*** WON *** Mandid v BPS - HEARING 3rd AUGUST ** WON ****

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Ok thankyou, I am blaming hubby for the jurisdiction ticking as he thought he knew what it meant and told me to tick it so we are both a pair of numpties lol! Just shows how honest people we are and have never had to deal with courts I'll ring them tomorrow. Grrrr bloody BPS.....

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Rang the court Amethyst and they got a bit confused themselves as their system was already showing BPS address in the right box. They said it had been amended and the court may have just put two and two together and amended it. Hmmm I am thinking more BPS are reading our open thread and sussed out they cocked it up from our first exchange and got it amended.

Do BPS have to send me a breakdown of the charges in writing now within 14 days? X

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

It is likely the court realised, when you enter your acknowledgment it would probably of flagged up so I wouldn't worry. Being corrected is better anyway as it leaves open less opportunities for RH to argue against any timescales/get any extensions. Were the court fine with the Jurisdiction bit ?

What happens now is that RH will tell the court he intends to continue with his claim and you will receive a small claims track directions/allocation questionnaire.

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Yes the lady just said it was ok I just don't action it the contest jurisdiction bit if the time comes. Do I wait until RH tells the court he intends to continue before I enter my defence or should I be getting on with that. I am contacting HMPO to try and find out when they made their appointment as the booking reference number is earlier than mine just out of curiosity really as I know it will not add any weight to my defence. I also got my phone statement which shows I rang to cancel minutes after I had gone online and received their first text with their id number. I rang the number just to listen to the voice over and notice they have added a lot more into it from the day I rang it 5th Jan. It still says you will get an email if they can cancel it but we know that doesn't happen and is not in their game plan to do so. In one email to me they do say we notice you tried to cancel straight away! So why in the hell did they insist on carry on with every crappy so call service. They contradict themselves....

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

Get on with putting the defence together. It will be quite standard as yours is after October 2014 and you tried to cancel We can put that in at any time in the next three weeks now, so if you'd rather get it out the way can just sort it out and submit it Monday.

Phone statement will help as evidence, as will anything you can get from the HMPO, and definately the 'we notice you tried to cancel' email .... but the evidence won't go with the defence it will go in as witness statement and documents to rely on later.

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Yes I am getting my head around it now witness statement after defence. Don't think I will be ready just yet to submit defence ie Monday. I will record current transcript on iPad off the cancellation line and type it up as it sounds today. Will also post it here. Thanks for all your help up to now don't know where so many would be without this site x

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

Made a start:



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 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. The Claimant alleges an agreement was entered into on 5th January 2015. The County Court claim was issued on the 21st February 2015.

Defence of Breach of Consumer Contract Regulations

3.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”).


4.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”.

5.The Defendant exercised her right to cancel the alleged Distance Contract under Regulation 29 of the 2013 Regulations, on5th January, 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.

6.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.

7.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.

Defence of Breach of Consumer Protection Regulations

8.The Claimant undertook unfair commercial practices prior to the date of the alleged Agreement, contrary to the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”). Specifically, the Claimant undertook “misleading actions” which either caused the Defendant to enter into the alleged Agreement, or was a significant factor in the Defendant’s decision to enter into the alleged Agreement, contrary to Regulation 27A of the 2008 Regulations (as amended by The Consumer Protection (Amendment) Regulations 2014).

9.In particular, the Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that:

it deceived the Defendant or was likely to deceive the average consumer;

it caused the Defendant or was likely to cause the average consumer to take a transactional decision she would not have taken otherwise,

in relation to the services provided by the Claimant.

10. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it created confusion as to:

The nature of the service being provided;

-The nature of the Claimant’s relationship with the Her Majesty’s Passport Office (“HMPO”);

-the main characteristics of the service;

-the extent of the Claimant’s commitments;

-the direct or indirect sponsorship or approval of the Claimant as an official service provider for UK Passports;

-the price or the manner in which the price is calculated;

-the need for the use of the Claimant’s alleged services;

-the nature, attributes and rights of the Claimant

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:

11. The Claimant’s website misleadingly implied that it was the official website for HMPO; and

12. 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.

13.If the alleged Agreement is enforceable, the Defendant seeks an Order under Regulation 27K(4) of the 2008 Regulations enabling the Defendant to unwind the alleged Agreement.

Defence of Misrepresentation

14. Further or alternatively, the Claimant through its words, advertising, or behaviour, used the misrepresentations set out in Paragraphs 9 and 10 above to induce the Defendant to enter into the alleged Agreement, contrary to the Misrepresentation Act 1967. The Defendant has the right to rescind the alleged Agreement by virtue of the misrepresentation.

15. The Defendant is therefore not liable under the alleged Agreement as set out in the Particulars of Claim or at all.

Defence of Unfair Terms

16.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.

17.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”).

18.As a result, the Relevant Clause which allows for those costs, fees and charges to be applied, is either:

a)Not in clear and intelligible language, and therefore open to assessment of fairness under Regulation 5(1) of the UTCCRs; or

b)Allows for the application of disproportionate penalty for failing to comply with the terms of the Agreement, and therefore unfair under paragraph 1(e) of Schedule 2 to the UTCCRs, or

c)Terms which the Defendants had no real opportunity of becoming acquainted with prior to the conclusion of the contract, and therefore unfair under paragraph 1(i) of Schedule 2 to the UTCCRs; or

d) Preclude the assessment of the Claimant’s actual legal costs, and therefore unfair under paragraph 1(q) of Schedule 2 to the UTCCRs.

It is for the Claimant to establish, on the balance of probabilities, the fairness of any clause which the Claimant seeks to rely in pursuing the costs, fees, or charges, and any other terms assessed for fairness under the UTCCRs.

e)By virtue of the unfair nature the Relevant Clause of the alleged Agreement, the Relevant Clause is not binding on the Defendant and all costs, charges, fees, and interest levied under that Clause is unenforceable, by virtue of Regulation 8(1) of the UTCCRs.

f) Further or alternatively, the Relevant Clause allows for the imposition of unspecified penalties which do not reflect any actual loss to the Claimant.

19. These penalties are therefore unenforceable at common law.

20. The Defendant has experienced alarm and distress which has been caused by the Claimant’s misleading actions under Regulation 27J of the 2008 Regulations. Specifically, the misleading actions of the Claimant in breach of the 2008 Regulations 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.

21. 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 could guess the correct web address. All that was required to guess the correct web address is a name, or part of a name. 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.

22. The Personal Data, as defined by section 1(1) of the Data Protection Act 1998, includes the Defendants:

1. 1. Full name;
   2. Home address;
   3. Home telephone number;
   4. Mobile phone number;
   5. Personal email address;
   6. Gender;
   7. Date of Birth
   8. Town of Birth
   9. IP Address
   10. Signature
   
   
   

23.The Defendant did not consent, and does not consent, to that Personal Data having been made, or continuing to be made, freely accessible through the internet.

24.The Claimant, in making that Personal Data freely available through the internet, has breached the First, Second, Third, Sixth, Seventh, and Eighth Data Protection Principles, as set out in s.4 and Schedule 1 of the Data Protection Act 1998.

25. The Claimant has failed in its duty to comply with the Data Protection Principles, contrary to s.4(4) of the Data Protection Act 1998.

The disclosure of the Personal Data, which has been disclosed on the Claim Form and has been made freely available through the internet, provides sufficient information to place the Defendant at serious risk of identity fraud. This disclosure of Personal Data and the risk of identity fraud has caused the Defendant distress, which has come about by reason of the Claimant’s contravention of the requirements of the Data Protection Act 1998.

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

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Transcript from their cancellation line as of today 28th Feb 2015: BPS Phone number 0203 6000145

Thankyou for calling the cancellation helpline, please note to use this service you will need the five digit code that you have been provided. Our company abides by all UK and EU trading and consumer laws permitting customers to cancel their contract at any point up until the time that we begin working on their request. However we regret to inform customers that if we have already begun the work then there is no option to cancel the contract or receive a refund as we would not be able to undo the services provided, work performed or time spent on your account. And so please be aware that if you have already been allocated an appointment that cancelling it through us or directly cancelling through the Government office does not cancel the contract that you entered with us or warrant a refund of the service charged.

If you have yet to make payment for the invoice then as agreed in the terms of service if the work has already begun payment will be required within 72 hours to avoid overdue invoice charges being added to your account. The reason we begin the service immediately is due to the fact that many consumers have time restraints and need the work fulfilled has soon as possible. As stated in the contract in cases where payment as not yet been received we begin the work in good faith so that customers receive our service as quickly as possible. If you would still like to cancel the appointment please enter the five digit cancellation code that you have been provided followed by the hash key. Providing the code has been entered correctly you will receive an email to confirm the cancellation, please enter this five digit number followed by the hash key now.

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

That's great Mandid, thank you for typing it out, do you happen to recall what the cancellation line said when you first rang it?

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

It was very similar but I don't recall all the warnings about not being able to cancel if the work had begun, the only prominent thing I remember is it saying I would get and email to confirm cancellation which I never got although now through their own admission I know they knew I had cancelled straight away. With this admission I still cannot get my head around how they can justify continuing with their so called work knowing I had cancelled. It's like ordering goods you don't want but having them forcefully delivered to your door when they know you don't want them and will not get paid! They are making uneccessary work for themselves in order to gain.

No thankyou Mr Milkman I don't want milk delivering anymore. Milkman "well I will just keep leaving pints of milk on your doorstep and try and force you to pay me just because I feel like it and then I will pretend I left you pints of milk and charge you for those as well!" I don't understand his mentality.

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Just cross referred my emails and texts and letters, I can confirm I can tie most up to correspond with their charges list. The four at the bottom have happened but not on the 17.2 much earlier in fact. It seems they have just tagged them on at the end. Some items in the initial £100.50 package I have not received and the Phone call at the bottom initial payment reminder call £5 is made up as I have not spoke to anybody at all.

The outbound letter and postage £10 dated 19.1 I can deny as it was sent recorded delivery but my postman very wrongly never asks me to sign them as he is lazy so I can deny receipt they will have no proof. And some items on the original service package I did not receive.
I have also noticed going back through my emails the link to the dropbox which they provided on one of their emails that showed on their system I cancelled at 12.31pm although I can show I rang to cancel at 12.06pm is now not working. Husband said he copied and pasted the link last time and now that does not work so something stinks there. I unfortunately now don't have a screen dump in print of that piece of evidence if they are hiding it. The email does prove they provided the link though and they say "it shows where you cancelled right here... link...."

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

No thankyou Mr Milkman I don't want milk delivering anymore. Milkman "well I will just keep leaving pints of milk on your doorstep and try and force you to pay me just because I feel like it and then I will pretend I left you pints of milk and charge you for those as well!" I don't understand his mentality.

I think that is exactly what he thinks.... 85% of claims are just settled. We know of 150 odd claims have default judgment or settled from his own site, there's about 30 on here who are defending - so if that was all the claims (which it isn't) then works out about 16% defending / 84% settling .... not bad odds.

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

Just cross referred my emails and texts and letters, I can confirm I can tie most up to correspond with their charges list. The four at the bottom have happened but not on the 17.2 much earlier in fact. It seems they have just tagged them on at the end. Some items in the initial £100.50 package I have not received and the Phone call at the bottom initial payment reminder call £5 is made up as I have not spoke to anybody at all.

The outbound letter and postage £10 dated 19.1 I can deny as it was sent recorded delivery but my postman very wrongly never asks me to sign them as he is lazy so I can deny receipt they will have no proof. And some items on the original service package I did not receive.
I have also noticed going back through my emails the link to the dropbox which they provided on one of their emails that showed on their system I cancelled at 12.31pm although I can show I rang to cancel at 12.06pm is now not working. Husband said he copied and pasted the link last time and now that does not work so something stinks there. I unfortunately now don't have a screen dump in print of that piece of evidence if they are hiding it. The email does prove they provided the link though and they say "it shows where you cancelled right here... link...."

That's all you need to show you cancelled, although tbh I don't believe you even need that as the contract is invalid anyway as you did not intend to contract with the company nor intend to purchase the services ( other than book an appointment - but even then you intended to do that with the HMPO not BPS ).

I wouldn't pretend not to have received anything, because as soon as one thing appears not right the rest is treated with suspicion. You are in the right so you can be completely honest. Can you paste/send me the email about the cancellation?

Do you know how come your ''package'' was £105.50 rather than £117.60 - did they refund something?

[Mandid]

Re: *** Mandid v BPS - claim received 21/2/2015

Yes they refunded the 30 minute consultation telephone call which was £14.25 after I complained I did not receive the email advising it was scheduled for 10.40am the following day but then they put it back on again. Could that be it?

I will email the email where they admit I cancelled which did have a working link a few weeks ago.

[Amethyst]

Re: *** Mandid v BPS - claim received 21/2/2015

Got that thank you. That (to me) looks likes their evidence bundle for court.... interesting.

Did you speak to the HMPO about the appointment btw ?

I'm going through the times etc now. Scary how much tracking they have on you really, but shows you didn't access any documents etc on their website till the 13th.... that's why they obsess about your IP address.

Seems they sent you confirmation and asked for payment before you ever filled in the form ...

(NB: It's says 8.31pm the time I cancelled which would be 12.31pm, I actually cancelled at 12.06 pm and made the online application at 11.58am. - 8 hour time difference )