** WON *** MAGOO v BPS - court date is 5th June 2015 *** WON **

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS by 1 May ???

Getting there, I wanted to see what happened with today's hearing first xxx I'll post up what I've got so far later on today xxx

( sorry taken off the example EXC gave as its a bit out dated now and I don't want to confuse matters)

Actually could do with a couple dates and the amount where the xxxxxx's are on here ....

____________________________________________
SKELETON ARGUMENT FOR THE DEFENDANT
____________________________________________

1) The Defendant makes this skeleton argument in preparation for the hearing to be held on 5th June 2015.

2) The Defendant received the Claimant’s witness statement on 23rd May 2015, in response to her own Witness Statement sent to the Claimant and filed with the Court on xxxxxx 2015.

3) The Claimant claims that the Defendant entered into an agreement with UK Services & Support for the provision of services in relation to obtaining a new/replacement passport from Her Majesty’s Passport Office and is claiming a sum of £xxxx from the Defendant.

4) The claim is denied.

5) 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. This cannot be allowed to form the basis of any claim against a consumer.

[EXC]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

The skeleton is mainly a summary of your defence but the main reason to file one is to counter points made in his witness statement.

xxx

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS by 1 May ???

I dropped my witness statement to the court on Monday 18th May @ 3:00pm and I sent to BPS on Wednesday 20th May.

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS by 1 May ???

Hi sorry forgot to put in the amount. It's £197.60 which includes £80 charges and he has also asked to add on the £25 court fee.
x

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS by 1 May ???

Thank you xxxxxxxxx I'll get the basis sorted and post up, then we can get it over to the court and Mr Howard for Thursday 4pm.

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

On my exhibit D1 I have a typing error - I've put the 2nd May 2014 saying this was when they made the appointment but I found from a text from BPS on the 12th May, when I phoned the Passport Office they said the appointment was made on Monday 11th May, I've put this in the letters I sent to court before and I remember as it was two weeks of me asking when this appointment was for. Because I put the 2nd on his Exhibit E he has a e-mail dated the 2nd May 2014 giving me details of the appointment. I got a text on the 12th May and a letter on the 16th May. He has looked at my documents and made it look like he sent an e-mail on the 2nd May 2014 which he did not. Have you noticed his e-mails do not say what address they came from? If he had sent it on the 2nd why would I have been asking when the appointment was for and why did not anyone else tell me the date? Also his text messages are from the only number I gave in my statement, the other text messages I did not receive do not have a number from it just says Passport? Exhibit F invoice charges do not match with the Exhibit E contact log? Do you think he is making all of this up as he goes along?

Andy Butters from Trading Standards is coming to see me on Thursday this week, which is good as it's the day before court.

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

On the copy of the Witness Statement that I have here you have put that you had the text giving the details of the appointment on the 12th May. ( para 11 )

Exhibit D1 is referred to in para 14 as your email to BPS on the 15th May.

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

Yes I had a text on Monday 11th (I've put the 12th on the witness statement, an error) I phoned the Passport Office in Newport on the 12th as the text was late on the Monday night. I will have to let the court know I've made a few typing errors!!! not good. But the error I made was saying BPS made the appointment on the 2nd May (which should have read the 11th May), he has now produced an e-mail dated the 2nd May telling me the appointment details but I did not have an e-mail and they never told me the details until the text on the 11th May.

Should I let the court know I've made a couple of typing errors or tell them on the day?

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

Yes I had a text on Monday 11th (I've put the 12th on the witness statement, an error) I phoned the Passport Office in Newport on the 12th as the text was late on the Monday night. I will have to let the court know I've made a few typing errors!!! not good. But the error I made was saying BPS made the appointment on the 2nd May (which should have read the 11th May), he has now produced an e-mail dated the 2nd May telling me the appointment details but I did not have an e-mail and they never told me the details until the text on the 11th May.

Should I let the court know I've made a couple of typing errors or tell them on the day?

No we'll amend anything in the skeleton.

Can you send me or post up here the bit where you put the 2nd May and the Exhibit from richard's witness statement ? ( have I got a copy of RH's witness statement in your case yet?)

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

it's okay I've got the exhibit D1 which says 2nd May on. Can you send me Richard's list of emails from his WS.

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

Okay first draft.




Hearing Date: 5^th June 2015
IN THE COUNTY COURT AT BRISTOL
B E T W E E N:-


UK SERVICES & SUPPORT LTD
Claimant
And
KAREN POWELL
Defendant

____________________________________________
SKELETON ARGUMENT FOR THE DEFENDANT
____________________________________________

1. The Defendant makes this skeleton argument in preparation for the hearing to be held on 5^th June 2015.

2. The Defendant received the Claimant’s witness statement on 23^rd May 2015, in response to her own Witness Statement sent to the Claimant on 20^th May 2015.


3. The Claimant claims that the Defendant entered into an agreement with UK Services & Support (UKS&S) for the provision of services in relation to obtaining a new/replacement passport from Her Majesty’s Passport Office and is claiming a sum of £197.60 plus £25 court fee from the Defendant.

4. The claim is denied



5. The Claimant, trading as British Passport Services (BPS), 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. This cannot be allowed to form the basis of any claim against a consumer



6. The defence can be summarised thus:

a)Either there was no contract; or
B)No services were supplied prior to the Defendant cancelling the contract; or
c)The Claimant’s misrepresentations entitle the Defendant to rescind the agreement; or
d)The Claimant bound the Defendant to terms and conditions which could not be seen in advance, and are therefore unfair, rendering the whole of the agreement non-binding on the Defendant; or
e)The Claimant used disproportionate charges for breach of the agreement, which amount to unfair terms and are therefore not binding on the Defendant.

7. No formation of contract

1. As set out in the Defendant’s witness statement the Defendant did not reach nor complete the payment page of the Claimant’s online booking form. Instead the Defendant closed the website and did not pay. It follows that there was no consideration given for the contract, and up until payment was processed there was no intention to create legal relations. This leads to the inevitable conclusion that there was no formation of a contract and the Claimant’s claim must fail.
2. Further or alternatively, the alleged “service” was not completed before the Defendant cancelled the alleged Agreement by closing the browser window and not paying, such that the Defendant can only be liable for those “services” that were actually supplied (of which there are none).

8. No services were supplied prior to the Defendant cancelling the contract

7. The Defendant told the Claimant during a telephone conversation on 1^st May 2014 at 3.00pm that if she had signed up to any service provision with them she cancelled it with immediate effect. The Claimant had not provided any service at that point. (See Defendants Witness Statement Paragraph 12 – 17) and in fact no service was provided until the 12^th May 2015 – 11 days AFTER the Defendant had told the Claimant she did not believe she had used their website and did not require any services from them. [*]The Claimant’s Witness statement and exhibits state that an appointment was made and details emailed to the Defendant on the 2^nd May, however the Defendant did not receive any such email on the 2^nd May 2014, and in the period between the 2^nd and 12^th May the Defendant had spoken directly with the Newport Passport Office who confirmed that no appointment had been made for her. When the Defendant spoke with the Newport Passport Office again on the 13th May an appointment had then been made (see Defendant's Witness Statement paragraph 13)



9. Claimant’s misrepresentations entitle the Defendant to rescind the agreement

a) The Defendant’s evidence is supported by reference to the Advertising Standards Authority (“the ASA”) ruling against the Claimant (EXHIBIT A) In 2014 the ASA conducted an investigation into the Claimant in respect of their online “services” advertised on their principle website, www.ukpassportoffices.co.uk.

On 17 September 2014 the ASA made 2 decisions based on its investigation into UKS&S. The ASA ruled that UKS&S had:

i) misleadingly implied that it was the official website for HMPO; and
ii)was misleading because it did not make clear that the fee charged was a service charge only, and that an additional fee was payable to HMPO to obtain a passport.

b) The ruling against the Claimant by the ASA (set out above) is evidence that the Claimant made a number of misrepresentations to the Defendant. The Defendant is entitled to rescind the contract, if such exists, under s.1 of the Misrepresentation Act 1967, or is entitled to damages under s.2 of Misrepresentation Act 1967.


c) There have been a number of misleading actions on behalf of the Claimant, including suggestions or inferences that they are authorised by HMPO, that the product they are providing includes the passport fee, and other matters which have been highlighted in the ASA decision. Given the misleading practices highlighted by the ASA, and given the facts set out in the Defendant’s witness statement, it is clear that there have been misleading actions by the Claimant. The Claimant asserts that they are challenging the decision of the ASA; but there is no indication that the appeal will be successful, and the court is entitled to proceed on the basis of facts and decisions as they are at the time of trial. Indeed, in several other cases involving this website and in which this Claimant is a party, the courts have found the Claimant’s website to be misleading and have dismissed the Claimant’s claim with costs.



10. The Claimant bound the Defendant to unfair terms which could not be seen in advance
a) Under the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCRs”), any attempt to bind consumer to terms and conditions which cannot be seen in advanced is normally considered ‘unfair’. In particular paragraph 1 of Schedule 2 to the Regulations, which sets out an indicative and non-exhaustive list of terms which may be considered unfair, includes terms:
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;


b) A term is rendered unfair by virtue of Regulation 5:
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


c) The terms in question in this case are clearly unfair, but further guidance can be obtained from the words of Lord Bingham at paragraph 17 of Director General of Fair Trading v First National Bank Plc [2001] UKHL 52:
The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulation.

d) In this case, the Claimant clearly took advantage of the Defendant’s lack of experience and unfamiliarity of obtaining a passport, and bound the Defendant to terms which she had no opportunity of viewing in advance, because the Defendant had to “agree” to the terms and conditions prior to going through the booking process and prior to making payment, which was not made.

e) An unfair term is rendered non-binding on the consumer by virtue of Regulation 8:
8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term

f) If there was an agreement to pay, notwithstanding the lack of consideration and the lack of intention to create legal relations, then it follows that the Defendant was bound to the terms and conditions of the Claimant’s standard terms before having an opportunity to review them. In particular, the Defendant was required to make a payment online using a credit or debit card, which the Defendant did not do, in addition to all the other terms which the Claimant asserts are included in the contract. This is clearly unfair, and any terms, including the requirement to make payment for the alleged services, should be ruled as being unfair under the UTCCRs and non-binding on the Defendant.

g) Further, since binding the Defendant to a collection of terms before the Defendant has made the decision to pay for any services is clearly unfair under the UTCCRs. As a result, the entire contract (if there even is one), should be voided or made voidable at the Defendant’s request under regulation 8(2) of the UTCCRs above, since the contract clearly cannot continue without the relevant terms requiring payment.


11. The Claimant used disproportionate charges for breach of the agreement

a) The Claimant has added a number of costs and charges to the Claim, but they are not expressly included in the agreement (assuming that there even is a valid agreement). As such, those charges cannot be applied to the Defendant under the Agreement, and they cannot be recovered in these proceedings without a ruling under CPR27.14(2)(g) that the Defendant has behaved unreasonably in defending this claim.

b)Furthermore, such costs and charges, if they were incorporated into the alleged agreement, would be unfair under the UTCCRs, as set out in paragraphs 15 to 20 of the Defendant’s Defence. Such costs and charges, being unfair under the UTCCRs, are not binding on the Defendant and should be struck out from the claim.



12. The Defendant seeks her costs as a litigant in person, which should be awarded on the basis that the Claimant’s behaviour, both in using misleading/unlawful actions and pursuing the Defendant for payment of sums simply not owed, using the court system, amounts to unreasonable behaviour under CPR 27.14(2)(g).

[Amethyst]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

One thing - in Richard Howards stalking list he mentions two emails received from you on the 10th May - are they the ones from the 12th May or were there others ?

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

I had sent lots of e-mails asking when the appointment was for and saying they were a scam company, I have a look for them, I did e-mail them back from my work e-mail address most of the time as I told them not to use kjXXX @ hotmail. co. uk as after having contact with them I kept receiving a lot of junk mail and I stopped using the account and got another. The statement you have written looks good, better than I ever could write one!
Because this was over a year ago and I had not heard from them for 6 months, I didn't keep everything and a lot of their e-mails were coming through as junk and I didn't not open them and asked them to send me e-mails from a e-mail address that would not come through as junk.

I'll have a look now.

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

The 12th May was a Monday and I sent a few e-mails on that day, one of which was asking them who regulated them. I remember the reply as it said no one and does a butcher get regulated, that stuck in my mind! I sent I would say all my e-mails from my work address and they replied to my kjXXX@ hotmail. co. uk address. The 10th May would have been a Saturday and I'm almost 100% sure I only e-mailed them while I was at work. Can't find any e-mails dated the 10th May 2014.

[Magoo]

Re: *** MAGOO v BPS - court date is 5th June 2015 - WS in - do SKELS

I think i'm loosing the plot!! The dates in the statement are right it was Monday 12th May 2014 , the mistake I made was in my e-mail to BPS dated Thursday 15th May @ 12.17pm - in the e-mail I said they had made the appointment on the 2nd May (which should have read the 12th May). So he has put an e-mail in dated the 2nd May 2014 @ 9.56 (in Exhibit E) giving me details of the appointment but I did not receive an e-mail on the 2nd May . I was asking for the date and time of the appointment - in Exhibit B1 there is an e-mail from Amanda Kirkman saying I was claiming there was no appointment, no where in the e-mail does it give me the date and time it just asks for confirmation from an officer at Her Majesty's Passport Office. Sorry that was the only mistake. I'm concerned because he has read the e-mail which says the 2nd and then put an e-mail in dated the 2nd May 2014.

This is really getting to me, thought I was a strong person but this has been getting me down.

I will need to send the statement off tomorrow so they get it on Thursday? Should I send it recorded delivery or just through the post the normal way?

- - - Updated - - -

That's the e-mail above that says the 2nd which should have read the 12th