Court Action to obtain data

[Aquasition]

Hi Folks,

Haven't actually seen anyone taking court action to get data, so thought I would post this and then keep you informed of my progress.

Did a SAR on a Claims Investigators company. Waited 40 days. Got reply back saying that their client (insurance company) had provided all data. Asked again as I knew they had interview notes that had not been disclosed. No reply.

Have lodged small claims action in Paisley Sheriff Court for specific performance. The hearing should take place end of September. The defendants defense however will be known around early September. Will keep you all informed.

Chris

[LuggerBugs]

Re: Court Action to obtain data

Should be interesting.

[Mac99]

Re: Court Action to obtain data

Hi Chris,

Can I ask what you mean by specific performance and to expand a bit on the process, please.

Regards
Mac

[Angry Cat]

Re: Court Action to obtain data

Have you made an SAR to the insurance company involved?

[Aquasition]

Re: Court Action to obtain data

Hi Folks,

I promised that I would update you on the process in obtaining personal data from a Data Controller where an SAR has not been complied with.

This action is seeking an order in terms of Section 7 (9) of the Data Protection Act 1998. Section 15 (1) of the Act allows for proceedings to be brought in the Sheriff Court. Section 13 (1) of the Act allows for an individual who suffers damage by reason of any contravention by a data controller of any of the requirements of the Act to be entitled to compensation from the data controller for that damage.

The first hearing, which was held on Friday 1st October in Paisley Sheriff Court was a preliminary hearing.

The Defender (Data Controller) claimed there is no Act of Sederunt which directs the form of such proceedings and accordingly, the proceedings should be in the form of a Summary Application rather than in the form of a Small Claims process.

It was argued that the Defenders are mistaken in law. The Pursuer’s action is an action for Implement of Obligation and as an alternative to the Claim, a claim for payment of £200.

The Sheriff has now directed both parties to argue their case with regard to the process that should be followed. I have produced below my argument. Please read beyond my argument as there are one or two issues that you folks may be able to help with.

The Sheriff Courts (Scotland) Act 1971Section 35 (1) states that for the purposes of the procedure and practice in civil proceedings in the Sheriff Court there shall be a form of process, to be known as a “summary cause”, which shall be used for the purposes of all civil proceedings brought in that court.

Section 35 (2) of the same Act goes on to state:-
There shall be a form of summary cause process, to be known as a “small claim”, which shall be used for the purposes of such descriptions of summary cause proceedings as are prescribed by the Lord Advocate by order.
Such an order by the Lord Advocate at the time, Cameron of Lochbroom, was prescribed on the 15th November 1988 under the title “The Small Claims (Scotland) Order 1988” (the Order) which came into force on 30th November 1988.

The Order lays down that the form of Summary Cause process, to be know as a “small claim” shall be used for the purposes of Summary Cause proceedings including under Proceedings to be small claims section 2. (b):

actions ad factum praestandum (Implement an Obligation or Specific Performance) and actions for the recovery of posssession of moveable property where in any such action ad factum praestandum or for recover there is included, as an alternative to the claim, a claim for payment of a sum not exceeding £750 (now £3000 as amended by The Small Claims (Scotland) Amendment Order 2007).

The small claims process is to be used for actions for payment of money, not exceeding £3000 in amount (exclusive of interest and expenses), It is not to be used in actions in respect of damages for personal injury, aliment and interim aliment and actions of defamation even if such actions have a value of less than £3000. It is also to be used for actions ad factum praestandum and actions for the recovery of possession of moveable property where a sum not exceeding £3000 is claimed as an alternative. For these purposes, actions ad factum praestandum include actions for delivery and actions for implement but not for account, reckoning and payment.

Many cases which come before the court tend to feature complex issues of fact and law or both. The size of the claim has, of course, no relationship to the complexity. Anxious to make the nearest approximation to the correct decision in fact and law, courts prefer procedures which allow for the fullest investigation. Unfortunately, it has to be recognised that when the claim is for a small amount, the expense of a detailed and searching enquiry to arrive at the correct decision may mean that it is not worth the effort. Justice bought at too high a price might be regarded as no justice at all. In these terms, the adoption of a fair procedure may be as important as the reaching of the correct decision. Justice should then be seen as the peaceful resolution of disputes in the interests of society as a whole, with as much fairness as possible to all sides. In the case of small claims that has to mean reaching a satisfactory decision by a procedure which is simple, cheap and quick, even if the correctness of a decision, in fact or in law, might still be open to question.

Now, apparently, there are two processes. Summary Cause and Summary Application. I am personally not aware of what the difference is. So if anyone out there can provide information on Summary Application I would be most grateful.

[Aquasition]

Re: Court Action to obtain data

Thanks Amethyst

[shell]

Re: Court Action to obtain data

Aquasition,

As you are in Scotland and our law is different from them down South, it might be an idea to contact the Govan Law Centre. Just phone them and explain, I think they might be interested as they are known to take on big institutions.

I'm not suggesting you engage a lawyer, but I think they might be able to give you some free advice. Or at least explain how the system works up here.

[Aquasition]

Re: Court Action to obtain data

Thanks Shell,

I understand that Law Centres have their own catchment area. I am presently in contact with the principle solicitor of Renfrewshire Law Centre. I am hoping that notwithstanding I am out of their area, they might come back to me with something.

I also have a friend who is a retired Senior Partner from a law firm where I live. I am hoping to see him tomorrow. Hopefully, he will shed some light on the difference between Summary Cause and Summary Application. That being the case, I will post again.

What really bugs me at this stage is that the ICO in their guide "Taking a case to Court" advise that the action will normally be under a small claim. The Sheriff said that he accepted this but wasn't happy with the word "normally". In addition, the Small Claims Guide and Procedure states at section 1.12 that actions of Implement of Obligation can be under the small claims. The whole idea of small claims is for a simple procedure for us simple folks who haven't cost the country £0000's in tuition fees.

However, I suppose that's how sites like this start up. I hope that my post will be of benefit to others.

Chris

[Aquasition]

Re: Court Action to obtain data

Hi Angry Cat,

A SAR was issued to the insurance company, the loss adjusters, the insurance company solicitors and also the Claims Investigators Ltd. All but the Investigators eventually responded, be it after a little head bashing. The Claims Investigators undertook interviews with myself and others. They did not read back the interview notes, neither did they get anyone to sign their notes. They then produced "statements" without any further contact with the individuals and they sent the statements to the insurance company. As I said, none of the statements had been checked or signed.

The statement of mine in particular contained something that I did not say at the interview. Because of this, I requested the interview notes. This is the crux of the action.

Hope this helps,

Chris

[righty]

Re: Court Action to obtain data

Thanks Shell,

I understand that Law Centres have their own catchment area. I am presently in contact with the principle solicitor of Renfrewshire Law Centre. I am hoping that notwithstanding I am out of their area, they might come back to me with something.

I also have a friend who is a retired Senior Partner from a law firm where I live (Ardrossan). I am hoping to see him tomorrow. Hopefully, he will shed some light on the difference between Summary Cause and Summary Application. That being the case, I will post again.

What really bugs me at this stage is that the ICO in their guide "Taking a case to Court" advise that the action will normally be under a small claim. The Sheriff said that he accepted this but wasn't happy with the word "normally". In addition, the Small Claims Guide and Procedure states at section 1.12 that actions of Implement of Obligation can be under the small claims. The whole idea of small claims is for a simple procedure for us simple folks who haven't cost the country £0000's in tuition fees.

However, I suppose that's how sites like this start up. I hope that my post will be of benefit to others.

Chris

edit
------------------------------- merged -------------------------------

Hi Angry Cat,

A SAR was issued to the insurance company, the loss adjusters, the insurance company solicitors and also the Claims Investigators Ltd. All but the Investigators eventually responded, be it after a little head bashing. The Claims Investigators undertook interviews with myself and others. They did not read back the interview notes, neither did they get anyone to sign their notes. They then produced "statements" without any further contact with the individuals and they sent the statements to the insurance company. As I said, none of the statements had been checked or signed.

The statement of mine in particular contained something that I did not say at the interview. Because of this, I requested the interview notes. This is the crux of the action.

Hope this helps,

Chris

Where you state "The Claims Investigators" who do you mean Loss Adjusters, Claims Inspectors or some other organization?

[shell]

Re: Court Action to obtain data

Thanks Shell,

I understand that Law Centres have their own catchment area. I am presently in contact with the principle solicitor of Renfrewshire Law Centre. I am hoping that notwithstanding I am out of their area, they might come back to me with something.

I also have a friend who is a retired Senior Partner from a law firm where I live (Ardrossan). I am hoping to see him tomorrow. Hopefully, he will shed some light on the difference between Summary Cause and Summary Application. That being the case, I will post again.

What really bugs me at this stage is that the ICO in their guide "Taking a case to Court" advise that the action will normally be under a small claim. The Sheriff said that he accepted this but wasn't happy with the word "normally". In addition, the Small Claims Guide and Procedure states at section 1.12 that actions of Implement of Obligation can be under the small claims. The whole idea of small claims is for a simple procedure for us simple folks who haven't cost the country £0000's in tuition fees.

However, I suppose that's how sites like this start up. I hope that my post will be of benefit to others.

Chris

The reason I suggested the Govan centre is that they are very active when it comes to taking on financial institutions. Even though you are outwith their area they might still be very interested in what you are doing. Just thought it might be worth a try.

[Mac99]

Re: Court Action to obtain data

Hi Aquasition,

I think I too will need to go down the court route to try and get the information released. Am i right in thinking that you are going down the route of compensation for failure as opposed to actually getting the information under the DP Act?

Regards
Mac

[Aquasition]

Re: Court Action to obtain data

Hi Shell,

Thanks, the response from Renfrewshire Law Centre was not of much help. I understand now that Summary Application is effectively when the Sheriff will make a decision without the action going to proof (full hearing leading evidence). Still not convinced that Summary Application is the correct process, so I am pursuing the Small Claim route. I found a case up in Lerwick Sheriff Court where the Sheriff processed an action of specific performance under Small Claims. The pursuer was successful but ultimately, the action had to go for judicial review at the Court of Session. I intend to contact Govan, Shell and hope that they may take an interest in this.

Mac,

Where you pursue an action for Implement of Obligation under the Small Claims Process, you must have a monetary value as an alternative to the claim. The value will determine what process you will follow. So in the case of a Small Claims, the value as an alternative must be £3000 or less. You will need to quantify the value - no good just picking a sum out of fresh air. In my case I elected to claim for a small amount of £200. This means that there should be no expenses awarded in the event that I loose my action.

If you need any help with the correct forms etc, give me a buzz - happy to be of any assistance.

Chris

[Aquasition]

Re: Court Action to obtain data

Thanks Pompevfaith and Righty

Read more at: Court Action to obtain data - Legal Beagles Consumer Forum

[Aquasition]

Re: Court Action to obtain data

Righty,

Re: Where you state "The Claims Investigators" who do you mean Loss Adjusters, Claims Inspectors or some other organization?

The Insurance Company instructed a company of Loss Adjusters who were based in England. They in turn instructed a firm of Claims Investigators. It is the Claims Investigators that are proving to be a problem and the action is against them.

Hope this helps

Chris