**DISCONTINUED*** didactosaurus v BPS ~**DISCONTINUED**

[Amethyst]

Thread for didactosaurus. You have more privacy here in VIP.

( for ref here's flutterby's thread - http://www.legalbeagles.info/forums/...ty-Court-Claim )

[Amethyst]

Re: didactosaurus v BritishPassportServices ( UK Services & Support )

Claim Form

[Amethyst]

Re: didactosaurus v BritishPassportServices ( UK Services & Support )

CLAIM acknowledged via MCOL with intent to defend in full

DEADLINE FOR DEFENCE Saturday, March 14, 2015

[Amethyst]

Re: didactosaurus v BritishPassportServices ( UK Services & Support )

http://www.legalbeagles.info/forums/...formal-Opinion

[tyke1601]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

How come your claim is for £35 more than my stepson's?!!!

[Kati]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

How come your claim is for £35 more than my stepson's?!!!

I believe each claim will have a slightly different amount on them depending on which 'services' they provided (or not as the case may be )

[Nibbler]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

Or if you swore at them on the phone etc.

(£10 abusive language charge plus others )

[Amethyst]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

From did's contract

Do you Understand & Agree that should your
circumstances change then the only Acceptable
Cancellation Method is to use our Cancellation
Helpline?
- Yes I Agree & Understand that to Cancel I need to call: 0203 6000 145

( Just noting it as later contracts have various other cancellation methods)

[didactosaurus]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

Hi all. Just to clarify, it's my wife who is the victim of this - I've worked in credit management and done a bit of litigation in that regard, so I'm sorting it out for her. I am going to be working on this very hard over the next couple of weeks. I will put together a complete timeline including dates of communications by different forms, and also note the inconsistencies in communications from them (there are many - for example, my wife was accused of instructing solicitors last year when she hadn't!).

Besides the contractual/procedural issues, such as pre-contract information and cancellation, there is also a strong case for harassment and unfair contract terms in general. When I look at the whole picture, I really can't see how they will be able to go before a District Judge. They will be absolutely slaughtered on some points and I can't see any solicitor being daft enough to take them on as a client - which means El Dicko Howard could appear in cameo...now, I'd pay the money just to see that!

Seeing as they can take this up to 7 days from hearing then cancel without penalty, I really think that's how it will be playing out. This makes my blood boil as I've no doubt some will seek and pay for legal advice - without a cat in hell's chance of getting that money back.

I'll post more info as & when.

[didactosaurus]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

Oh, and the claim amount has gone up now. They've been charging £5 each for emails we've sent and replies to those. It's now about £252 according to their website.

I understand Howard claims to be a kickboxer; I was at one point. I'd pay the money just for one round with him.

[Amethyst]

Re: *** didactosaurus v BritishPassportServices ( UK Services & Support )

Hiya,

I think people should submit a standard defence as the legal issues are the same for every claim, the only part that differs is whether you tried to cancel the ''service'' and at what stage. I've put an outline in the public forum http://www.legalbeagles.info/forums/...447#post522447 so have a look at that and ask any questions you like. The Witness Statements are the personal bit so I just want to make sure everyone has their defence in before their deadline, then we can spend a bit more time on the WS and evidences for the next stage.

Sorry it's a bit of a template job xxx

Sharon
xxx

[didactosaurus]

Re: *** didactosaurus v BritishPassportServices ( defence due 14 march )

Hi Sharon - I've spoken to HMPO and requested an email or letter confirming that no appointment was made in my wife's name for the date and time they indicated - will take up to 48hrs to get a reply from Liverpool HMPO, apparently. Fingers crossed
@Amethyst

[Amethyst]

Re: *** didactosaurus v BritishPassportServices ( defence due 14 march )

Grand idea. Did you tell them why you were asking ?

[didactosaurus]

Re: *** didactosaurus v BritishPassportServices ( defence due 14 march )

Grand idea. Did you tell them why you were asking ?

Yep. The girl wasn't that interested in the background details, she just took contact info and reference numbers down. TBF, it's rarely you come across a cust servs person these days who can 'deviate from the script'. They seem either really blinkered or - without being a linguicist, I assure you I'm not - don't speak English well enough to 'get' what you're saying.

[Amethyst]

Re: *** didactosaurus v BritishPassportServices ( defence due 14 march )

FIRST DRAFT

1.Save where otherwise accepted within this Defence, the Particulars of Claim are denied. In particular, the Defendant denies entering into an effective and binding Agreement with the Claimant as alleged by the Particulars of Claim, or at all.

2. The Defendant visited the Claimant's website on 18th June 2014 while looking online for information on how to renew her Passport at Her Majesty's Passport Office ("HMPO")

3.The Claimant, trading as British Passport Services, operates a “copycat” website which claims to offer access to Government services for which the Claimant is not an official Government provider, specifically in relation to UK Passports. The Claimant used misleading advertising, words, and conduct to induce the Defendant to enter into an alleged Agreement to provide “services” in relation to obtaining a Passport, contrary to the Misrepresentation Act 1967.

4.The Defendant had no intention of entering into any contract with the Claimant and in fact only wanted to book an appointment directly at the HM Passport Office to obtain a passport. She was misled into believing the Claimant’s website was the official HM Passport Office website and completed a form online to book an appointment. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it deceived the Defendant and was likely to deceive the average consumer; it caused the Defendant and was likely to cause the average consumer to take a transactional decision she would not have taken otherwise.

5: The Defendant has the right to rescind the alleged Agreement by virtue of the misrepresentation.

6. The Defendant will, amongst other evidence, rely on the ruling of the Advertising Standards Authority (“the ASA”) against the Claimant dated 17 September 2014 in relation to the Claimant’s website. Specifically, the Defendant will be relying on the ASA’s ruling that: The Claimant’s website misleadingly implied that it was the official website for HMPO; and The Claimant’s website was misleading, because it did not make clear that the fee charges by the Claimant was a service charge only, and that an additional fee was payable to HMPO to obtain a passport.

7.The alleged Agreement was conducted through the Defendant’s website, www.BritishPassportServices.co.uk. The alleged Agreement, if valid, amounts to a Distance Contract as set out in Regulation 5 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (“the 2013 Regulations”).

8. The Defendant realised that she had not been on the official HMPO website when she received a SMS text message from the Claimant stating that her payment had been declined. The Defendant had not at any time attempted to make payment to the Claimant.

9. At 7.30pm on 18th June 2014 The Defendant exercised her right to cancel the alleged Distance Contract under Regulation 29 of the 2013 Regulations, and within the Normal Cancellation Period under Regulation 30 of the 2013 Regulations. The Defendant therefore has no obligations under the alleged Agreement, as set out by Regulation 33 of the 2013 Regulations. The alleged debt is therefore not due to the Claimant.

10.The Claimant failed to give confirmation of the alleged Agreement in a Durable Medium, contrary to Regulation 5 and Regulation 16(1) of the 2013 Regulations. The alleged performance of the alleged “services” under the alleged Agreement took place without such confirmation being sent in a Durable Medium, contrary to Regulation 16(4) of the 2013 Regulations. Any performance of the alleged “services” is in breach of the alleged Agreement, contrary to Regulation 18 of the 2013 Regulations, such that the Defendant is not liable to pay for those alleged “services”.

11.Further or alternatively, the alleged “service” was not completed before the Defendant cancelled the alleged Agreement, such that the Defendant can only be liable for those “services” that were actually supplied. The Claimant has confirmed to the Defendant that cancellation had been received before any service was commenced.

12.Further or alternatively, the Claimant failed to supply information on the right to cancel required by paragraph (l) of Schedule 2 to the 2013 Regulations, such that the Defendant is not liable to pay for any alleged “services” that were in fact carried out prior to the cancellation of the alleged Agreement.

13. The Claimant has added additional costs, fees and charges to the Claim, which are not provided for under the alleged Agreement. As such, they are not enforceable.

14.Further or alternatively, if the relevant fees and charges are incorporated into the alleged Agreement (which is denied) by virtue of a specific clause (“the Relevant Clause”), then those fees and charges are excessive and disproportionate, and the Relevant Clause is therefore contrary to the requirement of good faith, and causes a significant imbalance in the parties’ rights and obligations to the detriment of the Defendant as a consumer, contrary to Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCRs”).

15. Further or alternatively these charges are penalties and are therefore unenforceable at common law.

16. Since June 2014 the Defendant has received numerous calls, letters, text messages from the Claimant. The Defendant has responded on a number of occasions to inform the company she had cancelled and had never received any services from the Claimant. Her communication with the Claimant has had no effect other than to increase the amount claimed.

16. The Defendant has experienced alarm and distress which has been caused by the Claimant’s misleading actions which caused the Defendant to enter into the alleged Agreement, which resulted in: -harassment of the Defendant by the Claimant for payment of monies which are not due; and -the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.

17. The Claimant made the Personal Data of the Defendant freely available through the internet without any controls over who can gain access to that Personal Data from the date the defendant submitted their data to the Claimant. The web address which contains that Personal Data is printed on the Claim Form, and has been submitted to (and disclosed to) Her Majesty’s Court Service through the County Court Bulk Centre. Unidentified third parties could also access the Personal Data without any controls if they can ascertain the correct web address. All that is required to ascertain the correct web address is a name, or part of a name. This is contrary to the Data Protection Act 1998. The Claimant has amended this following complaints and changed the access on 24th February 2015 to require the applicant's date of birth to be entered in order to access the data.

18. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.

IN THE xxxxxxxxxx COUNTY COURT
CLAIM No: XXXXXX

BETWEEN

UK Services & Support Ltd
CLAIMANT
And

xxxxxxxxxxx
DEFENDANT


DEFENCE

1. Save where otherwise accepted within this Defence, the Particulars of Claim are denied. In particular, the Defendant denies entering into an effective and binding Agreement with the Claimant as alleged by the Particulars of Claim, or at all.
2. The Defendant visited the Claimant's website on 18th June 2014 while looking online for information on how to renew her Passport at Her Majesty's Passport Office ("HMPO")

Misrepresentation
3. The Claimant, trading as British Passport Services, operates a “copycat” website, www.BritishPassportServices.co.uk (“the Website”), which claims to offer access to Government services for which the Claimant is not an official Government provider, specifically in relation to UK Passports. The Claimant used misleading advertising, words, and conduct to induce the Defendant to enter into an alleged Agreement to provide “services” in relation to obtaining a Passport, contrary to the Misrepresentation Act 1967.


4. The Defendant had no intention of entering into any contract with the Claimant and in fact only wanted to book an appointment directly at the HM Passport Office to obtain a passport. She was misled into believing the Claimant’s website was the official HM Passport Office website and completed a form online to book an appointment. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it deceived the Defendant and was likely to deceive the average consumer; it caused the Defendant, and was likely to cause the average consumer, to take a transactional decision she would not have taken otherwise.
5. The Defendant has the right to rescind the alleged Agreement by virtue of the misrepresentation. The Defendant exercised this right when she emailed the Claimant at 7:30pm on 18 June 2014 (“the Cancellation Email”).
6. The Defendant will, amongst other evidence, rely on the ruling of the Advertising Standards Authority (“the ASA”) against the Claimant dated 17 September 2014 in relation to the Claimant’s website www.ukpassportoffices.co.uk. Specifically, the Defendant will be relying on the ASA’s ruling that: The Claimant’s website misleadingly implied that it was the official website for HMPO; and The Claimant’s website was misleading, because it did not make clear that the fee charges by the Claimant was a service charge only, and that an additional fee was payable to HMPO to obtain a passport. The Defendant notes that the Website is now materially different in format and content.
Mistake
7. Further, or in the alternative, the alleged Agreement was entered into by mistake and is thus void.
8. The Defendant was mistaken as to the identity of the Claimant due to the Website’s misleading nature; the Defendant adopts and repeats the paragraphs above in this regard.
9. The Defendant and Claimant were not operating face to face and the Defendant reasonably believed that she was contracting with HM Passport Office. It was her intention to purchase a passport. The identity of the contracting party was important to performance of the Defendant’s intended contract as only HM Passport Office can offer such a service.


Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
10. The alleged Agreement was conducted through the Defendant’s website, www.BritishPassportServices.co.uk. The alleged Agreement, if valid, amounts to a Distance Contract as set out in Regulation 5 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (“the 2013 Regulations”).
11. The Defendant realised that she had not been on the official HMPO website when she received a SMS text message from the Claimant stating that her payment had been declined. The Defendant had not at any time attempted to make payment to the Claimant.
12. The Defendant exercised her right to cancel the alleged Distance Contract under Regulation 29 of the 2013 Regulations, and within the Normal Cancellation Period under Regulation 30 of the 2013 Regulations when she sent the Cancellation Email. The Defendant therefore has no obligations under the alleged Agreement, as set out by Regulation 33 of the 2013 Regulations (or otherwise). The alleged debt is therefore not due to the Claimant.
13. The Claimant failed to give confirmation of the alleged Agreement in a Durable Medium, contrary to Regulation 5 and Regulation 16(1) of the 2013 Regulations. The alleged performance of the alleged “services” under the alleged Agreement took place without such confirmation being sent in a Durable Medium, contrary to Regulation 16(4) of the 2013 Regulations. Any performance of the alleged “services” is in breach of the alleged Agreement, contrary to Regulation 18 of the 2013 Regulations, such that the Defendant is not liable to pay for those alleged “services”.
14. Further, or alternatively, the alleged “service” was not started and/or completed before the Defendant cancelled the alleged Agreement, such that the Defendant can only be liable for those “services” that were actually supplied.
15. In this regard the Defendant relies upon an email sent by Amanda Kirkman of the Claimant to the Defendant on 6/02/15 at 13:49 where it was conceded that “This email has been sent to you before any work began. Because you didn’t proceed with the agreed cancellation methods we continued providing the services you signed for…” This email confirms that the Claimant had not started any “services” prior to the Cancellation Email being sent.


16. Further or alternatively, the Claimant failed to supply information on the right to cancel required by paragraph (l) of Schedule 2 to the 2013 Regulations, such that the Defendant is not liable to pay for any alleged “services” that were in fact carried out prior to the cancellation of the alleged Agreement.

Restrictions on Cancellation Method

17. The Claimant seeks to rely upon a clause within its Terms and Conditions that stipulates “It is agreed that the only recognized cancellation method is calling our Cancellation Helpline on 02036000145 and entering your 5 digit cancellation code/applicant ID. You agree that requests to cancel via email, text message or calling our main helpline numbers are not accepted...” (“the Cancellation Term”)

18. The Claimant is put to strict proof that the Cancellation Term was incorporated into the alleged Agreement (the validity of any such agreement being denied, as above). The Defendant avers that this terms is particularly onerous/unusual and should have been explicitly and clearly brought to the Defendant’s attention.

19. Further, or alternatively, if the Cancellation Term was incorporated (not admitted), the Defendant avers that it is an unfair term and causes a significant imbalance in the parties’ rights and obligations to the detriment of the Defendant as a consumer, contrary to Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCRs”). The Cancellation Term, inter alia, inappropriately excludes/limits the legal rights of the Defendant (Schedule 2, 1(b)) and/or seeks to irrevocably bind the Defendant to a term with which she had no real opportunity of becoming acquainted before the conclusion of the contract (Schedule 2, 1(i)).

20. The Defendant intends to rely upon the Claimant’s updated Terms and Conditions which now allow cancellation by telephone, email and post.

21. The Defendant notes that the Claimant acknowledged receipt of the Cancellation Email prior to commencing any “services” (see above) and, further, allegedly responded to it (receipt of the response email is denied by the Defendant). Despite being aware of the Defendant’s intention, they proceeded with the “services” in any event. Any legitimate business interest and/or administrative benefit which the Claimant may seek to rely upon to justify the imposition of such an onerous term must therefore be challenged in the circumstances.

22. The Defendant accordingly submits that the Cancellation Term is unenforceable.
Extra Charges

23. The Claimant has added additional costs, fees and charges to the Claim, which are not provided for under the alleged Agreement. As such, they are not enforceable.
24. Further or alternatively, if the relevant fees and charges are incorporated into the alleged Agreement (which is denied) by virtue of a specific clause (“the Relevant Clause”), then those fees and charges are excessive and disproportionate, and the Relevant Clause is therefore contrary to the requirement of good faith, and causes a significant imbalance in the parties’ rights and obligations to the detriment of the Defendant as a consumer, contrary to Regulation 5(1) of the the UTCCRs.
25. Further, or alternatively, these charges are penalties and are therefore unenforceable at common law.

Harassment

26. Since June 2014 the Defendant has received numerous calls, letters, text messages from the Claimant. The Defendant has responded on a number of occasions to inform the company she had cancelled and had never received any services from the Claimant. Her communication with the Claimant has had no effect other than to increase the amount claimed.
27. The Defendant has experienced alarm and distress which has been caused by the Claimant’s misleading actions which caused the Defendant to enter into the alleged Agreement, which resulted in: -harassment of the Defendant by the Claimant for payment of monies which are not due; and -the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.
Data Protection Act
28. The Claimant made the Personal Data of the Defendant freely available through the internet without any controls over who can gain access to that Personal Data from the date the defendant submitted their data to the Claimant. The web address which contains that Personal Data is printed on the Claim Form, and has been submitted to (and disclosed to) Her Majesty’s Court Service through the County Court Bulk Centre. Unidentified third parties could also access the Personal Data without any controls if they can ascertain the correct web address. All that is required to ascertain the correct web address is a name, or part of a name. This is contrary to the Data Protection Act 1998. The Claimant has amended this following complaints and changed the access on 24th February 2015 to require the applicant's date of birth to be entered in order to access the data.
29. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.

I believe that the facts in this defence are true.

Signed:________________________________

Date: ________________________________