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Re: *** Scammed v BPS - claim form dated 23/2/2015 - defence by March 28, 2015
Is this ok? I literally used what you said and changed it to our personal story. Basically the passport wasnt for me but for my son who was born 10 weeks prior to my encounter with Mr Howard... So i didnt end up travelling in the end as i got ill and needed an operation
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.
3. In August 2014 the Defendant required to get a new passport for her baby boy and was due to travel overseas on August 22nd 2014.
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.
5. She was misled into believing the Claimant’s telephone helpline and website was the official HM Passport Office website and completed a form online to book an appointment on 4th or 5th August. The Defendant was led to believe any fee stated was the payment to HM Passport Office for renewal of her passport.
6. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website and 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 he would not have taken otherwise and the Claimant used misrepresentations 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.
7. The alleged Agreement was conducted through the Defendant’s website, www.BritishPassportServices.org.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. It is denied the Defendant signed the alleged contract. The Claimant's form requested a digital signature for the passport application. Any mark made was not made with the intention of signing any agreement.
9. 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”.
10. Further, 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.
11. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it misled the Defendant 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.
12. 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.
13. The Defendant is therefore not liable under the alleged Agreement as set out in the Particulars of Claim or at all.
14 .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.
15.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”).
16.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. These penalties are therefore unenforceable at common law.
17. 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 continual telephone calls, emails, text messages and voice messages sent 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.
18. 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. The Claimant has amended this following complaints to the Claimant and Information Commissioner 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.
19. 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.
20. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.
Is this ok? I literally used what you said and changed it to our personal story. Basically the passport wasnt for me but for my son who was born 10 weeks prior to my encounter with Mr Howard... So i didnt end up travelling in the end as i got ill and needed an operation
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.
3. In August 2014 the Defendant required to get a new passport for her baby boy and was due to travel overseas on August 22nd 2014.
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.
5. She was misled into believing the Claimant’s telephone helpline and website was the official HM Passport Office website and completed a form online to book an appointment on 4th or 5th August. The Defendant was led to believe any fee stated was the payment to HM Passport Office for renewal of her passport.
6. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website and 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 he would not have taken otherwise and the Claimant used misrepresentations 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.
7. The alleged Agreement was conducted through the Defendant’s website, www.BritishPassportServices.org.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. It is denied the Defendant signed the alleged contract. The Claimant's form requested a digital signature for the passport application. Any mark made was not made with the intention of signing any agreement.
9. 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”.
10. Further, 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.
11. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it misled the Defendant 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.
12. 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.
13. The Defendant is therefore not liable under the alleged Agreement as set out in the Particulars of Claim or at all.
14 .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.
15.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”).
16.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. These penalties are therefore unenforceable at common law.
17. 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 continual telephone calls, emails, text messages and voice messages sent 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.
18. 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. The Claimant has amended this following complaints to the Claimant and Information Commissioner 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.
19. 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.
20. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.
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