
Mr ???,
There is no entrapment. Given you are unwilling to confirm exactly what you would withdraw as part of a settlement, my hands are tied. We will not be settling.
We will comply with your DSAR as ??? has confirmed – and will respond in due course on this, with the data required.
Regards

ME:
So to clarify - you do not want to fulfill the DSAR request, and are offering to discuss settlement if I agree that I would stop pursuing the DSAR as part of a potential settlement agreement?

COMPANY:
To clarify – you have two requests from our company. A claim in court and a DSAR. Both require time and attention from my team. I am asking which of these you are offering to no longer pursue if we find a suitable settlement figure. You have offered to drop either or both at various stages of email exchange over the past two months. If you are unwilling to confirm, I have no basis on which to arrive at a suitable settlement figure, so will not be settling.
As you will understand, when contemplating a settlement figure I am going to simply look at time/cost expended inside ??? in defending the court claim and collating the information under the DSAR, versus what you will accept as a settlement, and take a commercial view. So I need to know what you are offering to no longer pursue.
As below – if this is not suitable for you then I completely understand. We intend to fully defend our position which we believe (and have had legal advice on) is robust.
Regards.


(NOTE: The above claim about "emails offering to drop the DSAR request" is rubbish. Also, please remember that this company has refused to send the DSAR for five months and is only now doing so having been told to TWICE by the ICO).


MY DRAFT RESPONSE:

WITHOUT PREJUDICE SAVE AS TO COSTS

Mr ???,
I am cautious about the way your emails are worded. You are asking what I am offering to do in order to reach a settlement. You seem insistent that, in the first place, I must make the offer, before you will agree to even enter into discussions, and it feels odd because we are basically already having a settlement discussion.
You have also stated that settlement would be a commercial decision for you, based on the time and costs that you will save not having to collate a DSAR and defend my court claim.
One of the overriding objectives of the CPR is that both parties work together to reach settlement, not least so that courts time is not taken up unnecessarily.
With this in mind, I agree to your pre-condition of engaging in settlement discussions - I will withdraw my DSAR request as well as the court claim if and when we agree a figure.
To be clear - I consider this offer to be the same consideration for you regardless of when it is being made, and it is only made up front like this because you are insistent on it.
You have stated in your previous email that this is not entrapment, and despite my better judgement, I am taking you at your word.
Finally, I have no idea who has told you that "You have offered to drop either or both at various stages of email exchange over the past two months." That is bullshit.
Sincerely,
Mr ???

[des8]

To me the company seem to be acting quite straight forwardly.
They need to quantify their possible costs, and can't do that until they know what you are prepared to offer.
Having told them what you are prepared to do, they will make an offer which you accept or decline or ask them to increase i.e. you negotiate.

I also would not be writing a letter such as you propose.
Besides being unnecessarily antagonistic it could be that eventually it will be seen by a judge and your terminology is not what is expected in an attempt to negotiate a settlement.

[larryharvey]

Settled for £750.

[des8]

Well done and thanks for letting us know